EXHIBIT 4
GS MORTGAGE SECURITIES CORP.,
Depositor,
NATIONAL CITY HOME LOAN SERVICES, INC.,
Servicer,
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 2006
----------------------------------------
FFMLT TRUST 2006-FF13
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-FF13
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Definitions...................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans..................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans...............
Section 2.03 Representations, Warranties and Covenants of the
Servicer..................................................
Section 2.04 Execution and Delivery of Certificates........................
Section 2.05 REMIC Matters.................................................
Section 2.06 Representations and Warranties of the Depositor...............
Section 2.07 Enforcement of Obligations for Breach of Mortgage
Loan Representations......................................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans............................
Section 3.02 Subservicing Agreements between the Servicer and
Subservicers..............................................
Section 3.03 Successor Subservicers........................................
Section 3.04 Liability of the Servicer.....................................
Section 3.05 No Contractual Relationship between Subservicers and
the Trustee...............................................
Section 3.06 Assumption or Termination of Subservicing Agreements
by Trustee................................................
Section 3.07 Collection of Certain Mortgage Loan Payments..................
Section 3.08 Subservicing Accounts.........................................
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts...........................................
Section 3.10 Collection Accounts...........................................
Section 3.11 Withdrawals from the Collection Account.......................
Section 3.12 Investment of Funds in the Collection Accounts and
the Distribution Account..................................
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions
and Fidelity Coverage.....................................
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption
Agreements................................................
Section 3.15 Realization upon Defaulted Mortgage Loans.....................
Section 3.16 Release of Mortgage Files.....................................
Section 3.17 Title, Conservation and Disposition of REO Property...........
Section 3.18 Notification of Adjustments...................................
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans..............................
Section 3.20 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Trustee.......................
Section 3.21 Servicing Compensation........................................
Section 3.22 Annual Statement as to Compliance.............................
Section 3.23 Annual Reports on Assessment of Compliance with
Servicing Criteria; Annual Independent Public
Accountants' Attestation Report...........................
Section 3.24 Trustee to Act as Servicer....................................
Section 3.25 Compensating Interest.........................................
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act......................
Section 3.27 Excess Reserve Fund Account; Distribution Account.............
Section 3.28 Optional Purchase of Delinquent Mortgage Loans................
Section 3.29 Special Servicing of 60+ Delinquent Mortgage Loans............
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances......................................................
Section 4.02 Priorities of Distribution....................................
Section 4.03 Monthly Statements to Certificateholders......................
Section 4.04 Certain Matters Relating to the Determination of LIBOR........
Section 4.05 Allocation of Applied Realized Loss Amounts...................
Section 4.06 Supplemental Interest Trust...................................
Section 4.07 Swap Collateral Account.......................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates..............................................
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates..................................
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.............
Section 5.04 Persons Deemed Owners.........................................
Section 5.05 Access to List of Certificateholders' Names and
Addresses.................................................
Section 5.06 Maintenance of Office or Agency...............................
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.01 Respective Liabilities of the Depositor and the
Servicer..................................................
Section 6.02 Merger or Consolidation of the Depositor or the
Servicer..................................................
Section 6.03 Limitation on Liability of the Depositor, the
Servicer and Others.......................................
Section 6.04 Limitation on Resignation of the Servicer.....................
Section 6.05 Additional Indemnification by the Servicer; Third
Party Claims..............................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.............................................
Section 7.02 Trustee to Act; Appointment of Successor Servicer.............
Section 7.03 Notification to Certificateholders............................
Section 7.04 No Termination Without Cause..................................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee.........................................
Section 8.02 Certain Matters Affecting the Trustee.........................
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.........
Section 8.04 Trustee May Own Certificates..................................
Section 8.05 Trustee's Fees and Expenses...................................
Section 8.06 Eligibility Requirements for the Trustee......................
Section 8.07 Resignation and Removal of the Trustee........................
Section 8.08 Successor Trustee.............................................
Section 8.09 Merger or Consolidation of the Trustee........................
Section 8.10 Appointment of Co-Trustee or Separate Trustee.................
Section 8.11 Tax Matters...................................................
Section 8.12 Periodic Filings..............................................
Section 8.13 Tax Treatment of Upper-Tier Carry Forward Amounts,
Basis Risk Carry Forward Amounts, the
Supplemental Interest Trust and the Interest Rate
Swap Agreement............................................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans............................................
Section 9.02 Final Distribution on the Certificates........................
Section 9.03 Additional Termination Requirements...........................
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment.....................................................
Section 10.02 Recordation of Agreement; Counterparts........................
Section 10.03 Governing Law.................................................
Section 10.04 Intention of Parties..........................................
Section 10.05 Notices.......................................................
Section 10.06 Severability of Provisions....................................
Section 10.07 Assignment; Sales; Advance Facilities.........................
Section 10.08 Limitation on Rights of Certificateholders....................
Section 10.09 Inspection and Audit Rights...................................
Section 10.10 Certificates Nonassessable and Fully Paid.....................
Section 10.11 Waiver of Jury Trial..........................................
Section 10.12 Limitation of Damages.........................................
Section 10.13 Rights of the Swap Provider...................................
Section 10.14 No Solicitation...............................................
Section 10.15 Regulation AB Compliance; Intent of the Parties;
Reasonableness............................................
SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of NCHLS, as the Servicer
EXHIBITS
Exhibit A-1 Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class P Certificate
Exhibit C Form of Class C Certificate
Exhibit D-1 Form of Class R Certificate
Exhibit D-2 Form of Class RC Certificate
Exhibit D-3 Form of Class RX Certificate
Exhibit E Form of Class X Certificate
Exhibit F Form of Initial Certification of the Trustee
Exhibit G Form of Document Certification and Exception Report of Trustee
Exhibit H Form of Residual Transfer Affidavit
Exhibit I Form of Transferor Certificate
Exhibit J Form of Rule 144A Letter
Exhibit K Form of Investment Letter (Non-Rule 144A)
Exhibit L Form of Request for Release
Exhibit M Contents of Each Mortgage File
Exhibit N Servicer Reporting Requirements
Exhibit O Form of Certification to be provided with Form 10-K
Exhibit P Form of Trustee Certification to be provided to Depositor
Exhibit Q Form of Servicer Certification to be provided to Depositor
Exhibit R Form of Power of Attorney
Exhibit S Responsible Party Agreements
Exhibit T Servicing Criteria
Exhibit U Additional Form 10-D Disclosure
Exhibit V Additional Form 10-K Disclosure
Exhibit W Form 8-K Disclosure Information
Exhibit X Interest Rate Swap Agreement
Exhibit Y Form of Additional Disclosure Notification
Exhibit Z Xxxxx Fargo Agreements
THIS POOLING AND SERVICING AGREEMENT, dated as of September 1,
2006, is among GS MORTGAGE SECURITIES CORP., a Delaware corporation (the
"Depositor"), NATIONAL CITY HOME LOAN SERVICES, INC., a Delaware corporation
("NCHLS"), as Servicer, and DEUTSCHE BANK NATIONAL TRUST COMPANY, a national
banking association, as trustee (the "Trustee").
W I T N E S S E T H:
--------------------
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Trustee shall elect that five segregated asset pools within
the Trust Fund (exclusive of (i) the Prepayment Premiums, (ii) the Interest Rate
Swap Agreement, (iii) the Supplemental Interest Trust, (iv) the Excess Reserve
Fund Account, and (v) the right of the LIBOR Certificates to receive Upper-Tier
Carry Forward Amounts and, without duplication, Basis Risk Carry Forward Amounts
and the obligation to pay Class IO Shortfalls) be treated for federal income tax
purposes as comprising five REMICs (each, a "Trust REMIC" or, in the
alternative, Pooling-Tier REMIC-1, Pooling-Tier REMIC-2, the Lower-Tier REMIC,
the Upper-Tier REMIC and the Class X REMIC, respectively). The Class X Interest,
Class IO Interest and each Class of LIBOR Certificates (other than the right of
each Class of LIBOR Certificates to receive (i) Basis Risk Carry Forward Amounts
and, without duplication, Upper-Tier Carry Forward Amounts and (ii) the
obligation to pay Class IO Shortfalls) represents ownership of a regular
interest in a REMIC for purposes of the REMIC Provisions.
The Class RX Certificates represent ownership of the sole class of
residual interest in the Class X REMIC for purposes of the REMIC Provisions. The
Class RC Certificates represent ownership of the sole class of residual interest
in Pooling-Tier REMIC-1 for purposes of the REMIC Provisions. The Class R
Certificates represent ownership of the sole class of residual interest in each
of Pooling-Tier REMIC-2, the Lower-Tier REMIC and the Upper-Tier REMIC for
purposes of the REMIC Provisions.
The Start-up Day for each Trust REMIC is the Closing Date. The
latest possible maturity date for each regular interest is the latest date
referenced in Section 2.05.
The Class X REMIC shall hold as assets the Class UT-X Interest,
the Class UT-IO Interest and the Class UT-3 Interest as set out below. The
Upper-Tier REMIC shall hold as assets the several classes of uncertificated
Lower-Tier Regular Interests, set out below. The Lower-Tier REMIC shall hold as
assets the several classes of uncertificated Pooling-Tier REMIC-2 Regular
Interests. Pooling-Tier REMIC-2 shall hold as assets the several classes of
uncertificated Pooling-Tier REMIC-1 Regular Interests. Pooling-Tier REMIC-1
shall hold as assets the assets of the Trust Fund (exclusive of (i) the
Prepayment Premiums, (ii) the Interest Rate Swap Agreement, (iii) the
Supplemental Interest Trust, (iv) the Excess Reserve Fund Account and (v) the
right of the LIBOR Certificates to receive Basis Risk Carry Forward Amounts and,
without duplication, Upper-Tier Carry Forward Amounts and the obligation to pay
Class IO Shortfalls). Each such Lower Tier Regular Interest is hereby designated
as a regular interest in the Lower Tier REMIC. The Class LT-A-1, Class LT-A-2A,
Class LT-A-2B, Class LT-A-2C, Class LT-A-2D, Class LT-M-1, Class LT-M-2, Class
LT-M-3, Class LT-M-4, Class LT-M-5, Class LT-M-6, Class LT-M-7, Class LT-M-8,
Class LT-M-9, Class LT-B-1 and Class LT-B-2 Interests are hereby designated the
LT-Accretion Directed Classes (the "LT-Accretion Directed Classes").
The Class X REMIC shall hold as assets the Class UT-X Interest,
the Class UT-IO Interest and the Class UT-3 Interest issued by the Upper-Tier
REMIC, the Class X Interest and the Class IO Interest shall represent the
regular interests issued by the Class X REMIC and the Class RX Interest shall
represent the sole class residual interest in the Class X REMIC. The Class X
Certificates shall represent beneficial ownership of the Class X Interest, the
Class IO Interest, the Supplemental Interest Trust and the Excess Reserve Fund
Account.
For federal income tax purposes, each Class of LIBOR Certificates,
the Class X Certificates and the Class P Certificates represent beneficial
ownership of portions of the Trust Fund which shall be treated as a grantor
trust as more fully described in Section 8.11.
Pooling-Tier REMIC-1
--------------------
Pooling-Tier REMIC-1 shall issue the following interests in
Pooling-Tier REMIC-1, and each such interest is hereby designated as a regular
interest in the Pooling-Tier REMIC-1. Pooling-Tier REMIC-1 Interests with an "I"
in their designation shall relate to Loan Group I and Pooling Tier REMIC-1
Interests with a "II" in their designation shall relate to Loan Group II.
Pooling-Tier REMIC-1 shall also issue the Class RC Certificates. The Class RC
Certificates are hereby designated as the sole class of residual interest in
Pooling-Tier REMIC-1. The Class RC Certificates shall have a $100 Class
Certificate Balance and shall have no interest rate.
Initial Pooling-Tier
Pooling-Tier Pooling-Tier REMIC-1 REMIC-1 Principal
REMIC-1 Interest Interest Rate Amount
--------------------- -------------------- --------------------
Class PT1-I-1 (1) $ 6,043,264.20
Class PT1-I-2A (2) $ 1,917,220.88
Class PT1-I-2B (3) $ 1,917,220.88
Class PT1-I-3A (2) $ 2,366,736.32
Class PT1-I-3B (3) $ 2,366,736.32
Class PT1-I-4A (2) $ 2,812,741.79
Class PT1-I-4B (3) $ 2,812,741.79
Class PT1-I-5A (2) $ 3,251,368.39
Class PT1-I-5B (3) $ 3,251,368.39
Class PT1-I-6A (2) $ 3,678,624.31
Class PT1-I-6B (3) $ 3,678,624.31
Class PT1-I-7A (2) $ 4,090,439.73
Class PT1-I-7B (3) $ 4,090,439.73
Class PT1-I-8A (2) $ 4,482,690.97
Class PT1-I-8B (3) $ 4,482,690.97
Class PT1-I-9A (2) $ 4,851,344.74
Class PT1-I-9B (3) $ 4,851,344.74
Class PT1-I-10A (2) $ 5,191,719.21
Class PT1-I-10B (3) $ 5,191,719.21
Class PT1-I-11A (2) $ 5,499,458.00
Class PT1-I-11B (3) $ 5,499,458.00
Class PT1-I-12A (2) $ 5,266,804.98
Class PT1-I-12B (3) $ 5,266,804.98
Class PT1-I-13A (2) $ 5,018,997.06
Class PT1-I-13B (3) $ 5,018,997.06
Class PT1-I-14A (2) $ 4,782,958.36
Class PT1-I-14B (3) $ 4,782,958.36
Class PT1-I-15A (2) $ 4,558,102.73
Class PT1-I-15B (3) $ 4,558,102.73
Class PT1-I-16A (2) $ 4,343,897.17
Class PT1-I-16B (3) $ 4,343,897.17
Class PT1-I-17A (2) $ 4,139,834.18
Class PT1-I-17B (3) $ 4,139,834.18
Class PT1-I-18A (2) $ 3,945,425.93
Class PT1-I-18B (3) $ 3,945,425.93
Class PT1-I-19A (2) $ 3,760,217.19
Class PT1-I-19B (3) $ 3,760,217.19
Class PT1-I-20A (2) $ 3,584,093.20
Class PT1-I-20B (3) $ 3,584,093.20
Class PT1-I-21A (2) $ 3,415,932.63
Class PT1-I-21B (3) $ 3,415,932.63
Class PT1-I-22A (2) $ 3,263,185.32
Class PT1-I-22B (3) $ 3,263,185.32
Class PT1-I-23A (2) $ 3,119,019.92
Class PT1-I-23B (3) $ 3,119,019.92
Class PT1-I-24A (2) $ 7,652,301.88
Class PT1-I-24B (3) $ 7,652,301.88
Class PT1-I-25A (2) $ 6,779,273.33
Class PT1-I-25B (3) $ 6,779,273.33
Class PT1-I-26A (2) $ 5,834,527.87
Class PT1-I-26B (3) $ 5,834,527.87
Class PT1-I-27A (2) $ 2,462,226.63
Class PT1-I-27B (3) $ 2,462,226.63
Class PT1-I-28A (2) $ 2,204,197.31
Class PT1-I-28B (3) $ 2,204,197.31
Class PT1-I-29A (2) $ 2,081,322.08
Class PT1-I-29B (3) $ 2,081,322.08
Class PT1-I-30A (2) $ 1,965,439.85
Class PT1-I-30B (3) $ 1,965,439.85
Class PT1-I-31A (2) $ 1,856,229.37
Class PT1-I-31B (3) $ 1,856,229.37
Class PT1-I-32A (2) $ 1,753,258.20
Class PT1-I-32B (3) $ 1,753,258.20
Class PT1-I-33A (2) $ 1,316,432.07
Class PT1-I-33B (3) $ 1,316,432.07
Class PT1-I-34A (2) $ 1,419,120.95
Class PT1-I-34B (3) $ 1,419,120.95
Class PT1-I-35A (2) $ 1,340,312.39
Class PT1-I-35B (3) $ 1,340,312.39
Class PT1-I-36A (2) $ 1,266,600.10
Class PT1-I-36B (3) $ 1,266,600.10
Class PT1-I-37A (2) $ 1,197,109.35
Class PT1-I-37B (3) $ 1,197,109.35
Class PT1-I-38A (2) $ 1,131,551.78
Class PT1-I-38B (3) $ 1,131,551.78
Class PT1-I-39A (2) $ 1,069,699.82
Class PT1-I-39B (3) $ 1,069,699.82
Class PT1-I-40A (2) $ 1,011,339.27
Class PT1-I-40B (3) $ 1,011,339.27
Class PT1-I-41A (2) $ 985,655.61
Class PT1-I-41B (3) $ 985,655.61
Class PT1-I-42A (2) $ 941,960.39
Class PT1-I-42B (3) $ 941,960.39
Class PT1-I-43A (2) $ 890,869.13
Class PT1-I-43B (3) $ 890,869.13
Class PT1-I-44A (2) $ 842,645.51
Class PT1-I-44B (3) $ 842,645.51
Class PT1-I-45A (2) $ 797,124.55
Class PT1-I-45B (3) $ 797,124.55
Class PT1-I-46A (2) $ 754,150.96
Class PT1-I-46B (3) $ 754,150.96
Class PT1-I-47A (2) $ 713,578.47
Class PT1-I-47B (3) $ 713,578.47
Class PT1-I-48A (2) $ 675,269.47
Class PT1-I-48B (3) $ 675,269.47
Class PT1-I-49A (2) $ 639,094.25
Class PT1-I-49B (3) $ 639,094.25
Class PT1-I-50A (2) $ 604,930.75
Class PT1-I-50B (3) $ 604,930.75
Class PT1-I-51A (2) $ 572,663.97
Class PT1-I-51B (3) $ 572,663.97
Class PT1-I-52A (2) $ 542,185.65
Class PT1-I-52B (3) $ 542,185.65
Class PT1-I-53A (2) $ 513,393.81
Class PT1-I-53B (3) $ 513,393.81
Class PT1-I-54A (2) $ 486,192.39
Class PT1-I-54B (3) $ 486,192.39
Class PT1-I-55A (2) $ 460,490.94
Class PT1-I-55B (3) $ 460,490.94
Class PT1-I-56A (2) $ 436,204.24
Class PT1-I-56B (3) $ 436,204.24
Class PT1-I-57A (2) $ 413,253.21
Class PT1-I-57B (3) $ 413,253.21
Class PT1-I-58A (2) $ 391,568.48
Class PT1-I-58B (3) $ 391,568.48
Class PT1-I-59A (2) $ 372,317.78
Class PT1-I-59B (3) $ 372,317.78
Class PT1-I-60A (2) $ 6,347,119.09
Class PT1-I-60B (3) $ 6,347,119.09
Class PT1-II-1 (4) $36,388,503.48
Class PT1-II-2A (5) $11,544,033.48
Class PT1-II-2B (6) $11,544,033.48
Class PT1-II-3A (5) $14,250,670.62
Class PT1-II-3B (6) $14,250,670.62
Class PT1-II-4A (5) $16,936,173.43
Class PT1-II-4B (6) $16,936,173.43
Class PT1-II-5A (5) $19,577,246.37
Class PT1-II-5B (6) $19,577,246.37
Class PT1-II-6A (5) $22,149,853.80
Class PT1-II-6B (6) $22,149,853.80
Class PT1-II-7A (5) $24,629,490.37
Class PT1-II-7B (6) $24,629,490.37
Class PT1-II-8A (5) $26,991,326.46
Class PT1-II-8B (6) $26,991,326.46
Class PT1-II-9A (5) $29,211,076.63
Class PT1-II-9B (6) $29,211,076.63
Class PT1-II-10A (5) $31,260,550.58
Class PT1-II-10B (6) $31,260,550.58
Class PT1-II-11A (5) $33,113,517.52
Class PT1-II-11B (6) $33,113,517.52
Class PT1-II-12A (5) $31,712,659.50
Class PT1-II-12B (6) $31,712,659.50
Class PT1-II-13A (5) $30,220,550.34
Class PT1-II-13B (6) $30,220,550.34
Class PT1-II-14A (5) $28,799,306.30
Class PT1-II-14B (6) $28,799,306.30
Class PT1-II-15A (5) $27,445,398.20
Class PT1-II-15B (6) $27,445,398.20
Class PT1-II-16A (5) $26,155,616.62
Class PT1-II-16B (6) $26,155,616.62
Class PT1-II-17A (5) $24,926,905.82
Class PT1-II-17B (6) $24,926,905.82
Class PT1-II-18A (5) $23,756,328.49
Class PT1-II-18B (6) $23,756,328.49
Class PT1-II-19A (5) $22,641,143.54
Class PT1-II-19B (6) $22,641,143.54
Class PT1-II-20A (5) $21,580,659.95
Class PT1-II-20B (6) $21,580,659.95
Class PT1-II-21A (5) $20,568,125.98
Class PT1-II-21B (6) $20,568,125.98
Class PT1-II-22A (5) $19,648,398.89
Class PT1-II-22B (6) $19,648,398.89
Class PT1-II-23A (5) $18,780,345.42
Class PT1-II-23B (6) $18,780,345.42
Class PT1-II-24A (5) $46,076,291.95
Class PT1-II-24B (6) $46,076,291.95
Class PT1-II-25A (5) $40,819,583.73
Class PT1-II-25B (6) $40,819,583.73
Class PT1-II-26A (5) $35,131,051.27
Class PT1-II-26B (6) $35,131,051.27
Class PT1-II-27A (5) $14,825,640.07
Class PT1-II-27B (6) $14,825,640.07
Class PT1-II-28A (5) $13,271,985.43
Class PT1-II-28B (6) $13,271,985.43
Class PT1-II-29A (5) $12,532,125.04
Class PT1-II-29B (6) $12,532,125.04
Class PT1-II-30A (5) $11,834,371.10
Class PT1-II-30B (6) $11,834,371.10
Class PT1-II-31A (5) $11,176,789.36
Class PT1-II-31B (6) $11,176,789.36
Class PT1-II-32A (5) $10,556,776.00
Class PT1-II-32B (6) $10,556,776.00
Class PT1-II-33A (5) $ 7,926,544.09
Class PT1-II-33B (6) $ 7,926,544.09
Class PT1-II-34A (5) $ 8,544,857.80
Class PT1-II-34B (6) $ 8,544,857.80
Class PT1-II-35A (5) $ 8,070,333.10
Class PT1-II-35B (6) $ 8,070,333.10
Class PT1-II-36A (5) $ 7,626,494.24
Class PT1-II-36B (6) $ 7,626,494.24
Class PT1-II-37A (5) $ 7,208,074.21
Class PT1-II-37B (6) $ 7,208,074.21
Class PT1-II-38A (5) $ 6,813,336.82
Class PT1-II-38B (6) $ 6,813,336.82
Class PT1-II-39A (5) $ 6,440,911.76
Class PT1-II-39B (6) $ 6,440,911.76
Class PT1-II-40A (5) $ 6,089,509.29
Class PT1-II-40B (6) $ 6,089,509.29
Class PT1-II-41A (5) $ 5,934,862.03
Class PT1-II-41B (6) $ 5,934,862.03
Class PT1-II-42A (5) $ 5,671,762.90
Class PT1-II-42B (6) $ 5,671,762.90
Class PT1-II-43A (5) $ 5,364,130.55
Class PT1-II-43B (6) $ 5,364,130.55
Class PT1-II-44A (5) $ 5,073,764.86
Class PT1-II-44B (6) $ 5,073,764.86
Class PT1-II-45A (5) $ 4,799,672.57
Class PT1-II-45B (6) $ 4,799,672.57
Class PT1-II-46A (5) $ 4,540,918.57
Class PT1-II-46B (6) $ 4,540,918.57
Class PT1-II-47A (5) $ 4,296,622.19
Class PT1-II-47B (6) $ 4,296,622.19
Class PT1-II-48A (5) $ 4,065,954.73
Class PT1-II-48B (6) $ 4,065,954.73
Class PT1-II-49A (5) $ 3,848,135.36
Class PT1-II-49B (6) $ 3,848,135.36
Class PT1-II-50A (5) $ 3,642,428.94
Class PT1-II-50B (6) $ 3,642,428.94
Class PT1-II-51A (5) $ 3,448,143.17
Class PT1-II-51B (6) $ 3,448,143.17
Class PT1-II-52A (5) $ 3,264,626.11
Class PT1-II-52B (6) $ 3,264,626.11
Class PT1-II-53A (5) $ 3,091,263.70
Class PT1-II-53B (6) $ 3,091,263.70
Class PT1-II-54A (5) $ 2,927,477.65
Class PT1-II-54B (6) $ 2,927,477.65
Class PT1-II-55A (5) $ 2,772,723.22
Class PT1-II-55B (6) $ 2,772,723.22
Class PT1-II-56A (5) $ 2,626,487.31
Class PT1-II-56B (6) $ 2,626,487.31
Class PT1-II-57A (5) $ 2,488,293.81
Class PT1-II-57B (6) $ 2,488,293.81
Class PT1-II-58A (5) $ 2,357,725.03
Class PT1-II-58B (6) $ 2,357,725.03
Class PT1-II-59A (5) $ 2,241,812.07
Class PT1-II-59B (6) $ 2,241,812.07
Class PT1-II-60A (5) $38,217,482.40
Class PT1-II-60B (6) $38,217,482.40
Class PT1-R (7) $ 100
--------------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group I WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling-Tier REMIC-1 Loan Group I WAC Rate, subject to
a maximum rate equal to the applicable Fixed Swap Rate.
(3) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling-Tier REMIC-1 Loan
Group I WAC Rate over (B) the applicable Fixed Swap Rate.
(4) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group II WAC Rate.
(5) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the product of
(i) 2 and (ii) the Pooling-Tier REMIC-1 Loan Group II WAC Rate, subject
to a maximum rate equal to the applicable Fixed Swap Rate.
(6) For any Distribution Date (and the related Interest Accrual Period) this
Pooling-Tier REMIC-1 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-1 Interest Rate") equal to the excess, if
any, of (A) the product of (i) 2 and (ii) the Pooling-Tier REMIC-1 Loan
Group II WAC Rate over (B) the applicable Fixed Swap Rate.
(7) The Class PT1-R Interest shall not bear interest.
On each Distribution Date, the Trustee shall first pay from the
Trust Fund and charge as an expense of Pooling-Tier REMIC-1 all expenses of the
Trust for such Distribution Date. Such expense, other than Servicing Fees and
Trustee Fees, shall be allocated in the same manner as Realized Losses.
On each Distribution Date, the interest distributable in respect
of the Mortgage Loans from the related Loan Group for such Distribution Date
shall be deemed to be distributed to the Pooling-Tier REMIC-1 Regular Interests
at the rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group I Mortgage Loans shall be
allocated to the Class RC Certificates pursuant to Section 4.02(a)(iii) until
its Class Certificate Balance is reduced to zero, then to the outstanding
Pooling-Tier REMIC-1 Regular Interest relating to Loan Group I with the lowest
numerical denomination until the Pooling-Tier REMIC-1 Principal Amount of such
interest is reduced to zero, provided that, with respect to Pooling-Tier REMIC-1
Regular Interests relating to Loan Group I with the same numerical denomination,
such Realized Losses and payments of principal shall be allocated pro rata
between such Pooling-Tier REMIC-1 Regular Interests, until the Pooling-Tier
REMIC-1 Principal Amount of such interest is reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group II Mortgage Loans shall be
allocated to the outstanding Pooling-Tier REMIC-1 Regular Interest relating to
Loan Group II with the lowest numerical denomination until the Pooling-Tier
REMIC-1 Principal Amount of such interest is reduced to zero, provided that,
with respect to Pooling-Tier REMIC-1 Regular Interests relating to Loan Group II
with the same numerical denomination, such Realized Losses and payments of
principal shall be allocated pro rata between such Pooling-Tier REMIC-1 Regular
Interests, until the Pooling-Tier REMIC-1 Principal Amount of such interest is
reduced to zero.
Pooling-Tier REMIC-2
Pooling-Tier REMIC-2 shall issue the following interests in
Pooling-Tier REMIC-2, and each such interest, other than the Class PT2-R
Interest, is hereby designated as a regular interest in Pooling-Tier REMIC-2.
Pooling-Tier REMIC-2 Interests with an "I" in their designation shall relate to
Loan Group I and Pooling Tier REMIC-2 Interests with a "II" in their designation
shall relate to Loan Group II. The Class PT2-R Interest is hereby designated as
the sole class of residual interest in Pooling-Tier REMIC-2 and shall be
represented by the Class R Certificates.
Pooling-Tier Corresponding Corresponding Corresponding
REMIC-2 Pooling-Tier Pooling-Tier Pooling-Tier Scheduled
Pooling-Tier Interest REMIC-2 Initial REMIC-2 IO REMIC-1 Regular Crossover
REMIC-2 Interest Rate Principal Amount Interest Interest Distribution Date
------------------ ------------ ---------------- ------------- --------------- -----------------
Class PT2-I-1 (1) $ 6,043,214.20 N/A N/A N/A
Class PT2-I-2A (2) $ 1,917,220.88 Class PT2-I-IO-2 N/A N/A
Class PT2-I-2B (3) $ 1,917,220.88 N/A N/A N/A
Class PT2-I-3A (2) $ 2,366,736.32 Class PT2-I-IO-3 N/A N/A
Class PT2-I-3B (3) $ 2,366,736.32 N/A N/A N/A
Class PT2-I-4A (2) $ 2,812,741.79 Class PT2-I-IO-4 N/A N/A
Class PT2-I-4B (3) $ 2,812,741.79 N/A N/A N/A
Class PT2-I-5A (2) $ 3,251,368.39 Class PT2-I-IO-5 N/A N/A
Class PT2-I-5B (3) $ 3,251,368.39 N/A N/A N/A
Class PT2-I-6A (2) $ 3,678,624.31 Class PT2-I-IO-6 N/A N/A
Class PT2-I-6B (3) $ 3,678,624.31 N/A N/A N/A
Class PT2-I-7A (2) $ 4,090,439.73 Class PT2-I-IO-7 N/A N/A
Class PT2-I-7B (3) $ 4,090,439.73 N/A N/A N/A
Class PT2-I-8A (2) $ 4,482,690.97 Class PT2-I-IO-8 N/A N/A
Class PT2-I-8B (3) $ 4,482,690.97 N/A N/A N/A
Class PT2-I-9A (2) $ 4,851,344.74 Class PT2-I-IO-9 N/A N/A
Class PT2-I-9B (3) $ 4,851,344.74 N/A N/A N/A
Class PT2-I-10A (2) $ 5,191,719.21 Class PT2-I-IO-10 N/A N/A
Class PT2-I-10B (3) $ 5,191,719.21 N/A N/A N/A
Class PT2-I-11A (2) $ 5,499,458.00 Class PT2-I-IO-11 N/A N/A
Class PT2-I-11B (3) $ 5,499,458.00 N/A N/A N/A
Class PT2-I-12A (2) $ 5,266,804.98 Class PT2-I-IO-12 N/A N/A
Class PT2-I-12B (3) $ 5,266,804.98 N/A N/A N/A
Class PT2-I-13A (2) $ 5,018,997.06 Class PT2-I-IO-13 N/A N/A
Class PT2-I-13B (3) $ 5,018,997.06 N/A N/A N/A
Class PT2-I-14A (2) $ 4,782,958.36 Class PT2-I-IO-14 N/A N/A
Class PT2-I-14B (3) $ 4,782,958.36 N/A N/A N/A
Class PT2-I-15A (2) $ 4,558,102.73 Class PT2-I-IO-15 N/A N/A
Class PT2-I-15B (3) $ 4,558,102.73 N/A N/A N/A
Class PT2-I-16A (2) $ 4,343,897.17 Class PT2-I-IO-16 N/A N/A
Class PT2-I-16B (3) $ 4,343,897.17 N/A N/A N/A
Class PT2-I-17A (2) $ 4,139,834.18 Class PT2-I-IO-17 N/A N/A
Class PT2-I-17B (3) $ 4,139,834.18 N/A N/A N/A
Class PT2-I-18A (2) $ 3,945,425.93 Class PT2-I-IO-18 N/A N/A
Class PT2-I-18B (3) $ 3,945,425.93 N/A N/A N/A
Class PT2-I-19A (2) $ 3,760,217.19 Class PT2-I-IO-19 N/A N/A
Class PT2-I-19B (3) $ 3,760,217.19 N/A N/A N/A
Class PT2-I-20A (2) $ 3,584,093.20 Class PT2-I-IO-20 N/A N/A
Class PT2-I-20B (3) $ 3,584,093.20 N/A N/A N/A
Class PT2-I-21A (2) $ 3,415,932.63 Class PT2-I-IO-21 N/A N/A
Class PT2-I-21B (3) $ 3,415,932.63 N/A N/A N/A
Class PT2-I-22A (2) $ 3,263,185.32 Class PT2-I-IO-22 N/A N/A
Class PT2-I-22B (3) $ 3,263,185.32 N/A N/A N/A
Class PT2-I-23A (2) $ 3,119,019.92 Class PT2-I-IO-23 N/A N/A
Class PT2-I-23B (3) $ 3,119,019.92 N/A N/A N/A
Class PT2-I-24A (2) $ 7,652,301.88 Class PT2-I-IO-24 N/A N/A
Class PT2-I-24B (3) $ 7,652,301.88 N/A N/A N/A
Class PT2-I-25A (2) $ 6,779,273.33 Class PT2-I-IO-25 N/A N/A
Class PT2-I-25B (3) $ 6,779,273.33 N/A N/A N/A
Class PT2-I-26A (2) $ 5,834,527.87 Class PT2-I-IO-26 N/A N/A
Class PT2-I-26B (3) $ 5,834,527.87 N/A N/A N/A
Class PT2-I-27A (2) $ 2,462,226.63 Class PT2-I-IO-27 N/A N/A
Class PT2-I-27B (3) $ 2,462,226.63 N/A N/A N/A
Class PT2-I-28A (2) $ 2,204,197.31 Class PT2-I-IO-28 N/A N/A
Class PT2-I-28B (3) $ 2,204,197.31 N/A N/A N/A
Class PT2-I-29A (2) $ 2,081,322.08 Class PT2-I-IO-29 N/A N/A
Class PT2-I-29B (3) $ 2,081,322.08 N/A N/A N/A
Class PT2-I-30A (2) $ 1,965,439.85 Class PT2-I-IO-30 N/A N/A
Class PT2-I-30B (3) $ 1,965,439.85 N/A N/A N/A
Class PT2-I-31A (2) $ 1,856,229.37 Class PT2-I-IO-31 N/A N/A
Class PT2-I-31B (3) $ 1,856,229.37 N/A N/A N/A
Class PT2-I-32A (2) $ 1,753,258.20 Class PT2-I-IO-32 N/A N/A
Class PT2-I-32B (3) $ 1,753,258.20 N/A N/A N/A
Class PT2-I-33A (2) $ 1,316,432.07 Class PT2-I-IO-33 N/A N/A
Class PT2-I-33B (3) $ 1,316,432.07 N/A N/A N/A
Class PT2-I-34A (2) $ 1,419,120.95 Class PT2-I-IO-34 N/A N/A
Class PT2-I-34B (3) $ 1,419,120.95 N/A N/A N/A
Class PT2-I-35A (2) $ 1,340,312.39 Class PT2-I-IO-35 N/A N/A
Class PT2-I-35B (3) $ 1,340,312.39 N/A N/A N/A
Class PT2-I-36A (2) $ 1,266,600.10 Class PT2-I-IO-36 N/A N/A
Class PT2-I-36B (3) $ 1,266,600.10 N/A N/A N/A
Class PT2-I-37A (2) $ 1,197,109.35 Class PT2-I-IO-37 N/A N/A
Class PT2-I-37B (3) $ 1,197,109.35 N/A N/A N/A
Class PT2-I-38A (2) $ 1,131,551.78 Class PT2-I-IO-38 N/A N/A
Class PT2-I-38B (3) $ 1,131,551.78 N/A N/A N/A
Class PT2-I-39A (2) $ 1,069,699.82 Class PT2-I-IO-39 N/A N/A
Class PT2-I-39B (3) $ 1,069,699.82 N/A N/A N/A
Class PT2-I-40A (2) $ 1,011,339.27 Class PT2-I-IO-40 N/A N/A
Class PT2-I-40B (3) $ 1,011,339.27 N/A N/A N/A
Class PT2-I-41A (2) $ 985,655.61 Class PT2-I-IO-41 N/A N/A
Class PT2-I-41B (3) $ 985,655.61 N/A N/A N/A
Class PT2-I-42A (2) $ 941,960.39 Class PT2-I-IO-42 N/A N/A
Class PT2-I-42B (3) $ 941,960.39 N/A N/A N/A
Class PT2-I-43A (2) $ 890,869.13 Class PT2-I-IO-43 N/A N/A
Class PT2-I-43B (3) $ 890,869.13 N/A N/A N/A
Class PT2-I-44A (2) $ 842,645.51 Class PT2-I-IO-44 N/A N/A
Class PT2-I-44B (3) $ 842,645.51 N/A N/A N/A
Class PT2-I-45A (2) $ 797,124.55 Class PT2-I-IO-45 N/A N/A
Class PT2-I-45B (3) $ 797,124.55 N/A N/A N/A
Class PT2-I-46A (2) $ 754,150.96 Class PT2-I-IO-46 N/A N/A
Class PT2-I-46B (3) $ 754,150.96 N/A N/A N/A
Class PT2-I-47A (2) $ 713,578.47 Class PT2-I-IO-47 N/A N/A
Class PT2-I-47B (3) $ 713,578.47 N/A N/A N/A
Class PT2-I-48A (2) $ 675,269.47 Class PT2-I-IO-48 N/A N/A
Class PT2-I-48B (3) $ 675,269.47 N/A N/A N/A
Class PT2-I-49A (2) $ 639,094.25 Class PT2-I-IO-49 N/A N/A
Class PT2-I-49B (3) $ 639,094.25 N/A N/A N/A
Class PT2-I-50A (2) $ 604,930.75 Class PT2-I-IO-50 N/A N/A
Class PT2-I-50B (3) $ 604,930.75 N/A N/A N/A
Class PT2-I-51A (2) $ 572,663.97 Class PT2-I-IO-51 N/A N/A
Class PT2-I-51B (3) $ 572,663.97 N/A N/A N/A
Class PT2-I-52A (2) $ 542,185.65 Class PT2-I-IO-52 N/A N/A
Class PT2-I-52B (3) $ 542,185.65 N/A N/A N/A
Class PT2-I-53A (2) $ 513,393.81 Class PT2-I-IO-53 N/A N/A
Class PT2-I-53B (3) $ 513,393.81 N/A N/A N/A
Class PT2-I-54A (2) $ 486,192.39 Class PT2-I-IO-54 N/A N/A
Class PT2-I-54B (3) $ 486,192.39 N/A N/A N/A
Class PT2-I-55A (2) $ 460,490.94 Class PT2-I-IO-55 N/A N/A
Class PT2-I-55B (3) $ 460,490.94 N/A N/A N/A
Class PT2-I-56A (2) $ 436,204.24 Class PT2-I-IO-56 N/A N/A
Class PT2-I-56B (3) $ 436,204.24 N/A N/A N/A
Class PT2-I-57A (2) $ 413,253.21 Class PT2-I-IO-57 N/A N/A
Class PT2-I-57B (3) $ 413,253.21 N/A N/A N/A
Class PT2-I-58A (2) $ 391,568.48 Class PT2-I-IO-58 N/A N/A
Class PT2-I-58B (3) $ 391,568.48 N/A N/A N/A
Class PT2-I-59A (2) $ 372,317.78 Class PT2-I-IO-59 N/A N/A
Class PT2-I-59B (3) $ 372,317.78 N/A N/A N/A
Class PT2-I-60A (2) $ 6,347,119.09 Class PT2-I-IO-60 N/A N/A
Class PT2-I-60B (3) $ 6,347,119.09 N/A N/A N/A
Class PT2-I-IO-2 (4) (4) N/A Class PT1-I-2A October 2006
Class PT2-I-IO-3 (4) (4) N/A Class PT1-I-3A November 2006
Class PT2-I-IO-4 (4) (4) N/A Class PT1-I-4A December 2006
Class PT2-I-IO-5 (4) (4) N/A Class PT1-I-5A January 2007
Class PT2-I-IO-6 (4) (4) N/A Class PT1-I-6A February 2007
Class PT2-I-IO-7 (4) (4) N/A Class PT1-I-7A March 2007
Class PT2-I-IO-8 (4) (4) N/A Class PT1-I-8A April 2007
Class PT2-I-IO-9 (4) (4) N/A Class PT1-I-9A May 2007
Class PT2-I-IO-10 (4) (4) N/A Class PT1-I-10A June 2007
Class PT2-I-IO-11 (4) (4) N/A Class PT1-I-11A July 2007
Class PT2-I-IO-12 (4) (4) N/A Class PT1-I-12A August 2007
Class PT2-I-IO-13 (4) (4) N/A Class PT1-I-13A September 2007
Class PT2-I-IO-14 (4) (4) N/A Class PT1-I-14A October 2007
Class PT2-I-IO-15 (4) (4) N/A Class PT1-I-15A November 2007
Class PT2-I-IO-16 (4) (4) N/A Class PT1-I-16A December 2007
Class PT2-I-IO-17 (4) (4) N/A Class PT1-I-17A January 2008
Class PT2-I-IO-18 (4) (4) N/A Class PT1-I-18A February 2008
Class PT2-I-IO-19 (4) (4) N/A Class PT1-I-19A March 2008
Class PT2-I-IO-20 (4) (4) N/A Class PT1-I-20A April 2008
Class PT2-I-IO-21 (4) (4) N/A Class PT1-I-21A May 2008
Class PT2-I-IO-22 (4) (4) N/A Class PT1-I-22A June 2008
Class PT2-I-IO-23 (4) (4) N/A Class PT1-I-23A July 2008
Class PT2-I-IO-24 (4) (4) N/A Class PT1-I-24A August 2008
Class PT2-I-IO-25 (4) (4) N/A Class PT1-I-25A September 2008
Class PT2-I-IO-26 (4) (4) N/A Class PT1-I-26A October 2008
Class PT2-I-IO-27 (4) (4) N/A Class PT1-I-27A November 2008
Class PT2-I-IO-28 (4) (4) N/A Class PT1-I-28A December 2008
Class PT2-I-IO-29 (4) (4) N/A Class PT1-I-29A January 2009
Class PT2-I-IO-30 (4) (4) N/A Class PT1-I-30A February 2009
Class PT2-I-IO-31 (4) (4) N/A Class PT1-I-31A March 2009
Class PT2-I-IO-32 (4) (4) N/A Class PT1-I-32A April 2009
Class PT2-I-IO-33 (4) (4) N/A Class PT1-I-33A June 2009
Class PT2-I-IO-34 (4) (4) N/A Class PT1-I-34A July 2009
Class PT2-I-IO-35 (4) (4) N/A Class PT1-I-35A August 2009
Class PT2-I-IO-36 (4) (4) N/A Class PT1-I-36A September 2009
Class PT2-I-IO-37 (4) (4) N/A Class PT1-I-37A October 2009
Class PT2-I-IO-38 (4) (4) N/A Class PT1-I-38A November 2009
Class PT2-I-IO-39 (4) (4) N/A Class PT1-I-39A December 2009
Class PT2-I-IO-40 (4) (4) N/A Class PT1-I-40A January 2010
Class PT2-I-IO-41 (4) (4) N/A Class PT1-I-41A February 2010
Class PT2-I-IO-42 (4) (4) N/A Class PT1-I-42A March 2010
Class PT2-I-IO-43 (4) (4) N/A Class PT1-I-43A April 2010
Class PT2-I-IO-44 (4) (4) N/A Class PT1-I-44A May 2010
Class PT2-I-IO-45 (4) (4) N/A Class PT1-I-45A June 2010
Class PT2-I-IO-46 (4) (4) N/A Class PT1-I-46A July 2010
Class PT2-I-IO-47 (4) (4) N/A Class PT1-I-47A August 2010
Class PT2-I-IO-48 (4) (4) N/A Class PT1-I-48A September 2010
Class PT2-I-IO-49 (4) (4) N/A Class PT1-I-49A October 2010
Class PT2-I-IO-50 (4) (4) N/A Class PT1-I-50A November 2010
Class PT2-I-IO-51 (4) (4) N/A Class PT1-I-51A December 2010
Class PT2-I-IO-52 (4) (4) N/A Class PT1-I-52A January 2011
Class PT2-I-IO-53 (4) (4) N/A Class PT1-I-53A February 2011
Class PT2-I-IO-54 (4) (4) N/A Class PT1-I-54A March 2011
Class PT2-I-IO-55 (4) (4) N/A Class PT1-I-55A April 2011
Class PT2-I-IO-56 (4) (4) N/A Class PT1-I-56A May 2011
Class PT2-I-IO-57 (4) (4) N/A Class PT1-I-57A June 2011
Class PT2-I-IO-58 (4) (4) N/A Class PT1-I-58A July 2011
Class PT2-I-IO-59 (4) (4) N/A Class PT1-I-59A August 2011
Class PT2-I-IO-60 (4) (4) N/A Class PT1-I-60A September 2011
Class PT2-II-1 (5) $ 36,388,503.48 N/A N/A N/A
Class PT2-II-2A (6) $ 11,544,033.48 Class PT2-II-IO-2 N/A N/A
Class PT2-II-2B (7) $ 11,544,033.48 N/A N/A N/A
Class PT2-II-3A (6) $ 14,250,670.62 Class PT2-II-IO-3 N/A N/A
Class PT2-II-3B (7) $ 14,250,670.62 N/A N/A N/A
Class PT2-II-4A (6) $ 16,936,173.43 Class PT2-II-IO-4 N/A N/A
Class PT2-II-4B (7) $ 16,936,173.43 N/A N/A N/A
Class PT2-II-5A (6) $ 19,577,246.37 Class PT2-II-IO-5 N/A N/A
Class PT2-II-5B (7) $ 19,577,246.37 N/A N/A N/A
Class PT2-II-6A (6) $ 22,149,853.80 Class PT2-II-IO-6 N/A N/A
Class PT2-II-6B (7) $ 22,149,853.80 N/A N/A N/A
Class PT2-II-7A (6) $ 24,629,490.37 Class PT2-II-IO-7 N/A N/A
Class PT2-II-7B (7) $ 24,629,490.37 N/A N/A N/A
Class PT2-II-8A (6) $ 26,991,326.46 Class PT2-II-IO-8 N/A N/A
Class PT2-II-8B (7) $ 26,991,326.46 N/A N/A N/A
Class PT2-II-9A (6) $ 29,211,076.63 Class PT2-II-IO-9 N/A N/A
Class PT2-II-9B (7) $ 29,211,076.63 N/A N/A N/A
$ 31,260,550.58 Class
Class PT2-II-10A (6) PT2-II-IO-10 N/A N/A
Class PT2-II-10B (7) $ 31,260,550.58 N/A N/A N/A
$ 33,113,517.52 Class
Class PT2-II-11A (6) PT2-II-IO-11 N/A N/A
Class PT2-II-11B (7) $ 33,113,517.52 N/A N/A N/A
$ 31,712,659.50 Class
Class PT2-II-12A (6) PT2-II-IO-12 N/A N/A
Class PT2-II-12B (7) $ 31,712,659.50 N/A N/A N/A
$ 30,220,550.34 Class
Class PT2-II-13A (6) PT2-II-IO-13 N/A N/A
Class PT2-II-13B (7) $ 30,220,550.34 N/A N/A N/A
$ 28,799,306.30 Class
Class PT2-II-14A (6) PT2-II-IO-14 N/A N/A
Class PT2-II-14B (7) $ 28,799,306.30 N/A N/A N/A
$ 27,445,398.20 Class
Class PT2-II-15A (6) PT2-II-IO-15 N/A N/A
Class PT2-II-15B (7) $ 27,445,398.20 N/A N/A N/A
$ 26,155,616.62 Class
Class PT2-II-16A (6) PT2-II-IO-16 N/A N/A
Class PT2-II-16B (7) $ 26,155,616.62 N/A N/A N/A
$ 24,926,905.82 Class
Class PT2-II-17A (6) PT2-II-IO-17 N/A N/A
Class PT2-II-17B (7) $ 24,926,905.82 N/A N/A N/A
$ 23,756,328.49 Class
Class PT2-II-18A (6) PT2-II-IO-18 N/A N/A
Class PT2-II-18B (7) $ 23,756,328.49 N/A N/A N/A
$ 22,641,143.54 Class
Class PT2-II-19A (6) PT2-II-IO-19 N/A N/A
Class PT2-II-19B (7) $ 22,641,143.54 N/A N/A N/A
$ 21,580,659.95 Class
Class PT2-II-20A (6) PT2-II-IO-20 N/A N/A
Class PT2-II-20B (7) $ 21,580,659.95 N/A N/A N/A
$ 20,568,125.98 Class
Class PT2-II-21A (6) PT2-II-IO-21 N/A N/A
Class PT2-II-21B (7) $ 20,568,125.98 N/A N/A N/A
$ 19,648,398.89 Class
Class PT2-II-22A (6) PT2-II-IO-22 N/A N/A
Class PT2-II-22B (7) $ 19,648,398.89 N/A N/A N/A
$ 18,780,345.42 Class
Class PT2-II-23A (6) PT2-II-IO-23 N/A N/A
Class PT2-II-23B (7) $ 18,780,345.42 N/A N/A N/A
$ 46,076,291.95 Class
Class PT2-II-24A (6) PT2-II-IO-24 N/A N/A
Class PT2-II-24B (7) $ 46,076,291.95 N/A N/A N/A
$ 40,819,583.73 Class
Class PT2-II-25A (6) PT2-II-IO-25 N/A N/A
Class PT2-II-25B (7) $ 40,819,583.73 N/A N/A N/A
$ 35,131,051.27 Class
Class PT2-II-26A (6) PT2-II-IO-26 N/A N/A
Class PT2-II-26B (7) $ 35,131,051.27 N/A N/A N/A
$ 14,825,640.07 Class
Class PT2-II-27A (6) PT2-II-IO-27 N/A N/A
Class PT2-II-27B (7) $ 14,825,640.07 N/A N/A N/A
$ 13,271,985.43 Class
Class PT2-II-28A (6) PT2-II-IO-28 N/A N/A
Class PT2-II-28B (7) $ 13,271,985.43 N/A N/A N/A
$ 12,532,125.04 Class
Class PT2-II-29A (6) PT2-II-IO-29 N/A N/A
Class PT2-II-29B (7) $ 12,532,125.04 N/A N/A N/A
$ 11,834,371.10 Class
Class PT2-II-30A (6) PT2-II-IO-30 N/A N/A
Class PT2-II-30B (7) $ 11,834,371.10 N/A N/A N/A
$ 11,176,789.36 Class
Class PT2-II-31A (6) PT2-II-IO-31 N/A N/A
Class PT2-II-31B (7) $ 11,176,789.36 N/A N/A N/A
$ 10,556,776.00 Class
Class PT2-II-32A (6) PT2-II-IO-32 N/A N/A
Class PT2-II-32B (7) $ 10,556,776.00 N/A N/A N/A
$ 7,926,544.09 Class
Class PT2-II-33A (6) PT2-II-IO-33 N/A N/A
Class PT2-II-33B (7) $ 7,926,544.09 N/A N/A N/A
$ 8,544,857.80 Class
Class PT2-II-34A (6) PT2-II-IO-34 N/A N/A
Class PT2-II-34B (7) $ 8,544,857.80 N/A N/A N/A
$ 8,070,333.10 Class
Class PT2-II-35A (6) PT2-II-IO-35 N/A N/A
Class PT2-II-35B (7) $ 8,070,333.10 N/A N/A N/A
$ 7,626,494.24 Class
Class PT2-II-36A (6) PT2-II-IO-36 N/A N/A
Class PT2-II-36B (7) $ 7,626,494.24 N/A N/A N/A
$ 7,208,074.21 Class
Class PT2-II-37A (6) PT2-II-IO-37 N/A N/A
Class PT2-II-37B (7) $ 7,208,074.21 N/A N/A N/A
$ 6,813,336.82 Class
Class PT2-II-38A (6) PT2-II-IO-38 N/A N/A
Class PT2-II-38B (7) $ 6,813,336.82 N/A N/A N/A
$ 6,440,911.76 Class
Class PT2-II-39A (6) PT2-II-IO-39 N/A N/A
Class PT2-II-39B (7) $ 6,440,911.76 N/A N/A N/A
$ 6,089,509.29 Class
Class PT2-II-40A (6) PT2-II-IO-40 N/A N/A
Class PT2-II-40B (7) $ 6,089,509.29 N/A N/A N/A
$ 5,934,862.03 Class
Class PT2-II-41A (6) PT2-II-IO-41 N/A N/A
Class PT2-II-41B (7) $ 5,934,862.03 N/A N/A N/A
$ 5,671,762.90 Class
Class PT2-II-42A (6) PT2-II-IO-42 N/A N/A
Class PT2-II-42B (7) $ 5,671,762.90 N/A N/A N/A
$ 5,364,130.55 Class
Class PT2-II-43A (6) PT2-II-IO-43 N/A N/A
Class PT2-II-43B (7) $ 5,364,130.55 N/A N/A N/A
$ 5,073,764.86 Class
Class PT2-II-44A (6) PT2-II-IO-44 N/A N/A
Class PT2-II-44B (7) $ 5,073,764.86 N/A N/A N/A
$ 4,799,672.57 Class
Class PT2-II-45A (6) PT2-II-IO-45 N/A N/A
Class PT2-II-45B (7) $ 4,799,672.57 N/A N/A N/A
$ 4,540,918.57 Class
Class PT2-II-46A (6) PT2-II-IO-46 N/A N/A
Class PT2-II-46B (7) $ 4,540,918.57 N/A N/A N/A
$ 4,296,622.19 Class
Class PT2-II-47A (6) PT2-II-IO-47 N/A N/A
Class PT2-II-47B (7) $ 4,296,622.19 N/A N/A N/A
$ 4,065,954.73 Class
Class PT2-II-48A (6) PT2-II-IO-48 N/A N/A
Class PT2-II-48B (7) $ 4,065,954.73 N/A N/A N/A
$ 3,848,135.36 Class
Class PT2-II-49A (6) PT2-II-IO-49 N/A N/A
Class PT2-II-49B (7) $ 3,848,135.36 N/A N/A N/A
$ 3,642,428.94 Class
Class PT2-II-50A (6) PT2-II-IO-50 N/A N/A
Class PT2-II-50B (7) $ 3,642,428.94 N/A N/A N/A
$ 3,448,143.17 Class
Class PT2-II-51A (6) PT2-II-IO-51 N/A N/A
Class PT2-II-51B (7) $ 3,448,143.17 N/A N/A N/A
$ 3,264,626.11 Class
Class PT2-II-52A (6) PT2-II-IO-52 N/A N/A
Class PT2-II-52B (7) $ 3,264,626.11 N/A N/A N/A
$ 3,091,263.70 Class
Class PT2-II-53A (6) PT2-II-IO-53 N/A N/A
Class PT2-II-53B (7) $ 3,091,263.70 N/A N/A N/A
$ 2,927,477.65 Class
Class PT2-II-54A (6) PT2-II-IO-54 N/A N/A
Class PT2-II-54B (7) $ 2,927,477.65 N/A N/A N/A
$ 2,772,723.22 Class
Class PT2-II-55A (6) PT2-II-IO-55 N/A N/A
Class PT2-II-55B (7) $ 2,772,723.22 N/A N/A N/A
$ 2,626,487.31 Class
Class PT2-II-56A (6) PT2-II-IO-56 N/A N/A
Class PT2-II-56B (7) $ 2,626,487.31 N/A N/A N/A
$ 2,488,293.81 Class
Class PT2-II-57A (6) PT2-II-IO-57 N/A N/A
Class PT2-II-57B (7) $ 2,488,293.81 N/A N/A N/A
$ 2,357,725.03 Class
Class PT2-II-58A (6) PT2-II-IO-58 N/A N/A
Class PT2-II-58B (7) $ 2,357,725.03 N/A N/A N/A
$ 2,241,812.07 Class
Class PT2-II-59A (6) PT2-II-IO-59 N/A N/A
Class PT2-II-59B (7) $ 2,241,812.07 N/A N/A N/A
$ 38,217,482.40 Class
Class PT2-II-60A (6) PT2-II-IO-60 N/A N/A
Class PT2-II-60B (7) $ 38,217,482.40 N/A N/A N/A
Class PT2-II-IO-2 (4) (4) N/A Class PT1-II-2A October 2006
Class PT2-II-IO-3 (4) (4) N/A Class PT1-II-3A November 2006
Class PT2-II-IO-4 (4) (4) N/A Class PT1-II-4A December 2006
Class PT2-II-IO-5 (4) (4) N/A Class PT1-II-5A January 2007
Class PT2-II-IO-6 (4) (4) N/A Class PT1-II-6A February 2007
Class PT2-II-IO-7 (4) (4) N/A Class PT1-II-7A March 2007
Class PT2-II-IO-8 (4) (4) N/A Class PT1-II-8A April 2007
Class PT2-II-IO-9 (4) (4) N/A Class PT1-II-9A May 2007
Class PT2-II-IO-10 (4) (4) N/A Class PT1-II-10A June 2007
Class PT2-II-IO-11 (4) (4) N/A Class PT1-II-11A July 2007
Class PT2-II-IO-12 (4) (4) N/A Class PT1-II-12A August 2007
Class PT2-II-IO-13 (4) (4) N/A Class PT1-II-13A September 2007
Class PT2-II-IO-14 (4) (4) N/A Class PT1-II-14A October 2007
Class PT2-II-IO-15 (4) (4) N/A Class PT1-II-15A November 2007
Class PT2-II-IO-16 (4) (4) N/A Class PT1-II-16A December 2007
Class PT2-II-IO-17 (4) (4) N/A Class PT1-II-17A January 2008
Class PT2-II-IO-18 (4) (4) N/A Class PT1-II-18A February 2008
Class PT2-II-IO-19 (4) (4) N/A Class PT1-II-19A March 2008
Class PT2-II-IO-20 (4) (4) N/A Class PT1-II-20A April 2008
Class PT2-II-IO-21 (4) (4) N/A Class PT1-II-21A May 2008
Class PT2-II-IO-22 (4) (4) N/A Class PT1-II-22A June 2008
Class PT2-II-IO-23 (4) (4) N/A Class PT1-II-23A July 2008
Class PT2-II-IO-24 (4) (4) N/A Class PT1-II-24A August 2008
Class PT2-II-IO-25 (4) (4) N/A Class PT1-II-25A September 2008
Class PT2-II-IO-26 (4) (4) N/A Class PT1-II-26A October 2008
Class PT2-II-IO-27 (4) (4) N/A Class PT1-II-27A November 2008
Class PT2-II-IO-28 (4) (4) N/A Class PT1-II-28A December 2008
Class PT2-II-IO-29 (4) (4) N/A Class PT1-II-29A January 2009
Class PT2-II-IO-30 (4) (4) N/A Class PT1-II-30A February 2009
Class PT2-II-IO-31 (4) (4) N/A Class PT1-II-31A March 2009
Class PT2-II-IO-32 (4) (4) N/A Class PT1-II-32A April 2009
Class PT2-II-IO-33 (4) (4) N/A Class PT1-II-33A June 2009
Class PT2-II-IO-34 (4) (4) N/A Class PT1-II-34A July 2009
Class PT2-II-IO-35 (4) (4) N/A Class PT1-II-35A August 2009
Class PT2-II-IO-36 (4) (4) N/A Class PT1-II-36A September 2009
Class PT2-II-IO-37 (4) (4) N/A Class PT1-II-37A October 2009
Class PT2-II-IO-38 (4) (4) N/A Class PT1-II-38A November 2009
Class PT2-II-IO-39 (4) (4) N/A Class PT1-II-39A December 2009
Class PT2-II-IO-40 (4) (4) N/A Class PT1-II-40A January 2010
Class PT2-II-IO-41 (4) (4) N/A Class PT1-II-41A February 2010
Class PT2-II-IO-42 (4) (4) N/A Class PT1-II-42A March 2010
Class PT2-II-IO-43 (4) (4) N/A Class PT1-II-43A April 2010
Class PT2-II-IO-44 (4) (4) N/A Class PT1-II-44A May 2010
Class PT2-II-IO-45 (4) (4) N/A Class PT1-II-45A June 2010
Class PT2-II-IO-46 (4) (4) N/A Class PT1-II-46A July 2010
Class PT2-II-IO-47 (4) (4) N/A Class PT1-II-47A August 2010
Class PT2-II-IO-48 (4) (4) N/A Class PT1-II-48A September 2010
Class PT2-II-IO-49 (4) (4) N/A Class PT1-II-49A October 2010
Class PT2-II-IO-50 (4) (4) N/A Class PT1-II-50A November 2010
Class PT2-II-IO-51 (4) (4) N/A Class PT1-II-51A December 2010
Class PT2-II-IO-52 (4) (4) N/A Class PT1-II-52A January 2011
Class PT2-II-IO-53 (4) (4) N/A Class PT1-II-53A February 2011
Class PT2-II-IO-54 (4) (4) N/A Class PT1-II-54A March 2011
Class PT2-II-IO-55 (4) (4) N/A Class PT1-II-55A April 2011
Class PT2-II-IO-56 (4) (4) N/A Class PT1-II-56A May 2011
Class PT2-II-IO-57 (4) (4) N/A Class PT1-II-57A June 2011
Class PT2-II-IO-58 (4) (4) N/A Class PT1-II-58A July 2011
Class PT2-II-IO-59 (4) (4) N/A Class PT1-II-59A August 2011
Class PT2-II-IO-60 (4) (4) N/A Class PT1-II-60A September 2011
Class PT2-R (8) $50.00 N/A N/A N/A
--------------------------------------------------------------------------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group I WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group I and having an "A" in
their class designation, provided that, on each Distribution Date on
which interest is distributable on the Corresponding Pooling-Tier REMIC-2
IO Interest, this Pooling-Tier REMIC-2 Regular Interest shall bear
interest at a per annum rate equal to Swap LIBOR subject to a maximum
rate equal to the weighted average of the Pooling-Tier REMIC-1 Interest
Rates on the Pooling-Tier REMIC-1 Regular Interests relating to Loan
Group I and having an "A" in their class designation.
(3) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group I and having a "B" in
their class designation.
(4) Each Pooling-Tier REMIC-2 IO is an interest-only interest and does not
have a principal balance but has a notional balance ("Pooling-Tier
REMIC-2 IO Notional Balance") equal to the Pooling-Tier REMIC-2 Principal
Amount of the Corresponding Pooling-Tier REMIC-1 Regular Interest. From
the Closing Date through and including the Corresponding Actual Crossover
Distribution Date, each Pooling-Tier REMIC-2 IO Interest shall be
entitled to receive interest that accrues on the Corresponding
Pooling-Tier REMIC-1 Regular Interest at a rate equal to the excess, if
any, of (i) the Pooling-Tier REMIC-1 Interest Rate for the Corresponding
Pooling-Tier REMIC-1 Regular Interest over (ii) Swap LIBOR. After the
Corresponding Actual Crossover Distribution Date, the Pooling-Tier
REMIC-2 IO Interest shall not accrue interest.
(5) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the Pooling-Tier
REMIC-1 Loan Group II WAC Rate.
(6) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group II and having an "A" in
their class designation, provided that, on each Distribution Date on
which interest is distributable on the Corresponding Pooling-Tier REMIC-2
IO Interest, this Pooling-Tier REMIC-2 Regular Interest shall bear
interest at a per annum rate equal to Swap LIBOR subject to a maximum
rate equal to the weighted average of the Pooling-Tier REMIC-1 Interest
Rates on the Pooling-Tier REMIC-1 Regular Interests relating to Loan
Group II and having an "A" in their class designation.
(7) For any Distribution Date (and the related Interest Accrual Period), this
Pooling-Tier REMIC-2 Regular Interest shall bear interest at a per annum
rate (its "Pooling-Tier REMIC-2 Interest Rate") equal to the weighted
average of the Pooling-Tier REMIC-1 Interest Rates on the Pooling-Tier
REMIC-1 Regular Interests relating to Loan Group II and having a "B" in
their class designation.
(8) The Class PT2-R Interest shall not bear interest.
On each Distribution Date, the interest distributable in respect
of the Mortgage Loans for such Distribution Date shall be distributed to the
Pooling-Tier REMIC-2 Regular Interests at the Pooling-Tier REMIC-2 Interest
Rates shown above.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group I Mortgage Loans shall be
allocated to the Class R Certificates in respect of the Class PT2-R Interest
pursuant to Section 4.02(a)(iii) until its Class Certificate Balance is reduced
to zero, then to the outstanding Pooling-Tier REMIC-2 Regular Interests (other
than the Pooling-Tier REMIC-2 IO Interests) relating to Loan Group I with the
lowest numerical denomination until the Pooling-Tier REMIC-2 Principal Amount of
such interest is reduced to zero, provided that, for Pooling-Tier REMIC-2
Regular Interests relating to Loan Group I with the same numerical denomination,
such Realized Losses and payments of principal shall be allocated pro rata
between such Pooling-Tier REMIC-2 Regular Interests, until the Pooling-Tier
REMIC-2 Principal Amount of such interest is reduced to zero.
On each Distribution Date, Realized Losses, Subsequent Recoveries
and payments of principal in respect of the Group II Mortgage Loans shall be
allocated to the outstanding Pooling-Tier REMIC-2 Regular Interests (other than
the Pooling-Tier REMIC-2 IO Interests) relating to Loan Group II with the lowest
numerical denomination until the Pooling-Tier REMIC-2 Principal Amount of such
interest is reduced to zero, provided that, for Pooling-Tier REMIC-2 Regular
Interests relating to Loan Group II with the same numerical denomination, such
Realized Losses and payments of principal shall be allocated pro rata between
such Pooling-Tier REMIC-2 Regular Interests, until the Pooling-Tier REMIC-2
Principal Amount of such interest is reduced to zero.
Lower-Tier REMIC
The Lower-Tier REMIC shall issue the following interests, and each
such interest, other than the Class LT-R Interest, is hereby designated as a
regular interest in the Lower-Tier REMIC. The Class LT-R Interest is hereby
designated as the sole class of residual interest in the Lower-Tier REMIC and
shall be represented by the Class R Certificates.
Corresponding
Lower-Tier Lower-Tier Initial Lower-Tier Upper-Tier REMIC
Regular Interest Interest Rate Principal Amount Regular Interest
-------------------- ------------- --------------------------------- ----------------
Class LT-A-1 (1) 1/2 initial Class Certificate A-1
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-A-2A (1) 1/2 initial Class Certificate A-2A
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-A-2B (1) 1/2 initial Class Certificate A-2B
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-A-2C (1) 1/2 initial Class Certificate A-2C
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-A-2D (1) 1/2 initial Class Certificate A-2D
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-1 (1) 1/2 initial Class Certificate M-1
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-2 (1) 1/2 initial Class Certificate M-2
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-3 (1) 1/2 initial Class Certificate M-3
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-4 (1) 1/2 initial Class Certificate M-4
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-5 (1) 1/2 initial Class Certificate M-5
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-6 (1) 1/2 initial Class Certificate M-6
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-7 (1) 1/2 initial Class Certificate M-7
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-8 (1) 1/2 initial Class Certificate M-8
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-M-9 (1) 1/2 initial Class Certificate M-9
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-B-1 (1) 1/2 initial Class Certificate B-1
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-B-2 (1) 1/2 initial Class Certificate B-2
Balance of Corresponding
Upper-Tier REMIC Regular Interest
Class LT-Accrual (1) 1/2 Pool Principal Balance plus 1/2 N/A
Overcollateralized Amount, less
the Initial Lower-Tier Principal
Amounts of the Class LT-Group I,
Class LT-Group II and Class LT-3
Interests, less $50
Class LT-Group I (2) 0.001% aggregate Stated Principal N/A
Balance of Group I Mortgage
Loans(4)
Class LT-Group II (3) 0.001% aggregate Stated Principal N/A
Balance of Group II Mortgage
Loans(4)
Class LT-IO (5) (5) N/A
Class LT-3 (6) $50.00
Class LT-R (7) (7) N/A
-----------------------------
(1) The interest rate with respect to any Distribution Date for these
interests is a per annum variable rate equal to the weighted average of
the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling-Tier REMIC-2 IO Interests).
(2) The interest rate with respect to any Distribution Date for the Class
LT-Group I Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted average
of the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling Tier REMIC-2 IO Interests)
relating to Loan Group I.
(3) The interest rate with respect to any Distribution Date for the Class
LT-Group II Interest is a per annum variable rate (expressed as a
percentage rounded to eight decimal places) equal to the weighted average
of the Pooling-Tier REMIC-2 Interest Rates of the Pooling-Tier REMIC-2
Regular Interests (other than the Pooling Tier REMIC-2 IO Interests)
relating to Loan Group II.
(4) For all Distribution Dates, the Lower-Tier Principal Amount of these
Lower-Tier Regular Interests shall be rounded to eight decimal places.
(5) This Lower-Tier Regular Interest is an interest-only interest and does
not have a Lower-Tier Principal Amount. On each Distribution Date, this
Lower-Tier Regular Interest shall be entitled to receive all interest
distributable on the Pooling-Tier REMIC-2 IO Interests.
(6) This Lower-Tier Regular Interest shall not be entitled to interest and
shall have a Lower-Tier Principal Amount at all times equal to the Class
Certificate Balance of the Class RX Certificates.
(7) The Class LT-R Interest does not have a principal amount or an interest
rate.
Each Lower-Tier Regular Interest is hereby designated as a regular
interest in the Lower-Tier REMIC. The Class LT-A-1, Class LT-A-2A, Class
LT-A-2B, Class LT-A-2C, Class LT-A-2D, Class LT-M-1, Class LT-M-2, Class LT-M-3,
Class LT-M-4, Class LT-M-5, Class LT-M-6, Class LT-M-7, Class LT-M-8, Class
LT-M-9, Class LT-B-1 and Class LT-B-2 Interests are hereby designated the
LT-Accretion Directed Classes (the "LT-Accretion Directed Classes").
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount shall be payable as a reduction of the Lower-Tier
Principal Amount of the LT-Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralized
Amount that is attributable to a reduction in the Class Certificate Balance of
its Corresponding Class) and shall be accrued and added to the Lower-Tier
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower-Tier Principal Amount of the Class LT-Accrual Interest
shall not exceed interest accruals for such Distribution Date for the Class
LT-Accrual Interest. In the event that: (i) 50% of the increase in the
Overcollateralized Amount exceeds (ii) interest accruals on the Class LT-Accrual
Interest for such Distribution Date, the excess for such Distribution Date
(accumulated with all such excesses for all prior Distribution Dates) will be
added to any increase in the Overcollateralized Amount for purposes of
determining the amount of interest accrual on the Class LT-Accrual Interest
payable as principal on the LT-Accretion Directed Classes on the next
Distribution Date pursuant to the first sentence of this paragraph. All payments
of scheduled principal and prepayments of principal generated by the Mortgage
Loans and all Subsequent Recoveries allocable to principal shall be allocated
(i) 50% to the Class LT-Accrual Interest, the Class LT-Group I Interest and
Class LT-Group II Interest (and further allocated among these Lower-Tier Regular
Interests in the manner described below) and (ii) 50% to the LT-Accretion
Directed Classes (such principal payments and Subsequent Recoveries shall be
allocated among such LT-Accretion Directed Classes in an amount equal to 50% of
the principal amounts and Subsequent Recoveries allocated to their respective
Corresponding Classes), until paid in full. Notwithstanding the above, principal
payments allocated to the Class X Interest that result in the reduction in the
Overcollateralized Amount shall be allocated to the Class LT-Accrual Interest
(until paid in full). Realized Losses shall be applied so that after all
distributions have been made on each Distribution Date (i) the Lower-Tier
Principal Amount of each of the LT-Accretion Directed Classes is equal to 50% of
the Class Certificate Balance of their Corresponding Class, and (ii) the Class
LT-Accrual Interest, the Class LT-Group I and the Class LT-Group II Interest
(and further allocated among these Lower-Tier Regular Interests in the manner
described below) is equal to 50% of the aggregate Stated Principal Balance of
the Mortgage Loans plus 50% of the Overcollateralized Amount. Any increase in
the Class Certificate Balance of a Class of LIBOR Certificates as a result of a
Subsequent Recovery shall increase the Lower-Tier Principal Amount of the
Corresponding Lower-Tier Regular Interest by 50% of such increase, and the
remaining 50% of such increase shall increase the Lower-Tier Principal Amount of
the Class LT-Accrual Interest. As among the Class LT-Accrual Interest, the Class
LT-Group I Interest and the Class LT-Group II Interest, all payments of
scheduled principal and prepayments of principal generated by the Mortgage
Loans, all Subsequent Recoveries and all Realized Losses, allocable to such
Lower-Tier Regular Interests shall be allocated (i) to the Class LT-Group I
Interest and the Class LT-Group II Interest, each from the related Loan Group so
that their respective Lower-Tier Principal Amounts (computed to at least eight
decimal places) are equal to 0.001% of the aggregate Stated Principal Balance of
the Mortgage Loans in the related Loan Group and (ii) the remainder to the Class
LT-Accrual Interest.
Upper-Tier REMIC
The Upper-Tier REMIC shall issue the following interests, and each
such interest, other than the Class UT-R Interest, is hereby designated as a
regular interest in the Upper-Tier REMIC. The Class UT-R Interest is hereby
designated as the sole class of residual interests in the Upper-Tier REMIC and
shall be represented by the Class R Certificates.
Upper-Tier REMIC Upper-Tier Initial Principal Corresponding Class
Interest Interest Rate Upper-Tier Amount of Certificates
----------------- ------------- ----------------- -------------------
Class A-1 (1) $ 244,303,000 Class A-1
Class A-2A (2) $ 737,527,000 Class A-2A
Class A-2B (2) $ 218,496,000 Class A-2B
Class A-2C (2) $ 326,660,000 Class A-2C
Class A-2D (2) $ 188,322,000 Class A-2D
Class M-1 (3) $ 73,195,000 Class M-1
Class M-2 (3) $ 65,769,000 Class M-2
Class M-3 (3) $ 37,128,000 Class M-3
Class M-4 (3) $ 36,067,000 Class M-4
Class M-5 (3) $ 32,885,000 Class M-5
Class M-6 (3) $ 30,763,000 Class M-6
Class M-7 (3) $ 29,702,000 Class M-7
Class M-8 (3) $ 18,034,000 Class M-8
Class M-9 (3) $ 15,912,000 Class M-9
Class B-1 (3) $ 11,668,000 Class B-1
Class B-2 (3) $ 21,216,000 Class B-2
Class UT-IO (4) (4) N/A
Class UT-X (5) (5) N/A
Class UT-3 (6) $50 N/A
Class UT-R (7) (7) Class R
-----------------
(1) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the least of (i) the Pass-Through Rate
(determined without regard to the Loan Group I Cap or WAC Cap) for the
Corresponding Class of Certificates, (ii) the Lower-Tier Interest Rate
for the Class LT-Group I Interest (the "Upper-Tier REMIC Loan Group I
Rate") and (iii) the Upper-Tier REMIC WAC Rate.
(2) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the least of (i) the Pass-Through Rate
(determined without regard to the Loan Group II Cap or WAC Cap) for the
Corresponding Class of Certificates, (ii) the Lower-Tier Interest Rate
for the Class LT-Group II Interest (the "Upper-Tier REMIC Loan Group II
Rate") and (iii) the Upper-Tier REMIC WAC Rate.
(3) For any Distribution Date (and the related Interest Accrual Period), this
interest shall bear interest at the lesser of (i) the Pass-Through Rate
(determined without regard to the applicable WAC Cap) for the
Corresponding Class of Certificates and (ii) the Upper-Tier REMIC WAC
Rate.
(4) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date, the Class UT-IO Interest shall be
entitled to receive all interest distributable on the Class LT-IO
Interest.
(5) The Class UT-X Interest has an initial principal balance of $33,946,197
but will not accrue interest on such balance but will accrue interest on
a notional principal balance. As of any Distribution Date, the Class UT-X
Interest shall have a notional principal balance equal to the aggregate
of the Lower-Tier Principal Amounts of the Lower-Tier Regular Interests
(other than the Class LT-IO and Class LT-3 Interests) as of the first day
of the related Interest Accrual Period. With respect to any Interest
Accrual Period, the Class UT-X Interest shall bear interest at a rate
equal to the excess, if any, of the Upper-Tier REMIC WAC Rate over the
product of (i) 2 and (ii) the weighted average of the Lower-Tier Interest
Rates of the Lower-Tier REMIC Interests (other than the Class LT-IO and
Class LT-3 Interests), where the Lower-Tier Interest Rate on each of the
Class LT-Accrual Interest, Class LT-Group I Interest and Class LT-Group
II Interest is subject to a cap equal to zero and each LT-Accretion
Directed Class is subject to a cap equal to the Upper-Tier Interest Rate
on its Corresponding Class of Upper-Tier Regular Interest. With respect
to any Distribution Date, interest that so accrues on the notional
principal balance of the Class UT-X Interest shall be deferred in an
amount equal to any increase in the Overcollateralized Amount on such
Distribution Date. Such deferred interest shall not itself bear interest.
(6) This Upper-Tier Regular Interest shall not be entitled to interest and
shall have a principal balance equal to the Class Certificate Balance of
the Class RX Certificates.
(7) The Class UT-R Interest does not have an interest rate or a principal
balance.
On each Distribution Date, interest distributable in respect of
the Lower-Tier Interests for such Distribution Date shall be deemed to be
distributed on the interests in the Upper-Tier REMIC at the rates shown above,
provided that the Class UT-IO Interest shall be entitled to receive interest
before any other interest in the Upper-Tier REMIC.
On each Distribution Date, all Realized Losses, Subsequent
Recoveries and all payments of principal shall be allocated to the Upper-Tier
Interests until the outstanding principal balance of each such interest equals
the outstanding Class Certificate Balance of the Corresponding Class of
Certificates as of such Distribution Date.
Class X REMIC
The Class X REMIC shall issue the following classes of interests.
The Class X Interest and the Class IO Interest shall each represent a regular
interest in the Class X REMIC and the Class RX Certificates shall represent the
sole class of residual interest in the Class X REMIC.
Class X REMIC
Class X REMIC Designation Interest Rate Principal Amount
Class X Interest (1) (1)
Class IO Interest (2) (2)
Class RX Certificates (3) $50.00
--------------------------------------------------------------------------------
(1) The Class X Interest has an initial principal balance equal to the
initial principal balance of the Class UT-X Interest and is entitled to
100% of the interest and principal on the Class UT-X Interest on each
Distribution Date.
(2) This interest is an interest-only interest and does not have a principal
balance. On each Distribution Date the Class IO Interest shall be
entitled to receive 100% of the interest distributable on the Class UT-IO
Interest.
(3) The Class RX Certificates do not have an interest rate.
Certificates
Class Pass-Through Class Certificate
Class Designation Rate Balance
----------------- ------------------ ----------------
Class A-1(21) (1) $ 244,303,000
Class A-2A(21) (2) $ 737,527,000
Class A-2B(21) (3) $ 218,496,000
Class A-2C(21) (4) $ 326,660,000
Class A-2D(21) (5) $ 188,322,000
Class M-1(21) (6) $ 73,195,000
Class M-2(21) (7) $ 65,769,000
Class M-3(21) (8) $ 37,128,000
Class M-4(21) (9) $ 36,067,000
Class M-5(21) (10) $ 32,885,000
Class M-6(21) (11) $ 30,763,000
Class M-7(21) (12) $ 29,702,000
Class M-8(21) (13) $ 18,034,000
Class M-9(21) (14) $ 15,912,000
Class B-1(21) (15) $ 11,668,000
Class B-2(21) (16) $ 21,216,000
Class X (17) $ 0(17)
Class R (18) $ 50
Class RC (19) $ 100
Class RX (20) $ 50
-------------------------------
(1) The Class A-1 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group I Cap
and (3) the WAC Cap.
(2) The Class A-2A Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(3) The Class A-2B Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(4) The Class A-2C Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(5) The Class A-2D Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the least of (1) One-Month
LIBOR plus the applicable Pass-Through Margin, (2) the Loan Group II Cap
and (3) the WAC Cap.
(6) The Class M-1 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(7) The Class M-2 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(8) The Class M-3 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(9) The Class M-4 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(10) The Class M-5 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(11) The Class M-6 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(12) The Class M-7 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(13) The Class M-8 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(14) The Class M-9 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(15) The Class B-1 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(16) The Class B-2 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (1) One-Month
LIBOR plus the applicable Pass-Through Margin and (2) the WAC Cap.
(17) The Class X Certificates will represent beneficial ownership of (i) the
Class X Interest, (ii) the Class IO Interest, (iii) the right to receive
Class IO Shortfalls, (iv) amounts in the Supplemental Interest Trust,
including the Interest Rate Swap Agreement subject to the obligation to
pay Net Swap Payments and Swap Termination Payments to the Swap Provider
and Upper-Tier Carry Forward Amounts and, without duplication, Basis Risk
Carry Forward Amounts and (v) amounts in the Excess Reserve Fund Account,
subject to the obligation to make payments from the Excess Reserve Fund
Account in respect of Basis Risk Carry Forward Amounts. For federal
income tax purposes, the Trustee will treat a Class X Certificateholder's
obligation to make payments of Basis Risk Carry Forward Amounts to the
LIBOR Certificates from the Excess Reserve Fund Account and the
Supplemental Interest Trust and, without duplication, Upper-Tier Carry
Forward Amounts from the Supplemental Interest Trust as payments made
pursuant to an interest rate cap contract written by the Class X
Certificateholders in favor of each Class of LIBOR Certificates. Such
rights of the Class X Certificateholders and LIBOR Certificateholders
shall be treated as held in a portion of the Trust Fund that is treated
as a grantor trust under subpart E, Part I of subchapter J of the Code.
(18) The Class R Certificates do not have an interest rate. The Class R
Certificates represent ownership of the Class PT2-R Interest, the Class
LT-R Interest and the Class UT-R Interest.
(19) The Class RC Certificates do not have an interest rate. The Class RC
Certificates represent the residual interest in Pooling-Tier REMIC-1.
(20) The Class RX Certificates do not have an interest rate. The Class RX
Certificates represent the residual interest in the Class X REMIC.
(21) Each of these Certificates will represent not only the ownership of a
regular interest in the Corresponding REMIC but also the right to receive
payments from the Excess Reserve Fund Account and the Supplemental
Interest Trust. Each of these Certificates will also be subject to the
obligation to pay Class IO Shortfalls as described in Section 8.13. For
federal income tax purposes, any amount distributed on the LIBOR
Certificates on any such Distribution Date in excess of the amount
distributable on the regular interest in the Upper-Tier REMIC on such
Distribution Date shall be treated as having been paid from the Excess
Reserve Fund Account or the Supplemental Interest Trust, as applicable,
and any amount distributable on such regular interest on such
Distribution Date in excess of the amount distributable on the LIBOR
Certificates on such Distribution Date shall be treated as having been
paid to the Supplemental Interest Trust, all pursuant to, and as further
provided in, Section 8.13. The Trustee will treat a LIBOR
Certificateholder's right to receive payments from the Excess Reserve
Fund Account and the Supplemental Interest Trust as payments made
pursuant to an interest rate cap contract written by the Class X
Certificateholders.
The minimum denomination for the LIBOR Certificates will be
$25,000, with integral multiples of $1 in excess thereof except that one
Certificate in each Class may be issued in a different amount. The minimum
denomination for (a) the Class R Certificates will be $50, representing a 100%
Percentage Interest in the related Class, (b) the Class RC Certificates will be
$100, representing a 100% Percentage Interest in the related Class, (c) the
Class RX Certificates will be $50, representing a 100% Percentage Interest in
the related Class, (d) the Class P Certificates will be a 1% Percentage Interest
in such Class, (e) the Class C Certificates will be a 1% Percentage Interest in
such Class, and (f) the Class X Certificates will be a 1% Percentage Interest in
such Class.
It is expected that each Class of Certificates will receive its
final distribution on or prior to the applicable Final Scheduled Distribution
Date.
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates............ All Classes of Certificates other than the
Physical Certificates.
Class A Certificates............... Class A-1, Class A-2A, Class A-2B,
Class A-2C and Class A-2D Certificates.
Class A-2 Certificates............. Class A-2A, Class A-2B, Class A-2C and
Class A-2D Certificates.
Class B Certificates............... Class B-1 and Class B-2 Certificates.
Class M Certificates............... Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7,
Class M-8 and Class M-9 Certificates.
ERISA-Restricted
Certificates..................... Residual Certificates, Class C Certificates,
Class P Certificates and Class X
Certificates; and any Certificate with a
rating below the lowest applicable permitted
rating under the Underwriter's Exemption.
LIBOR Certificates................. The Class A, Class M and Class B
Certificates, collectively.
Offered Certificates............... All Classes of Certificates other than the
Private Certificates.
Physical Certificates.............. Class P Certificates, Class C Certificates
and Class X Certificates.
Private Certificates............... Class B, Class P and Class X Certificates.
Rating Agencies.................... Standard & Poor's and Xxxxx'x.
Regular Certificates............... All Classes of Certificates other than the
Class P Certificates, Class C Certificates
and the Residual Certificates.
Residual Certificates.............. Class R, Class RC and Class RX
Certificates.
Subordinated Certificates.......... Class M and Class B Certificates.
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
the servicing and administration of such Mortgage Loan (i) in the same manner in
which, and with the same care, skill, prudence and diligence with which the
Servicer generally services and administers similar mortgage loans with similar
mortgagors (A) for other third parties, giving due consideration to customary
and usual standards of practice of prudent institutional residential mortgage
lenders servicing their own mortgage loans or (B) held in the Servicer's own
portfolio, whichever standard is higher, and (ii) in accordance with applicable
local, state and federal laws, rules and regulations.
Account: Any of the Collection Account, the Distribution Account,
any Escrow Account, the Excess Reserve Fund Account or the Supplemental Interest
Trust. Each Account shall be an Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of LIBOR Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for such Distribution
Date allocated to such Class pursuant to Section 4.02.
Additional Form 10-D Disclosure: As defined in Section 8.12(b).
Additional Form 10-K Disclosure: As defined in Section 8.12(c).
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan
purchased pursuant to the Purchase Agreement.
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan and
at any time, the per annum rate equal to the Mortgage Interest Rate less the
Expense Fee Rate.
Adjustment Date: As to any Adjustable Rate Mortgage Loan, the
first Due Date on which the related Mortgage Interest Rate adjusts as set forth
in the related Mortgage Note and each Due Date thereafter on which the Mortgage
Interest Rate adjusts as set forth in the related Mortgage Note.
Advance: Any P&I Advance or Servicing Advance.
Advance Facility: A financing or other facility as described in
Section 10.07.
Advance Reimbursement Amounts: As defined in Section 10.07(a).
Advancing Person: The Person to whom the Servicer's rights under
this Agreement to be reimbursed for any P&I Advances or Servicing Advances have
been assigned pursuant to Section 10.07.
Affiliate: With respect to any Person, any other Person
controlling, controlled by or under common control with such first Person. For
the purposes of this definition, "control" means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Analytics Company: Intex Solutions, Inc., or any other bond
analytics service provider identified to the Trustee by the Depositor.
Applied Realized Loss Amount: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class Certificate Balance of
the LIBOR Certificates after distributions of principal on such Distribution
Date exceeds the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
Appraised Value: (i) In the case of a purchase, the least of the
sale price of the related Mortgaged Property, its appraised value or its review
appraisal value (as determined pursuant to the Underwriting Guidelines) at the
time of sale, or (ii) in the case of a refinancing or modification of a Mortgage
Loan, the appraised value of the related Mortgaged Property at the time of the
refinancing or modification.
Assignment and Recognition Agreement: The Assignment and
Recognition Agreement, dated as of September 28, 2006, by and between the
Responsible Party, the Sponsor and the Depositor.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form (other than the assignee's
name and recording information not yet returned from the recording office),
reflecting the sale of the Mortgage to the Trust.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Trustee (x) the sum of (i) all
scheduled installments of interest (net of the related Expense Fees) and
principal due on the Due Date on such Mortgage Loans in the related Due Period
and received by the Servicer or the Xxxxx Fargo Servicer, as applicable, on or
prior to the related Determination Date, together with any P&I Advances in
respect thereof; (ii) all Condemnation Proceeds, Insurance Proceeds and
Liquidation Proceeds received by the Servicer or the Xxxxx Fargo Servicer, as
applicable, during the related Prepayment Period (in each case, net of
unreimbursed expenses incurred in connection with a liquidation or foreclosure
and unreimbursed Advances, if any); (iii) all partial or full prepayments on the
Mortgage Loans received by the Servicer or the Xxxxx Fargo Servicer, as
applicable, during the related Prepayment Period together with all Compensating
Interest paid by the Servicer or the Xxxxx Fargo Servicer, as applicable, in
connection therewith (excluding Prepayment Premiums); (iv) all amounts received
with respect to such Distribution Date as the Substitution Adjustment Amount or
the Repurchase Price in respect of a Deleted Mortgage Loan substituted for or a
Mortgage Loan repurchased by the Sponsor or the Responsible Party, as
applicable, as of such Distribution Date; (v) any Net Swap Receipts for such
Distribution Date; and (vi) the proceeds received with respect to the
termination of the Trust Fund pursuant to clause (a) of Section 9.01, reduced by
(y) all amounts in reimbursement for Advances previously made with respect to
the Mortgage Loans, and other amounts as to which the Servicer, the Xxxxx Fargo
Servicer, the Depositor or the Trustee (or co-trustee) are entitled to be paid
or reimbursed pursuant to this Agreement.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the Principal Remittance Amount for such
Distribution Date over (ii) the Excess Overcollateralized Amount, if any, for
such Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of
LIBOR Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of LIBOR Certificates is
based upon a Loan Group Cap or the WAC Cap, the excess, if any, of (i) the
Accrued Certificate Interest Distribution Amount on such Class of LIBOR
Certificates would otherwise be entitled to receive on such Distribution Date
had such Pass-Through Rate not been subject to the Loan Group Cap or the WAC
Cap, over (ii) the Accrued Certificate Interest Distribution Amount on such
Class of Certificates on such Distribution Date taking into account (a) with
respect to the Class A-1 Certificates at the lesser of the WAC Cap and the Loan
Group I Cap, (b) with respect to the Class A-2 Certificates at the lesser of the
WAC Cap and the Loan Group II Cap, and (c) with respect to each other Class of
LIBOR Certificates, the WAC Cap, and (B) the Basis Risk Carry Forward Amount for
such Class of LIBOR Certificates for all previous Distribution Dates not
previously paid, together with interest thereon at a rate equal to the
applicable Pass-Through Rate for such Class of LIBOR Certificates for such
Distribution Date (without giving effect to the WAC Cap, Loan Group I Cap or
Loan Group II Cap, as applicable).
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for such
Distribution Date and (ii) the Class X Distributable Amount (prior to any
reduction for (x) amounts paid to the Excess Reserve Fund Account to pay any
Basis Risk Carry Forward Amount or (y) any Defaulted Swap Termination Payment).
Best's: Best's Key Rating Guide, as the same shall be amended from
time to time.
Book-Entry Certificates: As specified in the Preliminary
Statement.
Business Day: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions, in (a) the States of New
York, Ohio and California, (b) the State in which the Servicer's servicing
operations are located, or (c) the State in which the Trustee's operations are
located, are authorized or obligated by law or executive order to be closed.
Certificate: Any one of the Certificates executed by the Trustee
in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of LIBOR
Certificates or Residual Certificates, at any date, the maximum dollar amount of
principal to which the Holder thereof is then entitled hereunder, such amount
being equal to the Denomination thereof minus all distributions of principal
previously made with respect thereto and reduced by the amount of any Applied
Realized Loss Amounts previously allocated to such Class of Certificates
pursuant to Section 4.05; provided, however, that immediately following the
Distribution Date on which a Subsequent Recovery is distributed, the Class
Certificate Balances of any Class or Classes of Certificates that have been
previously reduced by Applied Realized Loss Amounts will be increased, in order
of seniority, by the amount of the Subsequent Recovery distributed on such
Distribution Date (up to the amount of Applied Realized Loss Amounts allocated
to such Class or Classes). The Class X, Class P and Class C Certificates have no
Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purpose of giving any consent pursuant to this Agreement, any Certificate
registered in the name of the Depositor or any Affiliate of the Depositor shall
be deemed not to be Outstanding and the Percentage Interest evidenced thereby
shall not be taken into account in determining whether the requisite amount of
Percentage Interests necessary to effect such consent has been obtained;
provided, however, that if any such Person (including the Depositor) owns 100%
of the Percentage Interests evidenced by a Class of Certificates, such
Certificates shall be deemed to be Outstanding for purposes of any provision
hereof that requires the consent of the Holders of Certificates of a particular
Class as a condition to the taking of any action hereunder. The Trustee is
entitled to rely conclusively on a certification of the Depositor or any
Affiliate of the Depositor in determining which Certificates are registered in
the name of an Affiliate of the Depositor.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
Class A Certificate Group: Either the Class A-1 Certificate Group
or the Class A-2 Certificate Group, as applicable.
Class A Certificates: As specified in the Preliminary Statement.
Class A Principal Allocation Percentage: For any Distribution
Date, the percentage equivalent of a fraction, determined as follows: (A) with
respect to the Class A-1 Certificate Group, a fraction, the numerator of which
is the portion of the Principal Remittance Amount for such Distribution Date
that is attributable to the principal received or advanced on the Group I
Mortgage Loans and the denominator of which is the Principal Remittance Amount
for such Distribution Date; and (B) with respect to the Class A-2 Certificate
Group, a fraction, the numerator of which is the portion of the Principal
Remittance Amount for such Distribution Date that is attributable to the
principal received or advanced on the Group II Mortgage Loans and the
denominator of which is the Principal Remittance Amount for such Distribution
Date.
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balances of
the Class A Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) 61.70% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class A-1 Certificate Group: The Class A-1 Certificates.
Class A-1 Certificates: All Certificates bearing the class
designation of "Class A-1."
Class A-2 Certificate Group: The Class A-2 Certificates.
Class A-2 Certificates: As specified in the Preliminary Statement.
Class A-2A Certificates: All Certificates bearing the class
designation of "Class A-2A."
Class A-2B Certificates: All Certificates bearing the class
designation of "Class A-2B."
Class A-2C Certificates: All Certificates bearing the class
designation of "Class A-2C."
Class A-2D Certificates: All Certificates bearing the class
designation of "Class A-2D."
Class B Certificates: As specified in the Preliminary Statement.
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1."
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (H) the Class Certificate Balance of the Class M-7 Certificates (after
taking into account the distribution of the Class M-7 Principal Distribution
Amount on such Distribution Date), (I) the Class Certificate Balance of the
Class M-8 Certificates (after taking into account the distribution of the Class
M-8 Principal Distribution Amount on such Distribution Date), (J) the Class
Certificate Balance of the Class M-9 Certificates (after taking into account the
distribution of the Class M-9 Principal Distribution Amount on such Distribution
Date) and (K) the Class Certificate Balance of the Class B-1 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 94.80% 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 B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (H) the Class Certificate Balance of the Class M-7 Certificates (after
taking into account the distribution of the Class M-7 Principal Distribution
Amount on such Distribution Date), (I) the Class Certificate Balance of the
Class M-8 Certificates (after taking into account the distribution of the Class
M-8 Principal Distribution Amount on such Distribution Date), (J) the Class
Certificate Balance of the Class M-9 Certificates (after taking into account the
distribution of the Class M-9 Principal Distribution Amount on such Distribution
Date), (K) the Class Certificate Balance of the Class B-1 Certificates (after
taking into account the distribution of the Class B-1 Principal Distribution
Amount on such Distribution Date) and (L) the Class Certificate Balance of the
Class B-2 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 96.80% 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 C Certificates: All Certificates bearing the class
designation of "Class C."
Class Certificate Balance: With respect to any Class and as to any
date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class IO Interest: As specified in the Preliminary Statement.
Class IO Shortfall: As defined in Section 8.13. For the avoidance
of doubt, the Class IO Shortfall for any Distribution Date shall equal the
amount payable to the Class X Certificates in respect of amounts due to the Swap
Provider on such Distribution Date (other than Defaulted Swap Termination
Payments) in excess of the sum of the amounts payable on the Class IO Interest
and the Class X Interest (prior to any reduction for Basis Risk Payments or
Defaulted Swap Termination Payments) on such Distribution Date, all as further
provided in Section 8.13.
Class LT-R Interest: The residual interest in the Lower-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class M Certificates: As specified in the Preliminary Statement.
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1."
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), and (B) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 68.60% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date) and (C) the Class Certificate Balance of the
Class M-2 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 74.80% 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-3 Certificates: All Certificates bearing the class
designation of "Class M-3."
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date) and (D) the Class
Certificate Balance of the Class M-3 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 78.30% 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 Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date) and (E) the Class Certificate Balance of the Class M-4 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 81.70% 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-5 Certificates: All Certificates bearing the class
designation of "Class M-5."
Class M-5 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date) and (F) the Class Certificate Balance of the
Class M-5 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 84.80% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class M-6 Certificates: All Certificates bearing the class
designation of "Class M-6."
Class M-6 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date) and (G) the Class
Certificate Balance of the Class M-6 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 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-7 Certificates: All Certificates bearing the class
designation of "Class M-7."
Class M-7 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date) and (H) the Class Certificate Balance of the Class M-7 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 90.50% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-8 Certificates: All Certificates bearing the class
designation of "Class M-8."
Class M-8 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (H) the Class Certificate Balance of the Class M-7 Certificates (after
taking into account the distribution of the Class M-7 Principal Distribution
Amount on such Distribution Date) and (I) the Class Certificate Balance of the
Class M-8 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 92.20% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class M-9 Certificates: All Certificates bearing the class
designation of "Class M-9."
Class M-9 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balances of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (H) the Class Certificate Balance of the Class M-7 Certificates (after
taking into account the distribution of the Class M-7 Principal Distribution
Amount on such Distribution Date), (I) the Class Certificate Balance of the
Class M-8 Certificates (after taking into account the distribution of the Class
M-8 Principal Distribution Amount on such Distribution Date) and (J) the Class
Certificate Balance of the Class M-9 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 93.70% 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 P Certificates: All Certificates bearing the class
designation of "Class P."
Class PT1-R Interest: The residual interest in Pooling-Tier
REMIC-1 as described in the Preliminary Statement and the related footnote
thereto.
Class PT2-R Interest: The residual interest in Pooling-Tier
REMIC-2 as described in the Preliminary Statement and the related footnote
thereto.
Class R Certificates: All Certificates bearing the class
designation of "Class R."
Class RC Certificates: All Certificates bearing the class
designation of "Class RC."
Class RX Certificates: All Certificates bearing the class
designation of "Class RX."
Class UT-3 Interest: A regular interest in the Upper-Tier REMIC as
described in the Preliminary Statement and the related footnote thereto.
Class UT-IO Interest: A regular interest in the Upper-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class UT-R Interest: The residual interest in the Upper-Tier REMIC
as described in the Preliminary Statement and the related footnote thereto.
Class UT-X Interest: A regular interest in the Upper-Tier REMIC as
described in the Preliminary Statement and the related footnote thereto.
Class X Certificates: All Certificates bearing the class
designation of "Class X."
Class X Distributable Amount: On any Distribution Date, the sum of
(i) as a distribution in respect of interest, the amount of interest that has
accrued on the Class UT-X Interest and not applied as an Extra Principal
Distribution Amount on such Distribution Date, plus any such accrued interest
remaining undistributed from prior Distribution Dates, plus (without
duplication) (ii) as a distribution in respect of principal, any portion of the
principal balance of the Class UT-X Interest which is distributable as an
Overcollateralization Reduction Amount, minus (iii) any amounts paid from the
Excess Reserve Fund Account to pay Basis Risk Carry Forward Amounts, and any
Defaulted Swap Termination Payment payable to the Swap Provider.
Class X Interest: The regular interest in the Class X REMIC
represented by the Class X Certificates as specified and described in the
Preliminary Statement and the related footnote thereto.
Class X REMIC: As defined in the Preliminary Statement.
Class X REMIC Regular Interest: Each of the Class X Interest and
Class IO Interest issued by the Class X REMIC.
Closing Date: September 28, 2006.
Code: The Internal Revenue Code of 1986, including any successor
or amendatory provisions.
Collection Accounts: As defined in Section 3.10(a).
Commission: The United States Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, the lesser of
(a) the Prepayment Interest Shortfall, if any, for such Distribution Date, with
respect to all Principal Prepayments during the related Prepayment Period, and
(b) the aggregate Servicing Fees payable to the Servicer or the Xxxxx Fargo
Servicer, as applicable, for such Distribution Date.
Condemnation Proceeds: All awards, compensation and/or settlements
in respect of a Mortgaged Property, whether permanent or temporary, partial or
entire, by exercise of the power of eminent domain or condemnation, to the
extent not required to be released to a Mortgagor in accordance with the terms
of the related Mortgage Loan Documents.
Corporate Trust Office: The designated office of the Trustee in
the State of California at which at any particular time its corporate trust
business with respect to this Agreement is administered, which office at the
date of the execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attn: Trust Administration - FF0613,
facsimile no. (000) 000-0000 and which is the address to which notices to and
correspondence with the Trustee should be directed.
Corresponding Actual Crossover Distribution Date: For each
Pooling-Tier REMIC-2 IO Interest, the related Corresponding Scheduled Crossover
Distribution Date, unless on such date two times the aggregate Pooling-Tier
REMIC-2 IO Notional Balance of each other Pooling-Tier REMIC-2 IO Interest then
outstanding is less than the scheduled swap notional amount of the Interest Rate
Swap Agreement applicable for such Distribution Date, in which case the
Corresponding Actual Crossover Distribution Date for such Pooling-Tier REMIC-2
IO Interest shall be the first Distribution Date thereafter on which two times
the aggregate Pooling-Tier REMIC-2 IO Notional Balance of each other
Pooling-Tier REMIC-2 IO Interest then outstanding is greater than or equal to
the scheduled swap notional amount of the Interest Rate Swap Agreement.
Corresponding Class: The Class of interests in one Trust REMIC
created under this Agreement that corresponds to the Class of interests in
another such Trust REMIC or to a Class of Certificates in the manner set out
below:
Lower-Tier Upper-Tier REMIC Corresponding
Class Designation Regular Interest Class of Certificates
----------------- ---------------- ---------------------
Class LT-A-1 Class A-1 Class A-1
Class LT-A-2A Class A-2A Class A-2A
Class LT-A-2B Class A-2B Class A-2B
Class LT-A-2C Class A-2C Class A-2C
Class LT-A-2D Class A-2D Class A-2D
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-M-4 Class M-4 Class M-4
Class LT-M-5 Class M-5 Class M-5
Class LT-M-6 Class M-6 Class M-6
Class LT-M-7 Class M-7 Class M-7
Class LT-M-8 Class M-8 Class M-8
Class LT-M-9 Class M-9 Class M-9
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
Corresponding Pooling-Tier REMIC-2 IO Interest: As described in
the Preliminary Statement.
Corresponding Scheduled Crossover Distribution Date: The
Distribution Date in the month and year specified in the Preliminary Statement
corresponding to a Pooling-Tier REMIC-2 IO Interest.
Cumulative Realized Loss Percentage: As set forth in the
definition of Trigger Event.
Custodial File: With respect to each Mortgage Loan, any Mortgage
Loan Document which is delivered to the Trustee or which at any time comes into
the possession of the Trustee.
Cut-off Date: September 1, 2006.
Cut-off Date Pool Principal Balance: The aggregate of the Cut-Off
Date Principal Balances of all Mortgage Loans.
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 or prior to that date,
whether or not received).
Data Tape Information: The information provided by the Responsible
Party or the Servicer as of the Cut-off Date to the Depositor setting forth the
following information with respect to each Mortgage Loan: (1) the applicable
Responsible Party's Mortgage Loan identifying number; (2) the Mortgagor's name;
(3) the street address of the Mortgaged Property including the city, state and
zip code; (4) a code indicating whether the Mortgaged Property is
owner-occupied, a second home or investment property; (5) the number and type of
residential units constituting the Mortgaged Property (i.e., a single family
residence, a 2-4 family residence, a unit in a condominium project or a unit in
a planned unit development or a manufactured housing unit); (6) the original
months to maturity or the remaining months to maturity from the Cut-off Date, in
any case based on the original amortization schedule and, if different, the
maturity expressed in the same manner but based on the actual amortization
schedule; (7) the Loan-to-Value Ratio at origination; (8) the Mortgage Interest
Rate as of the Cut-off Date; (9) the date on which the Scheduled Payment was due
on the Mortgage Loan and, if such date is not consistent with the Due Date
currently in effect, such Due Date; (10) the stated maturity date; (11) the
amount of the Scheduled Payment as of the Cut-off Date; (12) the last payment
date on which a Scheduled Payment was actually applied to pay interest and the
outstanding principal balance; (13) the original principal amount of the
Mortgage Loan; (14) the principal balance of the Mortgage Loan as of the close
of business on the Cut-off Date, after deduction of payments of principal due
and collected on or before the Cut-off Date; (15) with respect to Adjustable
Rate Mortgage Loans, the Adjustment Date; (16) with respect to Adjustable Rate
Mortgage Loans, the Gross Margin; (17) with respect to Adjustable Rate Mortgage
Loans, the Lifetime Rate Cap under the terms of the Mortgage Note; (18) with
respect to Adjustable Rate Mortgage Loans, a code indicating the type of Index;
(19) with respect to Adjustable Rate Mortgage Loans, the Periodic Mortgage
Interest Rate Cap under the terms of the Mortgage Note; (20) with respect to
Adjustable Rate Mortgage Loans, the Periodic Mortgage Interest Rate Floor under
the terms of the Mortgage Note; (21) the type of Mortgage Loan (i.e., fixed rate
and adjustable rate); (22) a code indicating the purpose of the loan (i.e.,
purchase, rate and term refinance, equity take-out refinance); (23) a code
indicating the documentation style (i.e., full documentation, limited
documentation or stated income); (24) the loan credit classification (as
described in the Underwriting Guidelines); (25) whether such Mortgage Loan
provides for a Prepayment Premium; (26) the Prepayment Premium period of such
Mortgage Loan, if applicable; (27) a description of the Prepayment Premium, if
applicable; (28) the Mortgage Interest Rate as of origination; (29) the credit
risk score (FICO score) at origination; (30) the date of origination; (31) the
Mortgage Interest Rate adjustment period; (32) the Mortgage Interest Rate floor;
(33) a code indicating whether the Mortgage Loan has been modified; (34) the
payment history; (35) the Due Date for the first Scheduled Payment; (36) the
original Scheduled Payment due; (37) with respect to the related Mortgagor, the
debt-to-income ratio; (38) the Appraised Value of the Mortgaged Property; (39)
the sales price of the Mortgaged Property if the Mortgage Loan was originated in
connection with the purchase of the Mortgaged Property; (40) the Mortgage
Interest Rate calculation method (i.e., 30/360, simple interest, other); (41) a
code indicating whether the Mortgage Loan is a Section 32 Mortgage Loan; (42) a
code indicating whether the Mortgage Loan is assumable; (43) the date of the
purchase of the Mortgage Loan; (44) whether the Mortgage Loan is covered by PMI
policy and name of insurer; (45) with respect to each MERS Designated Mortgage
Loan, the MERS identification number; (46) a code indicating if the Mortgage
Loan is an Interest Only Mortgage Loan; and (47) a code indicating if a Mortgage
Loan is or has had a 30 Day Delinquency. With respect to the Mortgage Loans in
the aggregate: (1) the number of Mortgage Loans; (2) the current aggregate
outstanding principal balance of the Mortgage Loans; (3) the weighted average
Mortgage Interest Rate of the Mortgage Loans; and (4) the weighted average
maturity of the Mortgage Loans.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which
became final and non-appealable, except for such a reduction resulting from a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Defaulted Swap Termination Payment: Any Swap Termination Payment
required to be paid by the Trust to the Swap Provider pursuant to the Interest
Rate Swap Agreement as a result of an Event of Default (as defined in the
Interest Rate Swap Agreement) with respect to which the Swap Provider is the
defaulting party or a Termination Event (as defined in the Interest Rate Swap
Agreement) (other than Illegality or a Tax Event that is not a Tax Event Upon
Merger (each as defined in the Interest Rate Swap Agreement )) with respect to
which the Swap Provider is the sole Affected Party (as defined in the Interest
Rate Swap Agreement).
Deficient Valuation: With respect to any Mortgage Loan, a
valuation of the related Mortgaged Property by a court of competent jurisdiction
in an amount less than the then outstanding principal balance of the Mortgage
Loan, which valuation results from a proceeding initiated under the United
States Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: Any Mortgage Loan permitted to be removed
from the Trust Fund under the circumstances set forth in the Assignment
Agreement.
Denomination: With respect to each Certificate, the amount set
forth on the face thereof as the "Initial Certificate Balance of this
Certificate" or the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware corporation,
and its successors in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust
company, including the Trustee, that (a) is incorporated under the laws of the
United States of America or any State thereof, (b) is subject to supervision and
examination by federal or state banking authorities and (c) has outstanding
unsecured commercial paper or other short-term unsecured debt obligations that
are rated P-1 by Moody's, F1+ by Fitch and A-1 by Standard & Poor's (in each
case, to the extent they are designated as Rating Agencies in the Preliminary
Statement).
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to each Distribution Date, the
18th day of the calendar month in which such Distribution Date occurs or, if
such day is not a Business Day, the immediately preceding Business Day.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.27(b) in the name of the Trustee
for the benefit of the Certificateholders and designated "Deutsche Bank National
Trust Company in trust for registered Holders of FFMLT Trust 2006-FF13 Mortgage
Pass-Through Certificates, Series 2006-FF13." Funds in the Distribution Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement and may be invested in Permitted Investments.
Distribution Date: The 25th day of each calendar month or, if such
day is not a Business Day, the next succeeding Business Day, commencing in
October 2006.
Document Certification and Exception Report: The report attached
to Exhibit G hereto.
Due Date: The day of the month on which the Scheduled Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
the Distribution Date occurs and ending on the first day of the calendar month
in which the Distribution Date occurs.
Eligible Account: Either (i) an account maintained with a federal
or state-chartered depository institution or trust company that complies with
the definition of Eligible Institution, (ii) an account maintained with the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal
Regulation Section 9.10(b), which, in either case, has corporate trust powers
and is acting in its fiduciary capacity or (iii) any other account acceptable to
each Rating Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the Trustee.
Each Eligible Account shall be a separate account.
Eligible Institution: A federal or state-chartered depository
institution or trust company the commercial paper, short-term debt obligations,
or other short-term deposits of which are rated "A-1+" by Standard & Poor's if
the amounts on deposit are to be held in the account for no more than 365 days
(or at least "A-2" by Standard & Poor's if the amounts on deposit are to be held
in the account for no more than 30 days), or the long-term unsecured debt
obligations of which are rated at least "AA-" by Standard & Poor's if the
amounts on deposit are to be held in the account for no more than 365 days, and
the commercial paper, short-term debt obligations, or other short-term deposits
of which are rated at least "P-1" by Moody's and "F1+" by Fitch (or a comparable
rating if another Rating Agency is specified by the Depositor by written notice
to the Servicer and the Trustee) (in each case to the extent they are designated
as Rating Agencies in the Preliminary Statement).
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-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.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.09(b).
Escrow Payments: As defined in Section 3.09(b) of this Agreement.
Event of Default: As defined in Section 7.01.
Excess Overcollateralized Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralized Amount on such
Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Trustee pursuant to Sections 3.27(a) in the name of the
Trustee for the benefit of the Regular Certificateholders and designated
"Deutsche Bank National Trust Company in trust for registered Holders of FFMLT
Trust 2006-FF13, Mortgage Pass-Through Certificates, Series 2006-FF13." Funds in
the Excess Reserve Fund Account shall be held in trust for the Regular
Certificateholders for the uses and purposes set forth in this Agreement.
Amounts on deposit in the Excess Reserve Fund Account shall not be invested.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the sum of the Servicing Fee Rate and the Trustee Fee Rate.
Expense Fees: As to each Mortgage Loan, the sum of the Servicing
Fee and the Trustee Fee.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for such Distribution
Date and (y) the related Overcollateralization Deficiency for such Distribution
Date.
Xxxxxx Xxx: The Federal National Mortgage Association and its
successors in interest.
Xxxxxx Mae Guides: The Xxxxxx Xxx Seller's Guide and the Xxxxxx
Mae Servicer's Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, and its
successors in interest.
Final Recovery Determination: With respect to any defaulted
Mortgage Loan or any REO Property (other than a Mortgage Loan or REO Property
purchased by the Depositor, the Responsible Party or the Sponsor, as
contemplated by this Agreement), a determination made by the Servicer or the
Xxxxx Fargo Servicer, as applicable, that all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries which the
Servicer or the Xxxxx Fargo Servicer, as applicable, in its reasonable good
faith judgment, expects to be finally recoverable in respect thereof have been
so recovered. The Servicer shall maintain records, prepared by a Servicing
Officer, of each Final Recovery Determination made thereby.
Final Scheduled Distribution Date: The Final Scheduled
Distribution Date for each Class of Certificates is the Distribution Date
occurring in October 2036.
Fixed Rate Mortgage Loan: A fixed rate Mortgage Loan.
Fixed Swap Rate: For any Distribution Date and the related
Interest Accrual Period a per annum rate equal to the product of (i) 2 and (ii)
the rate specified in the Interest Rate Swap Agreement for such Distribution
Date and related Interest Accrual Period.
Forbearance: As defined in Section 3.07(a).
Form 8-K Disclosure Information: As defined in Section 8.12(g).
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.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note to be added
to the applicable Index to determine the Mortgage Interest Rate.
Group I Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group I Mortgage Loans.
Group II Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule as Group II Mortgage Loans.
High Cost Mortgage Loan: A Mortgage Loan that is (a) covered by
the Home Ownership and Equity Protection Act of 1994, (b) identified, classified
or characterized as "high cost," "threshold," "covered," or "predatory" under
any other applicable state, federal or local law (or a similarly identified,
classified or characterized loan using different terminology under an applicable
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees) or
(c) categorized as "High Cost" or "Covered" pursuant to Appendix E of the
Standard & Poor's Glossary.
Home Loan: A Mortgage Loan categorized as "Home Loan" pursuant to
Appendix E of Standard & Poor's Glossary.
Index: As to each Adjustable Rate Mortgage Loan, the index from
time to time in effect for the adjustment of the Mortgage Interest Rate set
forth as such on the related Mortgage Note.
Initial Certification: The Initial Certification submitted by the
Trustee, substantially in the form of Exhibit F.
Insurance Policy: With respect to any Mortgage Loan included in
the Trust Fund, any insurance policy, including all riders and endorsements
thereto in effect, including any replacement policy or policies for any
Insurance Policies.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds
of insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Interest Accrual Period: With respect to each Class of LIBOR
Certificates and each Corresponding Class of Lower-Tier Regular Interests and
each Corresponding Class of Upper-Tier Regular Interests for any Distribution
Date, the period commencing on the immediately preceding Distribution Date (or,
for the initial Distribution Date, the Closing Date) and ending on the day
immediately preceding the current Distribution Date. With respect to the Class
LT-Accrual, Class LT-IO, Class UT-X, Class UT-IO, Class X and Class IO Interests
and each Pooling-Tier REMIC-1 Regular Interest and Pooling-Tier REMIC-2 Regular
Interest and any Distribution Date, the calendar month preceding such
Distribution Date. For purposes of computing interest accruals on each Class of
LIBOR Certificates, each Corresponding Class of Lower-Tier Regular Interest and
each Corresponding Class of Upper-Tier Regular Interest, each Interest Accrual
Period has the actual number of days in such period and each year is assumed to
have 360 days.
Interest Only Mortgage Loan: A Mortgage Loan for which the related
Mortgage Note provides for Scheduled Payments of interest only for a period of
time as specified in the related Mortgage Note.
Interest Rate Swap Agreement: The interest rate swap agreement,
dated as of September 28, 2006, between Xxxxxxx Xxxxx Capital Markets, L.P. and
Xxxxxxx Sachs Mortgage Company or any other swap agreement (including any
related schedules) entered into by the Trustee on behalf of the Trust pursuant
to Section 2.01(d), a copy of which is attached hereto as Exhibit X.
Interest Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans in a Loan Group, that portion of Available Funds
attributable to interest received or advanced with respect to the Mortgage Loans
in such Loan Group and any Net Swap Receipts for such Distribution Date, net of
any Net Swap Payments and Swap Termination Payments, other than Defaulted Swap
Termination Payments, payable to the Swap Provider and made from such Loan Group
with respect to such Distribution Date.
Investment Account: As defined in Section 3.12(a).
Investor: With respect to each MERS Designated Mortgage Loan, the
Person named on the MERS System as the investor pursuant to the MERS Procedures
Manual.
Investor-Based Exemption: Any of Prohibited Transaction Class
Exemption ("PTCE") 84-14 (for transactions by independent "qualified
professional asset managers"), PTCE 91-38 (for transactions by bank collective
investment funds), XXXX 00-0 (for transactions by insurance company pooled
separate accounts), PTCE 95-60 (for transactions by insurance company general
accounts) or PTCE 96-23 (for transactions effected by "in-house asset
managers"), or any comparable exemption available under Similar Law.
Late Collections: With respect to any Mortgage Loan and any Due
Period, all amounts received after the Determination Date immediately following
such Due Period, whether as late payments of Scheduled Payments or as Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal and/or interest due (without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note) but delinquent for such Due Period and not previously recovered.
LIBOR: With respect to any Interest Accrual Period for the LIBOR
Certificates, the rate determined by the Trustee on the related LIBOR
Determination Date on the basis of the offered rate for one-month U.S. dollar
deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m. (London
time) on such date; provided, that if such rate does not appear on Telerate Page
3750, the rate for such date will be determined on the basis of the rates at
which one-month U.S. dollar deposits are offered by the Reference Banks at
approximately 11:00 a.m. (London time) on such date to prime banks in the London
interbank market. In such event, the Trustee shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Trustee (after
consultation with the Depositor), at approximately 11:00 a.m. (New York City
time) on such date for one-month U.S. dollar loans to leading European banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period for the LIBOR Certificates, the second London Business Day preceding the
commencement of such Interest Accrual Period.
Lifetime Rate Cap: The provision of each Mortgage Note related to
an Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the Mortgage Loan Schedule.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated or
charged-off in the calendar month preceding the month of such Distribution Date
and as to which the Servicer or the Xxxxx Fargo Servicer has certified to the
Trustee (in accordance with this Agreement) that it has made a Final Recovery
Determination.
Liquidation Event: With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made as to such Mortgage Loan; or (iii) such Mortgage Loan is
removed from coverage under this Agreement by reason of its being purchased,
sold or replaced pursuant to or as contemplated by this Agreement. With respect
to any REO Property, either of the following events: (i) a Final Recovery
Determination is made as to such REO Property; or (ii) such REO Property is
removed from coverage under this Agreement by reason of its being purchased
pursuant to this Agreement.
Liquidation Proceeds: The amounts, other than Insurance Proceeds,
Condemnation Proceeds or those received following the acquisition of REO
Property, received in connection with the liquidation of a defaulted Mortgage
Loan, whether through a trustee's sale, foreclosure sale or otherwise, including
any Subsequent Recoveries.
Loan Group: The Group I Mortgage Loans or the Group II Mortgage
Loans, as applicable.
Loan Group Cap: The Loan Group I Cap or the Loan Group II Cap, as
applicable.
Loan Group I Cap: With respect to the Group I Mortgage Loans as of
any Distribution Date, a per annum rate equal to the product of (i) 30 divided
by the actual number of days in the applicable Interest Accrual Period and (ii)
the sum of (A) the weighted average of the Mortgage Interest Rates for each
Group I Mortgage Loan (in each case, less the applicable Expense Fee Rate) then
in effect on the beginning of the related Due Period and (B) Net Swap Receipts,
if any, less Net Swap Payments if any, for that Distribution Date divided by the
Stated Principal Balance of the Mortgage Loans at the beginning of the related
Due Period, multiplied by 12.
Loan Group II Cap: With respect to the Group II Mortgage Loans as
of any Distribution Date, a per annum rate equal to the product of (i) 30
divided by the actual number of days in the applicable Interest Accrual Period
and (ii) the sum of (A) the weighted average of the Mortgage Interest Rates for
each Group II Mortgage Loan (in each case, less the applicable Expense Fee Rate)
then in effect on the beginning of the related Due Period and (B) Net Swap
Receipts, if any, less Net Swap Payments if any, for that Distribution Date
divided by the Stated Principal Balance of the Mortgage Loans at the beginning
of the related Due Period, multiplied by 12.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, at
any time, the ratio (expressed as a percentage) of the principal balance of the
Mortgage Loan as of the date of determination, to the Appraisal Value of the
related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of
United States dollars are transacted in the London interbank market.
Lower-Tier Interest Rate: As described in the Preliminary
Statement.
Lower-Tier Principal Amount: As described in the Preliminary
Statement.
Lower-Tier Regular Interest: Each of the Class LT-A-1, Class
LT-A-2A, Class LT-A-2B, Class LT-A-2C, Class LT-A-2D, Class LT-M-1, Class
LT-M-2, Class LT-M-3, Class LT-M-4, Class LT-M-5, Class LT-M-6, Class LT-M-7,
Class LT-M-8, Class LT-M-9, Class LT-B-1, Class LT-B-2, Class LT-IO, Class LT-3,
Class LT-Group I, Class LT-Group II, and Class LT-Accrual Interests as described
in the Preliminary Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
Majority Class C Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class C Certificates.
Majority Class X Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class X Certificates.
Market Value Change Report: A report setting forth changes in
property value of the Mortgaged Properties in a format agreed upon by the
Servicer and the Depositor.
MERS: As defined in Section 2.01(b).
MERS Designated Mortgage Loan: Mortgage Loans for which (a) the
Responsible Party 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 Responsible Party, in accordance with the MERS
Procedures Manual and (b) the Responsible Party has designated or will designate
the Trust as the Investor on the MERS(R) System.
MERS Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS(R) System: MERS mortgage electronic registry system, as more
particularly described in the MERS Procedures Manual.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.03.
Moody's: Xxxxx'x Investors Service, Inc., and its successors in
interest. If Xxxxx'x is designated as a Rating Agency in the Preliminary
Statement, for purposes of Section 10.05(b) the address for notices to Moody's
shall be Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Pass-Through Group, or such other address
as Moody's may hereafter furnish to the Depositor, the Servicer and the Trustee.
Mortgage: The mortgage, deed of trust or other instrument
identified on the Mortgage Loan Schedule as securing a Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the Mortgage Loan Schedule, which Mortgage Loan includes,
without limitation, the Mortgage File, the Custodial File, the Servicing File,
the Scheduled Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition proceeds, Prepayment
Premiums and all other rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan, excluding replaced or repurchased
Mortgage Loans.
Mortgage Loan Documents: The mortgage loan documents pertaining to
each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans delivered to
the Trustee on the Closing Date and referred to on Schedule I, such schedule
setting forth the following information with respect to each Mortgage Loan as of
the Cut-off Date: (1) the applicable Responsible Party Mortgage Loan identifying
number; (2) the Mortgagor's name; (3) the street address of the Mortgaged
Property including the city, state and zip code; (4) a code indicating whether
the Mortgaged Property is owner-occupied, a second home or investment property;
(5) the number and type of residential units constituting the Mortgaged Property
(i.e., a single family residence, a 2-4 family residence, a unit in a
condominium project or a unit in a planned unit development or a manufactured
housing unit); (6) the original months to maturity or the remaining months to
maturity from the Cut-off Date, in any case based on the original amortization
schedule and, if different, the maturity expressed in the same manner but based
on the actual amortization schedule; (7) the Loan-to-Value Ratio at origination;
(8) the Mortgage Interest Rate as of the Cut-off Date; (9) the date on which the
Scheduled Payment was due on the Mortgage Loan and, if such date is not
consistent with the Due Date currently in effect, such Due Date; (10) the stated
maturity date; (11) the amount of the Scheduled Payment as of the Cut-off Date;
(12) the last payment date on which a Scheduled Payment was actually applied to
pay interest and the outstanding principal balance; (13) the original principal
amount of the Mortgage Loan; (14) the principal balance of the Mortgage Loan as
of the close of business on the Cut-off Date, after deduction of payments of
principal due and collected on or before the Cut-off Date; (15) with respect to
Adjustable Rate Mortgage Loans, the Adjustment Date; (16) with respect to
Adjustable Rate Mortgage Loans, the Gross Margin; (17) with respect to
Adjustable Rate Mortgage Loans, the Lifetime Rate Cap under the terms of the
Mortgage Note; (18) with respect to Adjustable Rate Mortgage Loans, a code
indicating the type of Index; (19) with respect to Adjustable Rate Mortgage
Loans, the Periodic Mortgage Interest Rate Cap under the terms of the Mortgage
Note; (20) with respect to Adjustable Rate Mortgage Loans, the Periodic Mortgage
Interest Rate Floor under the terms of the Mortgage Note; (21) the type of
Mortgage Loan (i.e., fixed rate or adjustable rate); (22) a code indicating the
purpose of the loan (i.e., purchase, rate and term refinance, equity take-out
refinance); (23) a code indicating the documentation style (i.e., full
documentation, limited documentation or stated income); (24) the loan credit
classification (as described in the Underwriting Guidelines); (25) whether such
Mortgage Loan provides for a Prepayment Premium; (26) the Prepayment Premium
period of such Mortgage Loan, if applicable; (27) a description of the
Prepayment Premium, if applicable; (28) the Mortgage Interest Rate as of
origination; (29) the credit risk score (FICO score) at origination; (30) the
date of origination; (31) the date of the purchase of the Mortgage Loan, if
applicable; (32) the Mortgage Interest Rate adjustment period; (33) the Mortgage
Interest Rate floor; (34) a code indicating whether the Mortgage Loan has been
modified; (35) the payment history; (36) the Due Date for the first Scheduled
Payment; (37) the original Scheduled Payment due; (38) with respect to the
related Mortgagor, the debt-to-income ratio; (39) the Appraised Value of the
Mortgaged Property; (40) the sales price of the Mortgaged Property if the
Mortgage Loan was originated in connection with the purchase of the Mortgaged
Property; (41) the Mortgage Interest Rate calculation method (i.e., 30/360,
simple interest, other); (42) a code indicating whether the Mortgage Loan is a
Section 32 Mortgage Loan; (43) a code indicating whether the Mortgage Loan is
assumable; (44) whether the Mortgage Loan is covered by PMI policy and name of
insurer; (45) with respect to each MERS Designated Mortgage Loan, the MERS
identification number; (46) a code indicating if a Mortgage Loan is or has had a
30 Day Delinquency; (47) with respect to each MERS Designated Mortgage Loan, the
MERS identification number; (48) a code indicating if the Mortgage Loan is an
Interest Only Mortgage Loan; (49) a code indicating whether such Mortgage Loan
is a Home Loan; (50) the Original Purchase Date; and (51) a code indicating
whether the Mortgage Loan is a Group I Mortgage Loan or a Group II Mortgage
Loan. With respect to the Mortgage Loans in the aggregate: (1) the number of
Mortgage Loans; (2) the current aggregate outstanding principal balance of the
Mortgage Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage
Loans; and (4) the weighted average maturity of the Mortgage Loans.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor(s) on a Mortgage Note.
NCHLS: National City Home Loan Services, Inc., a Delaware
corporation, and its successors in interest.
NCHLS Serviced Mortgage Loan: Each Mortgage Loan with respect to
which NCHLS is listed as Servicer on the Mortgage Loan Schedule.
Net Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to Section 4.02(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls for such
Distribution Date exceeds the sum of the Compensating Interest payments made
with respect to such Distribution Date.
Net Swap Payment: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) payable by the Trust to the Swap
Provider on the related Fixed Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
Net Swap Receipt: With respect to any Distribution Date, any net
payment (other than a Swap Termination Payment) made by the Swap Provider to the
Trust on the related Floating Rate Payer Payment Date (as defined in the
Interest Rate Swap Agreement).
NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class X and Class P Certificates that are rated by one or
more Rating Agencies.
NIM Trustee: The trustee for the NIM Securities.
90+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect
to which any portion of a Scheduled Payment is, as of the last day of the prior
Due Period, three months or more past due (without giving effect to any grace
period), including each Mortgage Loan in foreclosure, all REO Property and each
Mortgage Loan for which the Mortgagor has filed for bankruptcy.
Non-Permitted Transferee: As defined in Section 8.11(e).
Nonrecoverable P&I Advance: Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Property that, in the
good faith business judgment of the Servicer, will not or, in the case of a
proposed P&I Advance, would not be ultimately recoverable from related late
payments, Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds on
such Mortgage Loan or REO Property as provided herein; or in the case of the
Xxxxx Fargo Servicer, a P&I Advance determined by the Xxxxx Fargo Servicer to be
not recoverable pursuant to the Xxxxx Fargo Agreements.
Nonrecoverable Servicing Advance: Any Servicing Advances
previously made or proposed to be made in respect of a Mortgage Loan or REO
Property, which, in the good faith business judgment of the Servicer, will not
or, in the case of a proposed Servicing Advance, would not, be ultimately
recoverable from related Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds or otherwise.
Non-Rule 144A Investment Letter: As defined in Section 5.02(b).
Notice of Final Distribution: The notice to be provided pursuant
to Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by an officer of the
Servicer with responsibility for the servicing of the Mortgage Loans required to
be serviced by the Servicer and listed on a list delivered to the Trustee
pursuant to this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
in-house counsel for the Servicer or a Subservicer, reasonably acceptable to the
Trustee; provided, that any Opinion of Counsel relating to (a) qualification of
any Trust REMIC as a REMIC or (b) compliance with the REMIC Provisions, must
(unless otherwise stated in such Opinion of Counsel) be an opinion of counsel
who (i) is in fact independent of the Servicer or the Xxxxx Fargo Servicer, (ii)
does not have any material direct or indirect financial interest in the Servicer
or the Xxxxx Fargo Servicer or in an Affiliate of the Servicer or the Xxxxx
Fargo Servicer and (iii) is not connected with the Servicer or the Xxxxx Fargo
Servicer of the Mortgage Loans as an officer, employee, director or person
performing similar functions.
Optional Termination Date: The date determined as follows: The
Servicer (at the direction of the Majority Class C Certificateholder (as
evidenced on the Certificate Register)), pursuant to Section 9.01, shall cause
the Optional Termination Date to occur on any Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day of
the related Due Period, is equal to 10% or less of the Cut off Date Pool
Principal Balance (provided, that if the Depositor or an Affiliate of the
Depositor is one of the Holders constituting such majority, then there must be
at least one other unaffiliated Holder constituting such majority and the Class
C Certificates held by such Holder, or unaffiliated Holders in the aggregate,
must represent at least a 10% Percentage Interest in the Class C Certificates).
Original Purchase Date: June 30, 2006 or July 31, 2006, as
applicable.
OTS: Office of Thrift Supervision, and any successor thereto.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan
with a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the
excess, if any, of (a) the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date over (b) the aggregate of the Class Certificate
Balances of the LIBOR Certificates and the Residual Certificates as of such
Distribution Date (after giving effect to the payment of the Principal
Remittance Amount on such Certificates on such Distribution Date).
Overcollateralization Deficiency: With respect to any Distribution
Date, the excess, if any, of (a) the Specified Overcollateralized Amount
applicable to such Distribution Date over (b) the Overcollateralized Amount
applicable to such Distribution Date.
Overcollateralization Floor: With respect to any Distribution
Date, 0.50% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date.
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Net Monthly Excess Cash Flow.
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial.
P&I Advance: As to any Mortgage Loan or REO Property, any advance
made by the Servicer or the Xxxxx Fargo Servicer in respect of any Remittance
Date representing the aggregate of all payments of principal and interest, net
of the Servicing Fee, that were due during the related Due Period on the
Mortgage Loans and that were delinquent on the related Remittance Date, plus
certain amounts representing assumed payments not covered by any current net
income on the Mortgaged Properties acquired by foreclosure or deed in lieu of
foreclosure as determined pursuant to Section 4.01(a).
Pass-Through Margin: Except as set forth in the following
sentence, with respect to each Class of LIBOR Certificates, the following
percentages: Class A-1 Certificates, 0.120%; Class A-2A Certificates, 0.060%;
Class A-2B Certificates, 0.100%; Class A-2C Certificates, 0.160%; Class A-2D
Certificates, 0.240%; Class M-1 Certificates, 0.290%; Class M-2 Certificates,
0.310%; Class M-3 Certificates, 0.320%; Class M-4 Certificates, 0.380%; Class
M-5 Certificates, 0.390%; Class M-6 Certificates, 0.460%; Class M-7
Certificates, 0.750%; Class M-8 Certificates, 0.950%; Class M-9 Certificates,
1.900%; Class B-1 Certificates, 2.500%; and Class B-2 Certificates, 2.500%. On
the first possible Optional Termination Date, the Pass-Through Margins shall
increase to: Class A-1 Certificates, 0.240%; Class A-2A Certificates, 0.120%;
Class A-2B Certificates, 0.200%; Class A-2C Certificates, 0.320%; Class A-2D
Certificates, 0.480%; Class M-1 Certificates, 0.435%; Class M-2 Certificates,
0.465%; Class M-3 Certificates, 0.480%; Class M-4 Certificates, 0.570%; Class
M-5 Certificates, 0.585%; Class M-6 Certificates, 0.690%; Class M-7
Certificates, 1.125%; Class M-8 Certificates, 1.425%; Class M-9 Certificates,
2.850%; Class B-1 Certificates, 3.750%; and Class B-2 Certificates, 3.750%.
Pass-Through Rate: For each Class of Regular Certificates, each
Pooling-Tier REMIC-1 Regular Interest, each Pooling-Tier REMIC-2 Regular
Interest, each Lower-Tier Regular Interest, each Upper-Tier Regular Interest,
and each Class X REMIC Regular Interest, the per annum rate set forth or
calculated in the manner described in the Preliminary Statement.
PCAOB: The Public Company Accounting Oversight Board.
Percentage Interest: As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made on the related
Class, such percentage interest being set forth on the face thereof or equal to
the percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Periodic Mortgage Interest Rate Cap: With respect to each
Adjustable Rate Mortgage Loan, the provision of each Mortgage Note which
provides for an absolute maximum amount by which the Mortgage Interest Rate
therein may increase or decrease on an Adjustment Date above or below the
Mortgage Interest Rate previously in effect. The Periodic Mortgage Interest Rate
Cap for each Adjustable Rate Mortgage Loan is the rate set forth on the Mortgage
Loan Schedule.
Periodic Mortgage Interest Rate Floor: With respect to each
Adjustable Rate Mortgage Loan, the provision of each Mortgage Note which
provides for an absolute minimum amount by which the Mortgage Interest Rate
therein may increase or decrease on an Adjustment Date above or below the
Mortgage Interest Rate previously in effect. The Periodic Mortgage Interest Rate
Floor for each Adjustable Rate Mortgage Loan is the rate set forth on the
Mortgage Loan Schedule.
Permitted Investments: Any one or more of the following
obligations or securities acquired at a purchase price of not greater than par,
regardless of whether issued by the Servicer, the Trustee or any of their
respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed
by the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than 90 days and, in the case of bankers' acceptances, shall in no
event have an original maturity of more than 365 days or a remaining
maturity of more than 30 days) denominated in United States dollars and
issued by any Depository Institution and rated "P-1" by Moody's, "A-1+"
by Standard and Poor's and "F1+" by Fitch (in each case, to the extent
they are designated as Rating Agencies in the Preliminary Statement);
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository Institution
(acting as principal);
(iv) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United
States of America or any state thereof and that are rated by each Rating
Agency that rates such securities in its highest long-term unsecured
rating categories at the time of such investment or contractual
commitment providing for such investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than 30 days after the date of acquisition
thereof) that is rated by each Rating Agency that rates such securities
in its highest short-term unsecured debt rating available at the time of
such investment;
(vi) units of money market funds, including money market funds
advised by the Depositor or the Trustee or an Affiliate thereof, that
have been rated "Aaa" by Moody's, "AAAm" or "AAAm-G" by Standard & Poor's
and at least "AA" by Fitch (in each case, to the extent they are
designated as Rating Agencies in the Preliminary Statement and such funds
are so rated by such Rating Agency); and
(vii) if previously confirmed in writing to the Trustee, any other
demand, money market or time deposit, or any other obligation, security
or investment, as may be acceptable to the Rating Agencies as a permitted
investment of funds backing "Aaa" or "AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
For investments in the Distribution Account (except during the Trustee Float
Period), only the obligations or securities (or instruments which invest in the
obligations or securities) specified in clause (i) above shall constitute
Permitted Investments.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on any
excess inclusions (as defined in Section 860E(c)(1) of the Code) with respect to
any Residual Certificate, (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code, (v) a Person that is not a U.S.
Person or a U.S. Person with respect to whom income from a Residual Certificate
is attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of such Person or any other U.S.
Person, or a U.S. Person treated as a partnership for federal income tax
purposes, any direct or indirect beneficial owner of which (other than through a
U.S. corporation) is (or is permitted to be under the related partnership
agreement) not a U.S. Person, (vi) an "electing large partnership" within the
meaning of Section 775 of the Code and (vii) any other Person so designated by
the Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Residual Certificate to such Person may cause any Trust REMIC to
fail to qualify as a REMIC at any time that the Certificates are outstanding.
The terms "United States," "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of 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.
Plan: As defined in Section 5.02(b).
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date that were Outstanding Mortgage Loans on the Due Date in the
related Due Period.
Pooling-Tier REMIC-1: As described in the Preliminary Statement.
Pooling-Tier REMIC-1 Interest Rate: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 Loan Group I WAC Rate: With respect to the
Group I Mortgage Loans as of any Distribution Date, a per annum rate equal to
(a) the weighted average of the Mortgage Interest Rates for each such Mortgage
Loan (in each case, less than the applicable Expense Fee Rate) then in effect on
the beginning of the related Due Period on such Mortgage Loans, multiplied by
(b) 30 divided by the actual number of days in the related Interest Accrual
Period.
Pooling-Tier REMIC-1 Loan Group II WAC Rate: With respect to the
Group II Mortgage Loans as of any Distribution Date, a per annum rate equal to
(a) the weighted average of the Mortgage Interest Rates for each such Mortgage
Loan (in each case, less than the applicable Expense Fee Rate) then in effect on
the beginning of the related Due Period on such Mortgage Loans, multiplied by
(b) 30 divided by the actual number of days in the related Interest Accrual
Period.
Pooling-Tier REMIC-1 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-1 Regular Interest: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2: As described in the Preliminary Statement.
Pooling-Tier REMIC-2 Interest Rate: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 IO Interest: Any of the Pooling-Tier REMIC-2
Regular Interests with the designation "IO" in its name.
Pooling-Tier REMIC-2 IO Notional Balance: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 Principal Amount: As described in the
Preliminary Statement.
Pooling-Tier REMIC-2 Regular Interest: As described in the
Preliminary Statement.
Prepayment Interest Shortfall: With respect to any Distribution
Date, the sum of, for each Mortgage Loan that was, during the related Prepayment
Period, the subject of a Principal Prepayment that was applied by the Servicer
or the Xxxxx Fargo Servicer, as applicable, to reduce the outstanding principal
balance of such Mortgage Loan on a date preceding the Due Date in the succeeding
Prepayment Period, an amount equal to the product of (a) the Mortgage Interest
Rate net of the Servicing Fee Rate for such Mortgage Loan, (b) the amount of the
Principal Prepayment for such Mortgage Loan, (c) 1/360 and (d) the number of
days commencing on the date on which such Principal Prepayment was applied and
ending on the last day of the related Prepayment Period.
Prepayment Period: With respect to any Distribution Date, the
calendar month preceding the calendar month in which such Distribution Date
occurs.
Prepayment Premium: Any prepayment premium, penalty or charge
collected by the Servicer with respect to a Mortgage Loan from a Mortgagor in
connection with any voluntary Principal Prepayment pursuant to the terms of the
related Mortgage Note.
Principal Distribution Amount: For any Distribution Date, the sum
of (i) the Basic Principal Distribution Amount for such Distribution Date and
(ii) the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other
recovery of principal on a Mortgage Loan (including upon liquidation of a
Mortgage Loan) which is received by the Servicer or the Xxxxx Fargo Servicer, as
applicable, in advance of its scheduled Due Date, excluding any Prepayment
Premium and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution
Date, the amount equal to the sum of the following amounts (without duplication)
with respect to the related Due Period: (i) each Scheduled Payment of principal
on a Mortgage Loan due during such Due Period and received by the Servicer or
the Xxxxx Fargo Servicer, as applicable, on or prior to the related
Determination Date or advanced by the Servicer for the related Remittance Date,
(ii) all Principal Prepayments received during the related Prepayment Period,
(iii) all Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds on
the Mortgage Loans allocable to principal actually collected by the Servicer or
the Xxxxx Fargo Servicer, as applicable, during the related Prepayment Period,
(iv) the portion of the Repurchase Price allocable to principal with respect to
each Deleted Mortgage Loan, the repurchase obligation for which arose during the
related Prepayment Period, that was repurchased during the period from the prior
Distribution Date through the Remittance Date for the current Distribution Date,
(v) the portion of all Substitution Adjustment Amounts allocable to principal
with respect to the substitutions of Mortgage Loans that occur during the
calendar month in which such Distribution Date occurs, and (vi) the allocable
portion of the proceeds received with respect to the termination of the Trust
Fund pursuant to clause (a) of Section 9.01 (to the extent such proceeds relate
to principal).
Privacy Laws: Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as
amended, and all applicable regulations promulgated thereunder.
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated September
26, 2006, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchase Agreement: The Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of February 27, 2004, by and between the Responsible Party
and the Sponsor, as amended by Amendment No. 1 to the Purchase Agreement, dated
November 29, 2004, as amended by Amendment No. 2 to the Purchase Agreement,
dated January 20, 2006, by and between the Responsible Party and the Sponsor and
as amended by the Regulation AB Compliance Addendum, dated February 7, 2006, by
and between the Responsible Party, the Servicer and the Sponsor, solely insofar
as such agreement relates to the Mortgage Loans.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee. References
herein to a given rating or rating category of a Rating Agency shall mean such
rating category without giving effect to any modifiers. For purposes of Section
10.05(b), the addresses for notices to each Rating Agency shall be the address
specified therefor in the definition corresponding to the name of such Rating
Agency, or such other address as either such Rating Agency may hereafter furnish
to the Depositor, the Trustee and the Servicer.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the Servicer or the Xxxxx Fargo Servicer, as
applicable, in connection with the liquidation of such Liquidated Mortgage Loan
and net of the amount of unreimbursed Servicing Advances with respect to such
Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the related Interest Accrual Period;
provided, however, that for any Definitive Certificate, the Record Date shall be
the close of business on the last Business Day of the month preceding the month
in which such 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. 1,506-1,631 (Jan. 7, 2005)) or
by the staff of the Commission, or as may be provided by the Commission or its
staff from time to time.
Relief Act Interest Shortfall: With respect to any Distribution
Date and any Mortgage Loan, any reduction in the amount of interest collectible
on such Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act, or any similar state
statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be in
effect from time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, no later
than 12:00 p.m., Central Time on the Business Day immediately preceding such
Distribution Date.
REO Disposition: The final sale by the Servicer or the Xxxxx Fargo
Servicer, as applicable, of any REO Property.
REO Imputed Interest: As to any REO Property, for any period, an
amount equivalent to interest (at the Mortgage Interest Rate net of the
Servicing Fee Rate that would have been applicable to the related Mortgage Loan
had it been outstanding) on the unpaid principal balance of the Mortgage Loan as
of the date of acquisition thereof (as such balance is reduced pursuant to
Section 3.15 by any income from the REO Property treated as a recovery of
principal).
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Replacement Swap Provider Payment: Any payments that have been
received by the Trust as a result of entering into a replacement interest rate
swap agreement following an Additional Termination Event described in Part
5(n)(iii) of the Schedule to the Interest Rate Swap Agreement.
Reportable Event: As defined in Section 8.12(g).
Reporting Date: The 18th day of each calendar month or the
immediately following Business Day if the 18th is not a Business Day.
Repurchase Price: With respect to any Mortgage Loan repurchased by
(a) the Sponsor, an amount equal to the sum of (i) the unpaid principal balance
of such Mortgage Loan as of the date of repurchase, (ii) interest on such unpaid
principal balance of such Mortgage Loan at the Mortgage Interest Rate from the
last date through which interest has been paid and distributed to the Trustee to
the date of repurchase, (iii) all unreimbursed Servicing Advances, (iv) all
expenses incurred by the Servicer, the Xxxxx Fargo Servicer, the Trust or the
Trustee, as the case may be, in respect of a breach or defect, including,
without limitation, expenses arising out of the Servicer's, the Xxxxx Fargo
Servicer's or Trustee's, as the case may be, enforcement of the Sponsor's
repurchase obligations, to the extent not included in clause (iii), and (v) any
costs and damages incurred by the Trust in connection with any violation by such
Mortgage Loan of any predatory lending law or abusive lending law or (b)
Responsible Party, the Repurchase Price as that term is defined in the Purchase
Agreement.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee substantially in the form of Exhibit L.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any
vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any associate or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers who at such time shall be officers to whom, with respect to
a particular matter, such matter is referred because of such officer's knowledge
of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement.
Responsible Party: First Franklin Financial Corp., a subsidiary of
National City Bank, a Delaware corporation, and its successors in interest.
Responsible Party Agreements: The Purchase Agreement and the
Assignment and Recognition Agreement, as the case may be, copies of which are
attached hereto as Exhibit S.
Rule 144A Letter: As defined in Section 5.02(b).
Sarbanes Certification: As defined in Section 8.12(c).
Scheduled Payment: The scheduled monthly payment on a Mortgage
Loan due on any Due Date allocable to principal and/or interest on such Mortgage
Loan which, unless otherwise specified herein, shall give effect to any related
Debt Service Reduction and any Deficient Valuation that affects the amount of
the monthly payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distribution of the Principal Distribution Amount, including any principal
payments on those Classes of Certificates from the Supplemental Interest Trust,
for such Distribution Date) by (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date.
Senior Specified Enhancement Percentage: As of any date of
determination, 38.30%.
Servicer: NCHLS, and if a successor servicer is appointed
hereunder, such successor.
Servicer Remittance Report: As defined in Section 4.03(d).
Servicing Advances: The reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred prior to, on, or after the Cut-off Date
by the Servicer or the Xxxxx Fargo Servicer, as applicable, in the performance
of its servicing obligations in connection with a default, delinquency or other
unanticipated event, including, but not limited to, the cost of (i) the
preservation, restoration, inspection and protection of a Mortgaged Property,
(ii) any enforcement, administrative or judicial proceedings, including
foreclosures and litigation, in respect of a particular Mortgage Loan, (iii) the
management (including reasonable fees in connection therewith) and liquidation
of any REO Property, (iv) the performance of its obligations under Sections
3.01, 3.07, 3.09, 3.13 and 3.15, in the case of the Servicer, or the applicable
provisions of the Xxxxx Fargo Agreements, in the case of the Xxxxx Fargo
Servicer. Servicing Advances also include any reasonable "out-of-pocket" costs
and expenses (including legal fees) incurred by the Servicer or the Xxxxx Fargo
Servicer, as applicable, in connection with executing and recording instruments
of satisfaction, deeds of reconveyance or Assignments of Mortgage in connection
with any satisfaction or foreclosures in respect of any Mortgage Loan to the
extent not recovered from the Mortgagor or otherwise payable under this
Agreement and (v) obtaining or correcting any legal documentation required to be
included in the Mortgage Files and necessary for the Servicer or the Xxxxx Fargo
Servicer, as applicable, to perform its obligations under this Agreement or
under the Xxxxx Fargo Agreements. Neither the Servicer nor the Xxxxx Fargo
Servicer shall be required to make any Nonrecoverable Servicing Advances.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, which as of the Closing Date are listed on Exhibit T
hereto.
Servicing Fee: With respect to each Mortgage Loan and any
Distribution Date, an amount equal to the product of (i) one-twelfth of the
Servicing Fee Rate and (ii) the Stated Principal Balance of such Mortgage Loan
as of the first day of the related Due Period. Such fee shall be payable
monthly, and shall be pro rated for any portion of a month during which the
Mortgage Loan is serviced by the Servicer under this Agreement or by the Xxxxx
Fargo Servicer under the Xxxxx Fargo Agreements. The Servicing Fee is payable
solely from the interest portion (including recoveries with respect to interest
from Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds and
proceeds received with respect to REO Properties, to the extent permitted by
Section 3.11) of such Scheduled Payment collected by the Servicer or as
otherwise provided under Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50% per
annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer or the Xxxxx Fargo Servicer consisting of originals or
copies of all documents in the Mortgage File which are not delivered to the
Trustee in the Custodial File and copies of the Mortgage Loan Documents set
forth in Exhibit M hereto.
Servicing Function Participant: As defined in Section 3.23(a).
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished to
the Trustee by the Servicer on the Closing Date pursuant to this Agreement, as
such list may from time to time be amended, or in the case of the Xxxxx Fargo
Servicer, as defined in the Xxxxx Fargo Agreements.
Servicing Transfer Costs: All reasonable out-of-pocket costs and
expenses incurred by the Trustee in connection with the transfer of servicing
from a terminated Servicer, including, without limitation, any such costs or
expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee (or any successor Servicer appointed pursuant to
Section 7.02) to service the Mortgage Loans properly and effectively.
Servicing Transfer Date: With respect to each applicable Mortgage
Loan, the date previously identified in writing to the Trustee and the Servicer
by the Depositor or its designee, on which servicing of certain of the Mortgage
Loans was transferred to the Xxxxx Fargo Servicer.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: With respect to any date of
determination, each Mortgage Loan with respect to which any portion of a
Scheduled Payment is, as of the last day of the prior Due Period, two months or
more past due, each Mortgage Loan in foreclosure, all REO Properties and each
Mortgage Loan for which the Mortgagor has filed for bankruptcy after the Closing
Date.
Special Servicer: A designee of the Majority Class X
Certificateholder appointed hereunder that (i) is not an affiliate of the
Trustee and services mortgage loans similar to the Mortgage Loans in the
jurisdictions in which the related Mortgaged Properties are located, (ii) the
Rating Agencies have confirmed to the Trustee that such appointment will not
result in the reduction or withdrawal of the then current ratings of any of the
Certificates, (iii) has a net worth of at least $15,000,000 (certified to the
Trustee in writing), and (iv) enters into a Special Servicing Agreement meeting
the requirements set forth in Section 3.29 of this Agreement.
Special Servicing Agreement: An agreement among the Special
Servicer, the Majority Class X Certificateholder, and the Trustee that will (i)
contain (a) special servicing terms, provisions and conditions meeting the
requirements set forth in Section 3.29 for the servicing and administration of
certain 60+ Day Delinquent Mortgage Loans and (b) certain representations and
warranties of the Special Servicer regarding the Special Servicer (ii)
incorporate by reference all of the servicing-related provisions of this
Agreement so as to make them applicable to the Special Servicer as if the
Special Servicer were a party hereto, and (iii) be reasonably acceptable to the
Trustee and acceptable to the Rating Agencies. Such Special Servicing Agreement,
shall contain a provision stating that it is being executed by the Trustee
solely in its capacity as trustee of the Trust and that the Trustee shall have
no obligation or liability under such agreement.
Specified Overcollateralized Amount: Prior to the Stepdown Date,
an amount equal to 1.60% of the Cut-off Date Pool Principal Balance. On and
after the Stepdown Date, an amount equal to 3.20% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, subject,
until the Class Certificate Balance of each Class of LIBOR Certificates has been
reduced to zero, to a minimum amount equal to the Overcollateralization Floor;
provided, however, that if, on any Distribution Date, a Trigger Event exists,
the Specified Overcollateralized Amount shall not be reduced to the applicable
percentage of the then current aggregate Stated Principal Balance of the
Mortgage Loans 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 in effect; provided, further, that when the Class Certificate
Balance of each Class of LIBOR Certificates has been reduced to zero, the
Specified Overcollateralized Amount will thereafter equal zero.
Sponsor: Xxxxxxx Sachs Mortgage Company, a New York limited
partnership, and its successors in interest, as purchaser of the Mortgage Loans
under the Purchase Agreement.
Standard & Poor's: Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc., and its successors in interest. If Standard
& Poor's is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to Standard & Poor's shall
be Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Surveillance Group - FFMLT Trust 2006-FF13, or such other
address as Standard & Poor's may hereafter furnish to the Depositor, the
Servicer and the Trustee.
Standard & Poor's Glossary: Version 5.6(b) of the Standard &
Poor's LEVELS(R) Glossary.
Start-up Day: As defined in Section 2.05.
Stated Principal Balance: As to each Mortgage Loan and as of any
date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date (whether or not received), minus (ii) all amounts previously remitted to
the Trustee with respect to the related Mortgage Loan representing payments or
recoveries of principal including advances in respect of Scheduled Payments of
principal. For purposes of any Distribution Date, the Stated Principal Balance
of any Mortgage Loan will give effect to any Scheduled Payments of principal
received by the Servicer or the Xxxxx Fargo Servicer, as applicable, on or prior
to the related Determination Date or advanced by the Servicer or the Xxxxx Fargo
Servicer, as applicable, for the related Remittance Date and any unscheduled
principal payments and other unscheduled principal collections received during
the related Prepayment Period, and the Stated Principal Balance of any Mortgage
Loan that has prepaid in full or has become a Liquidated Mortgage Loan during
the related Prepayment Period shall be zero.
Stepdown Date: The earlier to occur of (a) the date on which the
aggregate Class Certificate Balances of the Class A Certificates have been
reduced to zero, and (b) the later to occur of (i) the Distribution Date in
October 2009, and (ii) the first Distribution Date on which the Senior
Enhancement Percentage is greater than or equal to the Senior Specified
Enhancement Percentage.
Subcontractor: Any third-party or Affiliated vendor, subcontractor
or other Person utilized by the Servicer, the Xxxxx Fargo Servicer, a
Subservicer or the Trustee, as applicable, that is not responsible for the
overall servicing (as "servicing" is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect to
Mortgage Loans.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amounts received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated Mortgage Loan.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Servicer or the Xxxxx Fargo Servicer, as applicable, 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 Servicer under this Agreement or by the Xxxxx
Fargo Servicer pursuant to the Xxxxx Fargo Agreements, with respect to some or
all of the Mortgage Loans, that are identified in Item 1122(d) of Regulation AB.
Subservicing Account: As defined in Section 3.08.
Subservicing Agreements: As defined in Section 3.02(a).
Substitute Mortgage Loan: A Mortgage Loan eligible to be
substituted for a Deleted Mortgage Loan pursuant to the terms of the Assignment
and Recognition Agreement.
Substitution Adjustment Amount: Any amount required to be paid in
connection with a Substitute Mortgage Loan pursuant to the Assignment and
Recognition Agreement.
Supplemental Interest Trust: The corpus of a trust created
pursuant to Section 4.06 of this Agreement, consisting of the Interest Rate Swap
Agreement, the Class IO Interest and the right to receive Class IO Shortfalls,
subject to the obligation to pay amounts specified in Section 4.06.
Swap Collateral Account: As defined in Section 4.07.
Swap LIBOR: With respect to any Distribution Date (and the related
Interest Accrual Period), the product of (i) USD-LIBOR-BBA (as used in the
Interest Rate Swap Agreement), (ii) two, and (iii) the quotient of (a) the
actual number of days in the Interest Accrual Period for the LIBOR Certificates
divided by (b) 30.
Swap Provider: Xxxxxxx Sachs Capital Markets, L.P., a Delaware
limited partnership, and its successors in interest, and any successor swap
provider under any replacement Interest Rate Swap Agreement.
Swap Termination Payment: Any payment payable by the Trust or the
Swap Provider upon termination of the Interest Rate Swap Agreement as a result
of an Event of Default (as defined in the Interest Rate Swap Agreement) or a
Termination Event (as defined in the Interest Rate Swap Agreement).
Tax Matters Person: The Holder of the (i) Class RC, (ii) Class R
and (iii) Class RX Certificates designated as "tax matters person" of (i)
Pooling-Tier REMIC-1, (ii) Pooling-Tier REMIC-2, the Lower-Tier REMIC and the
Upper-Tier REMIC, and (iii) the Class X REMIC respectively, in the manner
provided under Treasury Regulations Section 1.860F-4(d) and Treasury Regulations
Section 301.6231(a)(7)-1.
Tax Service Contract: As defined in Section 3.09(a).
Telerate Page 3750: The display page currently so designated on
the Bridge Telerate Service (or such other page as may replace that page on that
service for displaying comparable rates or prices).
10-K Filing Deadline: As defined in Section 8.12(c).
Termination Price: As defined in Section 9.01.
30 Day Delinquency: The failure of the Mortgagor to make any
Scheduled Payment due under the Mortgage Note on a Due Date, which failure
continues unremedied for a period of one month after the following Due Date.
Total Monthly Excess Spread: As to any Distribution Date, an
amount equal to the excess if any, of (i) the interest on the Mortgage Loans
received by the Servicer or the Xxxxx Fargo Servicer, as applicable, on or prior
to the related Determination Date or advanced by the Servicer or the Xxxxx Fargo
Servicer, as applicable, for the related Remittance Date (net of Expense Fees)
and plus any Net Swap Receipts and less any Net Swap Payments and Swap
Termination Payments, other than Defaulted Swap Termination Payments, for such
Distribution Date, over (ii) the sum of the interest payable to the LIBOR
Certificates on such Distribution Date pursuant to Section 4.02(a)(i); provided,
however, that Net Swap Receipts shall be included in Total Monthly Excess Spread
(and correspondingly any Extra Principal Distribution Amount) only to the extent
of current or prior Realized Losses not previously reimbursed.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a Trigger
Event exists if (i) the quotient (expressed as a percentage) of (1) the rolling
three month average of the aggregate unpaid principal balance of 60+ Day
Delinquent Mortgage Loans, divided by (2) the aggregate unpaid principal balance
of the Mortgage Loans as of the last day of the related Due Period, equals or
exceeds 41.75% of the Senior Enhancement Percentage as of the last day of the
prior Due Period or (ii) the quotient (expressed as a percentage) of (x) the
aggregate amount of Realized Losses incurred since the Cut-off Date through the
last day of the related Prepayment Period divided by (y) the Cut-off Date Pool
Principal Balance, exceeds the applicable percentages set forth below with
respect to such Distribution Date:
Distribution Date Occurring In Cumulative Realized Loss Percentage
----------------------------------- -----------------------------------
October 2008 through September 2009 1.15% for the first month, plus an
additional 1/12th of 1.45% for each month
thereafter
October 2009 through September 2010 2.60% for the first month, plus an
additional 1/12th of 1.50% for each month
thereafter
October 2010 through September 2011 4.10% for the first month, plus an
additional 1/12th of 1.15% for each month
thereafter
October 2011 through September 2012 5.25% for the first month, plus an
additional 1/12th of 0.65% for each month
thereafter
October 2012 and thereafter 5.90%
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting
of (i) the Mortgage Loans and all interest and principal with respect thereto
received on or after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) the
Collection Account, the Excess Reserve Fund Account, the Distribution Account,
and all amounts deposited therein pursuant to the applicable provisions of this
Agreement; (iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure or otherwise; (iv) the Interest Rate
Swap Agreement; (v) the Trust's rights under the Responsible Party Agreements;
(vi) the Supplemental Interest Trust; and (vii) all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing.
Trust REMIC: Any of Pooling-Tier REMIC-1, Pooling-Tier REMIC-2,
the Lower-Tier REMIC, the Upper-Tier REMIC or the Class X REMIC, as applicable.
Trustee: Deutsche Bank National Trust Company, and its successors
in interest and, if a successor trustee is appointed hereunder, such successor.
Trustee Fee: As to each Mortgage Loan and any Distribution Date,
an amount equal to one month's interest at the related Trustee Fee Rate on the
Stated Principal Balance of such Mortgage Loan as of the first day of the
related Due Period (or as of the Closing Date in the case of the first
Distribution Date) or, in the event of any payment of interest which accompanies
a Principal Prepayment in Full made by the Mortgagor, interest at the Trustee
Fee Rate on the Stated Principal Balance of such Mortgage Loan for the period
covered by such payment of interest.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.007% per
annum.
Trustee Float Period: With respect to any Distribution Date and
the related amounts in the Distribution Account, the period commencing on the
Business Day immediately preceding such Distribution Date and ending on such
Distribution Date.
Underwriter's Exemption: Any exemption listed in footnote 1 of,
and amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(2002), or any successor exemption.
Underwriting Guidelines: The underwriting guidelines attached to
the Purchase Agreement.
Unpaid Interest Amount: As of any Distribution Date and any Class
of Certificates, the sum of (a) the portion of the Accrued Certificate Interest
Distribution Amount from prior Distribution Dates remaining unpaid immediately
prior to the current Distribution Date and (b) interest on the amount in clause
(a) above at the applicable Pass-Through Rate (to the extent permitted by
applicable law).
Upper-Tier Carry Forward Amount: With respect to each Class of
LIBOR Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Upper-Tier Interest Rate for the Class of Corresponding
Upper-Tier REMIC Regular Interest is based upon the Upper-Tier REMIC Loan Group
I Rate or Upper-Tier REMIC Loan Group II Rate, as and if applicable, or the
Upper-Tier REMIC WAC Rate, the excess, if any, of (i) the amount of interest
such Class of Upper-Tier Regular Interest would otherwise be entitled to receive
on such Distribution Date had such Upper-Tier REMIC Regular Interest not been
subject to the Upper-Tier REMIC Loan Group I Rate or Upper-Tier REMIC Loan Group
II Rate, as and if applicable, or the Upper-Tier REMIC WAC Rate, over (ii) the
amount of interest payable on such Class of Upper-Tier Regular Interest on such
Distribution Date taking into account the Upper-Tier REMIC Loan Group I Rate or
Upper-Tier REMIC Loan Group II Rate, as and if applicable, or the Upper-Tier
REMIC WAC Rate and (B) the Upper-Tier Carry Forward Amount for such Class of
Certificates for all previous Distribution Dates not previously paid, together
with interest thereon at a rate equal to the applicable Upper-Tier Interest Rate
for such Class of Certificates for such Distribution Date, without giving effect
to the Upper-Tier REMIC Loan Group I Rate or Upper-Tier REMIC Loan Group II
Rate, as and if applicable, or the Upper-Tier REMIC WAC Rate.
Upper-Tier Interest Rate: As described in the Preliminary
Statement.
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
Upper-Tier REMIC: As described in the Preliminary Statement.
Upper-Tier REMIC Loan Group I Rate: As described in the
Preliminary Statement.
Upper-Tier REMIC Loan Group II Rate: As described in the
Preliminary Statement.
Upper-Tier REMIC WAC Rate: For any Distribution Date, the weighted
average of the Lower-Tier Interest Rates on the Lower-Tier Regular Interests
(other than the Class LT-IO and Class LT-3 Interests), as of the first day of
the related Interest Accrual Period, weighted on the basis of the Lower-Tier
Principal Amounts of such Lower-Tier Regular Interests as of the first day of
the related Interest Accrual Period.
U.S. Person: (i) A citizen or resident of the United States; (ii)
a corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of any
State thereof, including, for this purpose, the District of Columbia; (iii) a
partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any state
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the Holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, and (c) the remaining Voting Rights shall be allocated
among Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date. The Class C
Certificates shall have no Voting Rights.
WAC Cap: With respect to the Mortgage Loans as of any Distribution
Date, a per annum rate equal to the product of (i) 30 divided by the actual
number of days in the applicable Interest Accrual Period and (ii) the sum of (A)
the weighted average of the Adjusted Net Mortgage Interest Rates then in effect
at the beginning of the related Due Period on the Mortgage Loans and (B) Net
Swap Receipts, if any, for that Distribution Date less Net Swap Payments, if
any, for that Distribution Date divided by the Stated Principal Balance of the
Mortgage Loans at the beginning of the related Due Period, multiplied by 12.
Xxxxx Fargo: Xxxxx Fargo Bank, National Association, and its
successors in interest.
Xxxxx Fargo Agreements: Collectively, the Xxxxx Fargo Servicing
Agreement and the Xxxxx Fargo Assignment Agreements, copies of which are
attached hereto as Exhibit X.
Xxxxx Fargo Assignment Agreements: Collectively, the Step 1
Assignment and Agreement and the Step 2 Assignment Agreement, each dated as of
the Closing Date.
Xxxxx Fargo Servicing Agreement: The Servicing Agreement, dated as
of June 30, 2006, among the Sponsor and Xxxxx Fargo.
Xxxxx Fargo Servicer: Xxxxx Fargo, and if a successor servicer is
appointed under the Xxxxx Fargo Agreements, such successor.
Xxxxx Fargo Step 1 Assignment Agreement: The Assignment,
Assumption and Recognition Agreement, dated as of the Closing Date, among the
Depositor, the Sponsor and Xxxxx Fargo.
Xxxxx Fargo Step 2 Assignment Agreement: The Assignment,
Assumption and Recognition Agreement, dated as of the Closing Date, among the
Depositor, Xxxxx Fargo and the Trustee.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust,
hereby accepts the Trust Fund.
(b) In connection with the transfer and assignment of each
Mortgage Loan, the Depositor has delivered or caused to be delivered to the
Trustee for the benefit of the Certificateholders the following documents or
instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note (except for up to 13 of the
Mortgage Notes for which there is a lost note affidavit and the copy of
the Mortgage Note) bearing all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee,
endorsed "Pay to the order of _____________, without recourse" and signed
in the name of the last endorsee. To the extent that there is no room on
the face of any Mortgage Note for an endorsement, the endorsement may be
contained on an allonge, unless state law does not so allow and the
Trustee has been advised by the Responsible Party that state law does not
so allow. If the Mortgage Loan was acquired by the Responsible Party in a
merger, the endorsement must be by "[last endorsee], successor by merger
to [name of predecessor]". If the Mortgage Loan was acquired or
originated by the last endorsee while doing business under another name,
the endorsement must be by "[last endorsee], formerly known as [previous
name]";
(ii) the original of any guarantee executed in connection with the
Mortgage Note;
(iii) the original Mortgage with evidence of recording thereon or
a certified true copy of such Mortgage submitted for recording. If in
connection with any Mortgage Loan, the Responsible Party 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 Responsible
Party (to the extent that it has not previously delivered the same to the
Sponsor or the Trustee), shall deliver or cause to be delivered to the
Trustee, a photocopy of such Mortgage, together with (A) in the case of a
delay caused by the public recording office, an officer's certificate of
the Responsible Party, or evidence of certification on the face of such
photocopy of such Mortgage, 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 Trustee upon receipt
thereof by the Responsible Party; or (B) in the case of a Mortgage where
a public recording office retains the original recorded Mortgage or in
the case where a Mortgage is lost after recordation in a public recording
office, a copy of such Mortgage certified by such public recording office
to be a true and complete copy of the original recorded Mortgage;
(iv) the originals of all assumption, modification, consolidation
or extension agreements (if provided), with evidence of recording thereon
or a certified true copy of such agreement submitted for recording;
(v) except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan endorsed in blank
and in recordable form;
(vi) the originals of all intervening Assignments of Mortgage (if
any) evidencing a complete chain of assignment from the applicable
originator (or MERS with respect to each MERS Designated Mortgage Loan)
to the last endorsee with evidence of recording thereon, or if any such
intervening assignment has not been returned from the applicable
recording office or has been lost or if such public recording office
retains the original recorded Assignments of Mortgage, the Responsible
Party (to the extent that it has not previously delivered the same to the
Sponsor or the Trustee), shall deliver or cause to be delivered to the
Trustee, a photocopy of such intervening assignment, together with (A) in
the case of a delay caused by the public recording office, an officer's
certificate of the Responsible Party, or evidence of certification on the
face of such photocopy of such intervening assignment, or certified by
the title company, escrow agent, or closing attorney stating that such
intervening Assignment of Mortgage has been dispatched to the appropriate
public recording office for recordation and that such original recorded
intervening Assignment of Mortgage or a copy of such intervening
Assignment of Mortgage certified by the appropriate public recording
office to be a true and complete copy of the original recorded
intervening assignment of mortgage will be promptly delivered to the
Trustee upon receipt thereof by the Responsible Party, or (B) in the case
of an intervening assignment where a public recording office retains the
original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by such public
recording office to be a true and complete copy of the original recorded
intervening assignment;
(vii) the original mortgagee title insurance policy or attorney's
opinion of title and abstract of title or, in the event such original
title policy is unavailable, a certified true copy of the related policy
binder or commitment for title certified to be true and complete by the
title insurance company; and
(viii) a security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage (if provided);
The Depositor shall use reasonable efforts to assist the Trustee
and the Servicer in enforcing the obligations of the Sponsor under the
Responsible Party Agreements.
Each Mortgage Loan for which a Mortgage Note is missing shall be
evidenced by a lost note affidavit as of the Closing Date. In the event one or
more lost note affidavits are provided to cover multiple missing Mortgage Notes
on the Closing Date, the Depositor shall use reasonable efforts to cause the
Responsible Party to deliver to the Trustee the applicable individual lost note
affidavits within ten (10) Business Days of the Closing Date. If the Responsible
Party fails to deliver the required individual lost note affidavits within the
specified period of time, the Trustee shall notify the Responsible Party to take
such remedial actions, including, without limitation, the repurchase by the
Responsible Party of such Mortgage Loan within 60 days of the Closing Date.
The Depositor shall use reasonable efforts to cause the Sponsor
and the Responsible Party to deliver to the Trustee the applicable recorded
document promptly upon receipt from the respective recording office but in no
event later than 150 days from the Closing Date.
If any Mortgage has been recorded in the name of Mortgage
Electronic Registration System, Inc. ("MERS") or its designee, no Assignment of
Mortgage in favor of the Trustee will be required to be prepared or delivered
and instead, the Servicer shall take all reasonable actions as are necessary at
the expense of the Depositor to cause the Trust to be shown as the owner of the
related Mortgage Loan on the records of MERS for the purpose of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
The Depositor shall use reasonable efforts to cause the Sponsor
and Responsible Party, as applicable, to forward to the Trustee additional
documents evidencing an assumption, modification, consolidation or extension of
a Mortgage Loan approved by the Responsible Party in accordance with the terms
of the Responsible Party Agreements. All such Mortgage Loan Documents held by
the Trustee as to each Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall use
reasonable efforts to cause the Sponsor or Responsible Party to deliver to the
Trustee Assignments of Mortgages, in blank, for each applicable Mortgage Loan
(except with respect to each MERS Designated Mortgage Loan). The Depositor shall
use reasonable efforts to cause the Sponsor or Responsible Party to cause the
Assignments of Mortgage with completed recording information to be provided to
the Servicer in a reasonably acceptable manner. No later than thirty (30)
Business Days following the later of the Closing Date and the date of receipt by
the Servicer of the fully completed Assignments of Mortgages in recordable form,
the Servicer shall promptly submit or cause to be submitted for recording, at
the expense of the Responsible Party pursuant to the Purchase Agreement, at no
expense to the Trust Fund, the Trustee or the Depositor in the appropriate
public office for real property records, each Assignment of Mortgage referred to
in Section 2.01(b)(v). Notwithstanding the foregoing, however, for
administrative convenience and facilitation of servicing and to reduce closing
costs, the Assignments of Mortgage shall not be required to be completed and
submitted for recording with respect to any Mortgage Loan if the Trustee and
each Rating Agency has received an opinion of counsel, satisfactory in form and
substance to the Trustee and each Rating Agency, to the effect that the
recordation of such Assignments of Mortgage in any specific jurisdiction is not
necessary to protect the Trustee's interest in the related Mortgage Note or (ii)
if such Mortgage Loan is a MERS Designated Mortgage Loan. If the Assignment of
Mortgage is to be recorded, the Depositor shall use reasonable efforts to cause
the Sponsor to assign the Mortgage at the Sponsor's expense to "Deutsche Bank
National Trust Company, as trustee under the Pooling and Servicing Agreement
dated as of September 1, 2006, FFMLT Trust 2006-FF13." In the event that any
such assignment is lost or returned unrecorded because of a defect therein with
respect to any Mortgage Loan, and such defect is not cured, the Trustee shall
cause the Sponsor to repurchase such Mortgage Loan pursuant to the Responsible
Party Agreements.
On or prior to the Closing Date, the Depositor shall deliver to
the Trustee and the Servicer a copy of the Data Tape Information in electronic,
machine readable medium in a form mutually acceptable to the Depositor, the
Servicer and the Trustee. Within ten (10) Business Days of the Closing Date, the
Depositor shall deliver a copy of the complete Mortgage Loan Schedule to the
Trustee and the Servicer.
In the event, with respect to any Mortgage Loan, that such
original or copy of any document submitted for recordation to the appropriate
public recording office is not so delivered to the Trustee within 180 days of
the applicable Original Purchase Date as specified in the Purchase Agreement,
the Trustee shall notify the Depositor and the Depositor shall take or cause to
be taken such remedial actions under the Purchase Agreement as may be permitted
to be taken thereunder, including without limitation, if applicable, the
repurchase by the Responsible Party of such Mortgage Loan. The foregoing
repurchase remedy shall not apply in the event that the Responsible Party cannot
deliver such original or copy of any document submitted for recordation to the
appropriate public recording office within the specified period due to a delay
caused by the recording office in the applicable jurisdiction; provided, that
the 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 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 Trustee prior to the Closing Date of a copy of such
Mortgage or assignment, as the case may be, certified (such certification to be
an original thereof) by the public recording office to be a true and complete
copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "FFMLT Trust 2006-FF13" and
Deutsche Bank National Trust Company is hereby appointed as Trustee in
accordance with the provisions of this Agreement. The Trust's fiscal year is the
calendar year.
(d) The Trust shall have the capacity, power and authority, and
the Trustee on behalf of the Trust is hereby authorized, to accept the sale,
transfer, assignment, set over and conveyance by the Depositor to the Trust of
all the right, title and interest of the Depositor in and to the Trust Fund
(including, without limitation, the Mortgage Loans, the Interest Rate Swap
Agreement and the Responsible Party Agreements) pursuant to Section 2.01(a). The
parties hereby acknowledge and agree that the execution and delivery of the
Interest Rate Swap Agreement by the Trustee on behalf of the Trust was
authorized and is hereby ratified and confirmed.
(e) It is agreed and understood by the Depositor and the Trustee
that it is the policy and intention of the Trust to acquire only Mortgage Loans
meeting the requirements set forth in this Agreement, including without
limitation, including the requirement that no Mortgage Loan be a High Cost
Mortgage Loan and no Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 be governed by the Georgia Fair Lending Act.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans. The
Trustee, on behalf of the Trust, hereby accepts the Trust Fund and assumes the
obligations of the Depositor under the Responsible Party Agreements from and
after the Closing Date and solely insofar as they relate to the Mortgage Loans.
For avoidance of doubt, the parties acknowledge that all obligations so assumed
are obligations of the Trust and, to the extent such obligations are payment or
monetary obligations, are payable solely from the Trust Fund, and not of the
Trustee in its individual capacity. The Trustee, on behalf of the Trust,
acknowledges receipt of the documents identified in the Initial Certification in
the form annexed hereto as Exhibit F, 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. The Trustee acknowledges that it will maintain possession of
the related Mortgage Notes in the State of California unless otherwise permitted
by the Rating Agencies.
Prior to and as a condition to the Closing, the Trustee shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor and the Servicer or the Xxxxx Fargo Servicer, as applicable, an
Initial Certification prior to the Closing Date, or as the Depositor agrees to,
on the Closing Date, certifying receipt of a Mortgage Note and Assignment of
Mortgage for each Mortgage Loan with any exceptions thereon. The Trustee shall
not be responsible to verify the validity, sufficiency or genuineness of any
document in any Custodial File.
On the Closing Date, the Trustee shall ascertain that all
documents required to be reviewed by it are in its possession, and shall deliver
to the Depositor and the Servicer or the Xxxxx Fargo Servicer, as applicable, an
Initial Certification, in the form annexed hereto as Exhibit F, and shall
deliver to the Depositor and the Servicer or the Xxxxx Fargo Servicer, as
applicable, a Document Certification and Exception Report, in the form annexed
hereto as Exhibit G, within 90 days (or with respect to any Substitute Mortgage
Loan delivered to the Trustee, within 30 days after the receipt of the Mortgage
File by the Trustee) after the Closing Date to the effect that, as to each
Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or any Mortgage Loan specifically identified in such certification
as an exception and not covered by such certification): (i) all documents
required to be reviewed by it are in its possession; (ii) such documents have
been reviewed by it and appear regular on their face and relate to such Mortgage
Loan; (iii) based on its examination and only as to the foregoing documents, the
information set forth in items (1), (2) and (13) of the Mortgage Loan Schedule
and items (1), (2) and (13) of the Data Tape Information respecting such
Mortgage Loan is correct; and (iv) each Mortgage Note has been endorsed as
provided in Section 2.01 of this Agreement. The Trustee shall not be responsible
to verify the validity, sufficiency or genuineness of any document in any
Custodial File.
The Trustee shall retain possession and custody of each Custodial
File in accordance with and subject to the terms and conditions set forth
herein. The Servicer shall promptly deliver to the Trustee, upon the execution
or receipt thereof, the originals of such other documents or instruments
constituting the Custodial File as come into the possession of the Servicer from
time to time.
The Depositor shall use reasonable efforts to cause the
Responsible Party to deliver to the Servicer or the Xxxxx Fargo Servicer, as
applicable, copies of all trailing documents required to be included in the
Custodial File at the same time the original or certified copies thereof are
delivered to the Trustee, including but not limited to such documents as the
title insurance policy and any other Mortgage Loan Documents upon return from
the public recording office. The Depositor shall use reasonable efforts to cause
the Responsible Party to deliver such documents at the Responsible Party's
expense (pursuant to the Purchase Agreement) to the Servicer or the Xxxxx Fargo
Servicer, as applicable, and in no event shall the Servicer or the Xxxxx Fargo
Servicer, as applicable, be responsible for any expenses relating to such
delivery obligation.
Section 2.03 Representations, Warranties and Covenants of the
Servicer. (a) NCHLS hereby makes the representations and warranties set forth in
Schedule II hereto to the Depositor and the Trustee as of the Closing Date.
(b) It is understood and agreed by the Servicer that the
representations and warranties set forth in this Section 2.03 shall survive the
transfer of the Mortgage Loans by the Depositor to the Trustee, and shall inure
to the benefit of the Depositor and the Trustee notwithstanding any restrictive
or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the
examination or failure to examine any Mortgage File. Upon discovery by any of
the Depositor, the Trustee or the Servicer of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
(c) In connection with any repurchase or substitution of a
Mortgage Loan pursuant to this Section 2.03, Section 2.07, Section 3.28 or the
Responsible Party Agreements, the Servicer shall, based on information provided
by the Sponsor, amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Substitute Mortgage Loan or Loans and the Servicer shall
deliver the amended Mortgage Loan Schedule to the Trustee. Upon any such
repurchase or any substitution and the deposit to the Collection Account of any
Substitution Adjustment Amount, the Trustee shall release the Mortgage File held
for the benefit of the Certificateholders relating to such Deleted Mortgage Loan
to the Sponsor, the Depositor or the Responsible Party, as applicable, and shall
execute and deliver at the direction of the Sponsor, the Depositor or the
Responsible Party, as applicable, such instruments of transfer or assignment
prepared by the Sponsor, the Depositor or the Responsible Party, as applicable,
in each case without recourse, as shall be necessary to vest title in the
Sponsor or its designee, the Depositor or the Responsible Party, as applicable,
or their respective designees, the Trustee's interest in any Deleted Mortgage
Loan repurchased or substituted for as described above in this Section 2.03(c).
(d) For any month in which the Sponsor the Depositor or the
Responsible Party, as applicable, substitutes one or more Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Servicer will determine the
amount (if any) by which the aggregate unpaid principal balance of all such
Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of the scheduled principal portion of the Scheduled Payments due in
the Due Period of substitution). The Depositor shall remit, with respect to any
Mortgage Loans for which the Depositor is making a substitution, or shall use
reasonable efforts to cause the Sponsor the Depositor or the Responsible Party,
as applicable, to remit to the Servicer or the Xxxxx Fargo Servicer, as
applicable, on or before the next Remittance Date any Substitution Adjustment
Amount.
(e) In the event that a Mortgage Loan shall have been repurchased
pursuant to this Agreement or the Responsible Party Agreements, the proceeds
from such repurchase shall be deposited in the Collection Account by the
Servicer pursuant to Section 3.10 on or before the next Remittance Date and upon
such deposit of the Repurchase Price, and receipt of a Request for Release in
the form of Exhibit L hereto, the Trustee shall release the related Custodial
File held for the benefit of the Certificateholders to such Person as directed
by the Servicer or the Xxxxx Fargo Servicer, as applicable, and the Trustee
shall execute and deliver at such Person's direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
as shall be necessary to transfer title from the Trustee. It is understood and
agreed that the obligation under this Agreement of any Person to cure,
repurchase or replace any Mortgage Loan as to which a breach has occurred and is
continuing together with satisfaction of any related indemnification obligations
shall constitute the sole remedy against such Persons respecting such breach
available to Certificateholders, the Depositor, the Servicer or the Trustee on
their behalf.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Custodial Files to the Trustee for
the benefit of the Certificateholders.
Section 2.04 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, has executed and delivered to or
upon the order of the Depositor, the Certificates in authorized Denominations
evidencing directly or indirectly the entire ownership of the Trust Fund. The
Trustee agrees to hold the Trust Fund and exercise the rights referred to above
for the benefit of all present and future Holders of the Certificates.
Section 2.05 REMIC Matters. The Preliminary Statement sets forth
the designations for federal income tax purposes of all interests created
hereby. For the avoidance of doubt, the Class C Certificates shall not represent
a regular or residual interest in any Trust REMIC. The "Start-up Day" of each
Trust REMIC for purposes of the REMIC Provisions shall be the Closing Date. The
"latest possible maturity date" of the regular interests in each Trust REMIC is
the Distribution Date in October 2036, which is the Distribution Date in the
month following the month in which the latest maturity date of any Mortgage Loan
occurs. Amounts distributable to the Class X Certificates (prior to any
reduction for any Basis Risk Payment or Swap Termination Payment), exclusive of
any amounts received from the Swap Provider, shall be deemed paid from the
Upper-Tier REMIC to the Class X REMIC in respect of the Class UT-X Interest and
the Class UT-IO Interest and then from the Class X REMIC in respect of the Class
X Interest and the Class IO Interest to the Holders of the Class X Certificates
prior to distribution of any Basis Risk Payments to the LIBOR Certificates or
Net Swap Payments or Swap Termination Payments to the Swap Provider.
For federal income tax purposes, any amount distributed on the
LIBOR Certificates on any Distribution Date in excess of the amount
distributable on their Corresponding Class of Upper-Tier Regular Interest on
such Distribution Date shall be treated as having been paid from the Excess
Reserve Fund Account or the Supplemental Interest Trust, as applicable, and any
amount distributable on such Corresponding Class of Upper-Tier Regular Interest
on such Distribution Date in excess of the amount distributable on the
Corresponding Class of LIBOR Certificates on such Distribution Date shall be
treated as having been paid to the Supplemental Interest Trust, all pursuant to
and as further provided in Section 8.13.
Section 2.06 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee and the
Servicer that as of the date of this Agreement or as of such date specifically
provided herein:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to convey
the Mortgage Loans and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite corporate action having been
taken, and, assuming the due authorization, execution and delivery hereof by the
Servicer and the Trustee, constitutes or will constitute the legal, valid and
binding agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or
registration or filing with, or notice to, any governmental authority or court
is required for the execution, delivery and performance of or compliance by the
Depositor with this Agreement or the consummation by the Depositor of any of the
transactions contemplated hereby, except as have been made on or prior to the
Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of, or
constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) of any
term, condition or provision of any material indenture, deed of trust, contract
or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound; (ii)
results or will result in a violation of any law, rule, regulation, order,
judgment or decree applicable to the Depositor of any court or governmental
authority having jurisdiction over the Depositor or its subsidiaries; or (iii)
results in the creation or imposition of any lien, charge or encumbrance which
would have a material adverse effect upon the Mortgage Loans or any documents or
instruments evidencing or securing the Mortgage Loans;
(f) There are no actions, suits or proceedings before or against
or investigations of, the Depositor pending, or to the knowledge of the
Depositor, threatened, before any court, administrative agency or other
tribunal, and no notice of any such action, which, in the Depositor's reasonable
judgment, might materially and adversely affect the performance by the Depositor
of its obligations under this Agreement, or the validity or enforceability of
this Agreement;
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any other
Person, and the Depositor has transferred all right, title and interest in each
Mortgage Loan to the Trustee. The transfer of each Mortgage Note and each
Mortgage as and in the manner contemplated by this Agreement is sufficient
either (i) fully to transfer to the Trustee, for the benefit of the
Certificateholders, all right, title, and interest of the Depositor thereto as
note holder and mortgagee or (ii) to grant to the Trustee, for the benefit of
the Certificateholders, the security interest referred to in Section 10.04.
It is understood and agreed that the representations, warranties
and covenants set forth in this Section 2.06 shall survive delivery of the
respective Custodial Files to the Trustee and shall inure to the benefit of the
Trustee.
Within 30 days of the earlier of either discovery by or notice to
the Depositor of a breach of the representations and warranties set forth in
clause (h) above that materially and adversely affects the value of any Mortgage
Loan or the interest of the Trustee or the Certificateholders therein, the
Depositor shall use its best efforts to promptly cure such breach in all
material respects and if such defect or breach cannot be remedied, the Depositor
shall repurchase such Mortgage Loan at the Repurchase Price or substitute a
Substitute Mortgage Loan for the defective Mortgage Loan. Any such repurchase
shall be conducted in the same manner as set forth in Section 2.03. The
obligations of the Depositor to cure such breach or to purchase any Mortgage
Loan constitute the sole remedies respecting a material breach of any such
representation or warranty to the Holders of the Certificates and the Trustee.
Section 2.07 Enforcement of Obligations for Breach of Mortgage
Loan Representations. Upon discovery by any of the parties hereto of a breach of
a representation or warranty made by the Sponsor or Responsible Party pursuant
to the Responsible Party Agreements, the party discovering such breach shall
give prompt written notice thereof to the other parties to this Agreement and
the Responsible Party. The Trustee shall take such action, with the Depositor's
consent, with respect to such breach under the Responsible Party Agreements as
may be necessary or appropriate to enforce the rights of the Trust with respect
thereto.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. (a) For and on
behalf of the Certificateholders, the Servicer shall service and administer the
Mortgage Loans in accordance with the terms of this Agreement and the respective
Mortgage Loans, to the extent consistent with such terms, in compliance with all
applicable federal, state and local laws, and in the same manner in which it
services and administers similar mortgage loans for its own portfolio, giving
due consideration to customary and usual standards of practice of mortgage
lenders and loan servicers administering similar mortgage loans but without
regard to:
(i) any relationship that the Servicer, any Subservicer or any
Affiliate of the Servicer or any Subservicer may have with the related
Mortgagor;
(ii) the ownership or non-ownership of any Certificate by the
Servicer or any Affiliate of the Servicer;
(iii) the Servicer's obligation to make P&I Advances or Servicing
Advances; or
(iv) the Servicer's or any Subservicer's right to receive
compensation for its services hereunder or with respect to any particular
transaction.
Notwithstanding any provision in this Agreement to the contrary,
after the Servicing Transfer Date, the Servicer shall not have any obligation or
responsibility to service those Mortgage Loans the servicing for which will
transfer to the Xxxxx Fargo Servicer on the Servicing Transfer Date.
To the extent consistent with the foregoing, the Servicer shall
seek to maximize the timely and complete recovery of principal and interest on
the related Mortgage Notes. Subject only to the above-described servicing
standards and the terms of this Agreement and of the respective Mortgage Loans,
the Servicer shall have full power and authority, acting alone or through
Subservicers as provided in Section 3.02, to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing, the
Servicer in its own name or in the name of a Subservicer is hereby authorized
and empowered by the Trustee when the Servicer believes it appropriate in its
best judgment in accordance with Accepted Servicing Practices, to execute and
deliver any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge, and all other comparable instruments, with respect
to the Mortgage Loans and the Mortgaged Properties and to institute foreclosure
proceedings or obtain a deed-in-lieu of foreclosure so as to convert the
ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Trustee and in the name of the Trust. The Servicer
shall service and administer the Mortgage Loans in accordance with applicable
state and federal law and shall provide to the Mortgagors any reports required
to be provided to them thereby. The Servicer shall also comply in the
performance of this Agreement with all reasonable rules and requirements of each
insurer under any standard hazard insurance policy. Subject to Section 3.16, the
Trustee shall execute, at the written request of the Servicer, and furnish to
the Servicer and any Subservicer such documents as are necessary or appropriate
to enable the Servicer or any Subservicer to carry out their servicing and
administrative duties hereunder, and the Trustee hereby grants to the Servicer,
and this Agreement shall constitute, a power of attorney to carry out such
duties including a power of attorney to take title to Mortgaged Properties after
foreclosure on behalf of the Trustee and in the name of the Trust. The Trustee
shall execute any power of attorney furnished to it by the Servicer in favor of
the Servicer for the purposes described herein to the extent necessary or
desirable to enable the Servicer to perform its duties hereunder. The Trustee
shall not be liable for the actions of the Servicer or any Subservicers under
such powers of attorney.
(b) Subject to Section 3.09(b), in accordance with the standards
of the preceding paragraph, the Servicer shall advance or cause to be advanced
funds as necessary for the purpose of effecting the timely payment of taxes and
assessments on the Mortgaged Properties, which advances shall be Servicing
Advances reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09(b), and further as provided in Section 3.11.
Any cost incurred by the Servicer or by Subservicers in effecting the timely
payment of taxes and assessments on a Mortgaged Property shall not be added to
the unpaid principal balance of the related Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so permit.
(c) Notwithstanding anything in this Agreement to the contrary,
the Servicer may not make any future advances with respect to a Mortgage Loan
(except as provided in Section 4.01 and except for Servicing Advances) and the
Servicer shall not (i) permit any modification with respect to any Mortgage Loan
that would change the Mortgage Interest Rate, reduce or increase the principal
balance (except for reductions resulting from actual payments of principal) or
change the final maturity date on such Mortgage Loan (except for (A) a reduction
of interest or principal payments resulting from the application of the
Servicemembers Civil Relief Act or any similar state statutes or (B) as provided
in Section 3.07(a), if the Mortgagor is in default with respect to the Mortgage
Loan or such default is, in the judgment of the Servicer, reasonably
foreseeable) or (ii) permit any modification, waiver or amendment of any term of
any Mortgage Loan that would both (A) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed
Treasury regulations promulgated thereunder) and (B) cause any Trust REMIC to
fail to qualify as a REMIC under the Code or the imposition of any tax on
"prohibited transactions" or "contributions after the start-up day" under the
REMIC Provisions, or (iii) except as provided in Section 3.07(a), waive any
Prepayment Premiums.
(d) The Servicer may delegate its responsibilities under this
Agreement; provided, however, that no such delegation shall release the Servicer
from the responsibilities or liabilities arising under this Agreement.
Section 3.02 Subservicing Agreements between the Servicer and
Subservicers.
(a) The Servicer may enter into subservicing agreements with
Subservicers, for the servicing and administration of the Mortgage Loans
("Subservicing Agreements"). The Servicer represents and warrants to the other
parties hereto that no Subservicing Agreement is in effect as of the Closing
Date with respect to any Mortgage Loans required to be serviced by it hereunder.
The Servicer shall give notice to the Depositor and the Trustee of any such
Subservicer and Subservicing Agreement, which notice shall contain all
information (including without limitation a copy of the Subservicing Agreement)
reasonably necessary to enable the Trustee, pursuant to Section 8.12(g), to
accurately and timely report the event under Item 6.02 of Form 8-K pursuant to
the Exchange Act (if such reports under the Exchange Act are required to be
filed under the Exchange Act). During the period when reports are required to be
filed for the Trust under the Exchange Act, no Subservicing Agreement shall be
effective until 30 days after such written notice is received by both the
Depositor and the Trustee and thereafter shall be effective at the time the
Servicer and any Subservicer enter into any such Subservicing Agreement. The
Trustee shall not be required to review or consent to such Subservicing
Agreements and shall have no liability in connection therewith.
(b) Each Subservicer shall be (i) authorized to transact business
in the state or states in which the related Mortgaged Properties it is to
service are situated, if and to the extent required by applicable law to enable
the Subservicer to perform its obligations hereunder and under the Subservicing
Agreement, (ii) an institution approved as a mortgage loan originator by the
Federal Housing Administration or an institution that has deposit accounts
insured by the FDIC and (iii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage
servicer. Each Subservicing Agreement must impose on the Subservicer
requirements conforming to the provisions set forth in Section 3.08 and provide
for servicing of the Mortgage Loans consistent with the terms of this Agreement.
The Servicer will examine each Subservicing Agreement and will be familiar with
the terms thereof. The terms of any Subservicing Agreement will not be
inconsistent with any of the provisions of this Agreement. The Servicer and the
respective Subservicers may enter into and make amendments to the Subservicing
Agreements or enter into different forms of Subservicing Agreements; provided,
however, that any such amendments or different forms shall be consistent with
and not violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of the Trustee, without the consent of
the Trustee. Any variation without the consent of the Trustee from the
provisions set forth in Section 3.08 relating to insurance or priority
requirements of Subservicing Accounts, or credits and charges to the
Subservicing Accounts or the timing and amount of remittances by the
Subservicers to the Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. The Servicer shall deliver to the
Trustee and the Depositor copies of all Subservicing Agreements, and any
amendments or modifications thereof, promptly upon the Servicer's execution and
delivery of such instruments.
(c) As part of its servicing activities hereunder, the Servicer
(except as otherwise provided in the last sentence of this paragraph), for the
benefit of the Trustee, shall enforce the obligations of each Subservicer under
the related Subservicing Agreement, including, without limitation, any
obligation to make advances in respect of delinquent payments as required by a
Subservicing Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Subservicing Agreements, and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as the Servicer, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Servicer shall pay the costs of such enforcement at its own expense, and shall
be reimbursed therefor only (i) from a general recovery resulting from such
enforcement, to the extent, if any, that such recovery exceeds all amounts due
in respect of the related Mortgage Loans or (ii) from a specific recovery of
costs, expenses or attorneys' fees against the party against whom such
enforcement is directed.
(d) The Servicer shall cause any Subservicer engaged by the
Servicer (or by any Subservicer) for the benefit of the Depositor and the
Trustee to comply with the provisions of this Section 3.02 and with Sections
3.22, 3.23, 6.02 and 6.05 of this Agreement to the same extent as if such
Subservicer were the Servicer, and to provide the information required with
respect to such Subservicer under Section 8.12(g) of this Agreement. The
Servicer shall be responsible for obtaining from each such Subservicer and
delivering to applicable Persons any servicer compliance statement required to
be delivered by such Subservicer under Section 3.22 and any assessment of
compliance report and related accountant's attestation required to be delivered
by such Subservicer under Section 3.23, in each case as and when required to be
delivered.
(e) Subject to the conditions set forth in this Section 3.02(e),
the Servicer and any Subservicer engaged by the Servicer is permitted to utilize
one or more Subcontractors to perform certain of its obligations hereunder. The
Servicer shall promptly upon request provide to the Depositor a written
description (in form and substance satisfactory to the Depositor) of the role
and function of each Subcontractor utilized by the Servicer or any such
Subservicer, specifying, not later than the date specified for delivery of the
annual report on assessment of compliance set forth in Section 3.23(b) (i) the
identity of each such Subcontractor, if any, that is "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, and (ii)
which elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause (i) of
this paragraph. As a condition to the utilization by the Servicer or any such
Subservicer of any Subcontractor determined to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, the
Servicer shall cause any such Subcontractor used by the Servicer (or by any such
Subservicer) for the benefit of the Depositor and the Trustee to comply with the
provisions of Section 3.23 of this Agreement to the same extent as if such
Subcontractor were the Servicer. The Servicer shall be responsible for obtaining
from each such Subcontractor and delivering to the applicable Persons any
assessment of compliance report and related accountant's attestation required to
be delivered by such Subcontractor under Section 3.23, in each case as and when
required to be delivered.
Notwithstanding the foregoing, if the Servicer engages a
Subcontractor in connection with the performance of any of its duties under this
Agreement, the Servicer shall be responsible for determining whether such
Subcontractor is a "servicer" within the meaning of Item 1101 of Regulation AB
and whether any such affiliate or third-party vendor meets the criteria in Item
1108(a)(2)(i) through (iii) of Regulation AB. If the Servicer determines,
pursuant to the preceding sentence, that such Subcontractor is a "servicer"
within the meaning of Item 1101 of Regulation AB and meets the criteria in Item
1108(a)(2)(i) through (iii) of Regulation AB, then such Subcontractor shall be
deemed to be a Subservicer for purposes of this Agreement, the engagement of
such Subservicer shall not be effective unless and until notice is given
pursuant to Section 3.02(a) and the Servicer shall comply with Section 3.02(d)
with respect thereto.
Section 3.03 Successor Subservicers. The Servicer shall be
entitled to terminate any Subservicing Agreement and the rights and obligations
of any Subservicer pursuant to any Subservicing Agreement in accordance with the
terms and conditions of such Subservicing Agreement; provided, however, that
during the period when reports are required to be filed for the Trust under the
Exchange Act, the termination, resignation or removal of a Subservicer shall be
not be effective until 30 days after written notice is received by both the
Depositor and the Trustee that contains all information reasonably necessary to
enable the Trustee, pursuant to Section 8.12(g), to accurately and timely report
the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such
reports under the Exchange Act are required to be filed under the Exchange Act).
In the event of termination of any Subservicer, all servicing obligations of
such Subservicer shall be assumed simultaneously by the Servicer without any act
or deed on the part of such Subservicer or the Servicer, and the Servicer either
shall service directly the related Mortgage Loans or shall enter into a
Subservicing Agreement with a successor Subservicer which qualifies under
Section 3.02.
Any Subservicing Agreement shall include the provision that such
agreement may be immediately terminated by the Depositor or the Trustee without
fee, in accordance with the terms of this Agreement, in the event that the
Servicer which is a party to the related Subservicing Agreement shall, for any
reason, no longer be the Servicer (including termination due to an Event of
Default).
Section 3.04 Liability of the Servicer. Notwithstanding any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section
3.01 without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering such Mortgage Loans. The
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of the Servicer by such Subservicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
Section 3.05 No Contractual Relationship between Subservicers and
the Trustee. Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
Servicer alone, and the Trustee (or any successor to the Servicer) shall not be
deemed a party thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in Section 3.06.
The Servicer shall be solely liable for all fees owed by it to any Subservicer,
irrespective of whether the Servicer's compensation pursuant to this Agreement
is sufficient to pay such fees.
Section 3.06 Assumption or Termination of Subservicing Agreements
by Trustee. In the event the Servicer or the Xxxxx Fargo Servicer at any time
shall for any reason no longer be the Servicer or the Xxxxx Fargo Servicer
(including by reason of the occurrence of an Event of Default), the Trustee, or
its designee, or the successor Servicer if the successor Servicer is not the
Trustee, shall thereupon assume all of the rights and obligations of the
Servicer or the Xxxxx Fargo Servicer under each Subservicing Agreement that the
Servicer or the Xxxxx Fargo Servicer may have entered into, with copies thereof
provided to the Trustee prior to the Trustee assuming such rights and
obligations, unless the Trustee elects to terminate any Subservicing Agreement
in accordance with its terms as provided in Section 3.03.
Upon such assumption, the Trustee, its designee or the successor
servicer shall be deemed, subject to Section 3.03, to have assumed all of the
interest of the Servicer or the Xxxxx Fargo Servicer, as applicable, therein and
to have replaced the Servicer or the Xxxxx Fargo Servicer as a party to each
Subservicing Agreement to the same extent as if each Subservicing Agreement had
been assigned to the assuming party, except that (i) the Servicer or the Xxxxx
Fargo Servicer shall not thereby be relieved of any liability or obligations
under any Subservicing Agreement that arose before it ceased to be the Servicer
or the Xxxxx Fargo Servicer and (ii) none of the Depositor, the Trustee, their
designees or any successor Servicer shall be deemed to have assumed any
liability or obligation of the Servicer or the Xxxxx Fargo Servicer that arose
before it ceased to be the Servicer or the Xxxxx Fargo Servicer, as applicable.
The Servicer at its expense shall, upon request of the Trustee,
deliver to the assuming party all documents and records relating to each
Subservicing Agreement and the Mortgage Loans then being serviced and an
accounting of amounts collected and held by or on behalf of it, and otherwise
use its best efforts to effect the orderly and efficient transfer of the
Subservicing Agreements to the assuming party.
Section 3.07 Collection of Certain Mortgage Loan Payments. (a) The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable Insurance Policies, follow such collection procedures as it
would follow with respect to mortgage loans comparable to the Mortgage Loans and
held for its own account. Consistent with the foregoing and Accepted Servicing
Practices, the Servicer may (i) waive any late payment charge or, if applicable,
any penalty interest, or (ii) extend the Due Dates for the Scheduled Payments
due on a Mortgage Note for a period of not greater than 180 days; provided, that
any extension pursuant to clause (ii) above shall not affect the amortization
schedule of any Mortgage Loan for purposes of any computation hereunder, except
as provided below. In the event of any such arrangement pursuant to clause (ii)
above, the Servicer shall make timely advances on such Mortgage Loan during such
extension pursuant to Section 4.01 and in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangements, subject to Section 4.01(d) pursuant to which the Servicer shall
not be required to make any such advances that are Nonrecoverable P&I Advances.
Notwithstanding the foregoing, in the event that any Mortgage Loan is in default
or in the judgment of the Servicer, such default is reasonably foreseeable, the
Servicer, consistent with the standards set forth in Section 3.01, may also
waive, modify or vary any term of such Mortgage Loan (including modifications
that would change the Mortgage Interest Rate, forgive the payment of principal
or interest, extend the final maturity date of such Mortgage Loan or waive, in
whole or in part, a Prepayment Premium), accept payment from the related
Mortgagor of an amount less than the Stated Principal Balance in final
satisfaction of such Mortgage Loan, or consent to the postponement of strict
compliance with any such term or otherwise grant indulgence to any Mortgagor
(any and all such waivers, modifications, variances, forgiveness of principal or
interest, postponements, or indulgences collectively referred to herein as
"Forbearance"); provided, however, that the Servicer's approval of a
modification of a Due Date shall not be considered a modification for purposes
of this sentence; provided, further, that the final maturity date of any
Mortgage Loan may not be extended beyond the Final Scheduled Distribution Date
for the LIBOR Certificates. The Servicer's analysis supporting any Forbearance
and the conclusion that any Forbearance meets the standards of Section 3.01
shall be reflected in writing in the Servicing File or on the Servicer's
servicing records. In addition, notwithstanding the foregoing, the Servicer may
also waive (or permit a Subservicer to waive), in whole or in part, a Prepayment
Premium if such waiver would, in the Servicer's judgment, maximize recoveries on
the related Mortgage Loan or if such Prepayment Premium is (i) not permitted to
be collected by applicable law, or the collection of the Prepayment Premium
would be considered "predatory" pursuant to written guidance published by any
applicable federal, state or local regulatory authority having jurisdiction over
such matters, or (ii) the enforceability of such Prepayment Premium is limited
(x) by bankruptcy, insolvency, moratorium, receivership or other similar laws
relating to creditors' rights or (y) due to acceleration in connection with a
foreclosure or other involuntary payment. If a Prepayment Premium is waived
other than as permitted in this Section 3.07(a), then the Servicer is required
to pay the amount of such waived Prepayment Premium, for the benefit of the
Holders of the Class P Certificates, by depositing such amount into the
Collection Account together with and at the time that the amount prepaid on the
related Mortgage Loan is required to be deposited into the Collection Account;
provided, however, that the Servicer shall not have an obligation to pay the
amount of any uncollected Prepayment Premium if the failure to collect such
amount is the direct result of inaccurate or incomplete information on the
Mortgage Loan Schedule in effect at such time.
(b) The Servicer shall give notice to the Trustee, each Rating
Agency and the Depositor of any proposed change of the location of the
Collection Account within a reasonable period of time prior to any change
thereof.
Section 3.08 Subservicing Accounts. In those cases where a
Subservicer is servicing a Mortgage Loan pursuant to a Subservicing Agreement,
the Subservicer will be required to establish and maintain one or more
segregated accounts (collectively, the "Subservicing Account"). The Subservicing
Account shall be an Eligible Account and shall otherwise be acceptable to the
Servicer. The Subservicer shall deposit in the clearing account (which account
must be an Eligible Account) in which it customarily deposits payments and
collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
the Subservicer's receipt thereof, all proceeds of Mortgage Loans received by
the Subservicer less its servicing compensation to the extent permitted by the
Subservicing Agreement, and shall thereafter deposit such amounts in the
Subservicing Account, in no event more than two Business Days after the deposit
of such funds into the clearing account. The Subservicer shall thereafter
deposit such proceeds in the Collection Account of the Servicer or remit such
proceeds to the Servicer for deposit in the Collection Account of the Servicer
not later than two Business Days after the deposit of such amounts in the
Subservicing Account. For purposes of this Agreement, the Servicer shall be
deemed to have received payments on the Mortgage Loans when the Subservicer
receives such payments.
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. (a) The Servicer shall ensure that each of the Mortgage Loans
shall be covered by a paid-in-full, life-of-the-loan tax service contract in
effect with respect to each Mortgage Loan (each, a "Tax Service Contract")
serviced by the Servicer. Each Tax Service Contract shall be assigned to the
Trustee, or its designee, at the Servicer's expense in the event that the
Servicer is terminated as Servicer of the Mortgage Loan.
(b) To the extent that the services described in this paragraph
(b) are not otherwise provided pursuant to the Tax Service Contracts described
in paragraph (a) hereof, the Servicer undertakes to perform such functions with
respect to the Mortgage Loans serviced by the Servicer. To the extent the
related Mortgage Loan provides for Escrow Payments, the Servicer shall establish
and maintain, or cause to be established and maintained, one or more segregated
accounts (the "Escrow Accounts"), which shall be Eligible Accounts. The Servicer
shall deposit in the clearing account (which account must be an Eligible
Account) in which it customarily deposits payments and collections on mortgage
loans in connection with its mortgage loan servicing activities on a daily
basis, and in no event more than one Business Day after the Servicer's receipt
thereof, all collections from the Mortgagors (or related advances from
Subservicers) for the payment of taxes, assessments, hazard insurance premiums
and comparable items for the account of the Mortgagors ("Escrow Payments")
collected on account of the Mortgage Loans and shall thereafter deposit such
Escrow Payments in the Escrow Accounts, in no event more than two Business Days
after the deposit of such funds in the clearing account, for the purpose of
effecting the payment of any such items as required under the terms of this
Agreement. Withdrawals of amounts from an Escrow Account may be made only to (i)
effect payment of taxes, assessments, fire and hazard insurance premiums,
condominium charges and comparable items; (ii) reimburse the Servicer (or a
Subservicer to the extent provided in the related Subservicing Agreement) out of
related collections for any advances made pursuant to Section 3.01(b) (with
respect to taxes and assessments) and Section 3.13(a) (with respect to hazard
insurance); (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) apply to the restoration or repair of the Mortgaged Property in
accordance with Section 3.13(a); (v) transfer to the Collection Account and
application to reduce the principal balance of the Mortgage Loan in accordance
with the terms of the related Mortgage and Mortgage Note; (vi) pay interest to
the Servicer and, if required and as described below, to Mortgagors on balances
in the Escrow Account; (vii) clear and terminate the Escrow Account at the
termination of the Servicer's obligations and responsibilities in respect of the
related Mortgage Loans under this Agreement; or (viii) recover amounts deposited
in error or for which amounts previously deposited are returned due to a "not
sufficient funds" or other denial of payment by the related Mortgagor's banking
institution. As part of its servicing duties, the Servicer or Subservicers shall
pay to the Mortgagors interest on funds in Escrow Accounts, to the extent
required by law and, to the extent that interest earned on funds in the Escrow
Accounts is insufficient, to pay such interest from its or their own funds,
without any reimbursement therefor. To the extent that a Mortgage Loan does not
provide for Escrow Payments, the Servicer shall use commercially reasonable
efforts consistent with Accepted Servicing Practices to determine whether any
such payments are made by the Mortgagor in a manner and at a time that avoids
the loss of the Mortgaged Property due to a tax sale or the foreclosure as a
result of a tax lien. The Servicer assumes full responsibility for the payment
of all such bills within such time and shall effect payments of all such bills
irrespective of the Mortgagor's faithful performance in the payment of same or
the making of the Escrow Payments and shall make advances from its own funds to
effect such payments; provided, however, that such advances are deemed to be
Servicing Advances.
Section 3.10 Collection Accounts. (a) On behalf of the Trustee,
the Servicer shall establish and maintain, or cause to be established and
maintained, one or more segregated Eligible Accounts (each such account or
accounts, a "Collection Account"), held in trust for the benefit of the Trustee.
Funds in the Collection Account shall not be commingled with any other funds of
the Servicer. On behalf of the Trustee, the Servicer shall deposit or cause to
be deposited in the clearing account (which account must be an Eligible Account)
in which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and in
no event more than one Business Day after the Servicer's receipt thereof, and
shall thereafter deposit in the Collection Account, in no event more than two
Business Days after the deposit of such funds into the clearing account, as and
when received or as otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date (other than in
respect of principal or interest on the related Mortgage Loans due on or before
the Cut-off Date), or payments (other than Principal Prepayments) received by it
on or prior to the Cut-off Date but allocable to a Due Period subsequent
thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (net of the related
Servicing Fee) on each Mortgage Loan;
(iii) all Insurance Proceeds and Condemnation Proceeds (to the
extent such Insurance Proceeds and Condemnation Proceeds are not to be
applied to the restoration of the related Mortgaged Property or released
to the related Mortgagor in accordance with the express requirements of
law or in accordance with Accepted Servicing Practices) and all
Liquidation Proceeds;
(iv) any amounts required to be deposited pursuant to Section
3.12(b) in connection with any losses realized on Permitted Investments
with respect to funds held in the Collection Account;
(v) any amounts required to be deposited by the Servicer pursuant
to the second paragraph of Section 3.13(a) in respect of any blanket
policy deductibles;
(vi) all proceeds of any Mortgage Loan repurchased or purchased in
accordance with this Agreement and any Substitution Adjustment Amount;
and
(vii) all Prepayment Premiums collected by the Servicer or
required to be paid by the Servicer pursuant to Section 3.07.
The foregoing requirements for deposit in the Collection Accounts
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges, NSF
fees, reconveyance fees, assumption fees and other similar fees and charges need
not be deposited by the Servicer in the Collection Account and shall, upon
collection, belong to the Servicer as additional compensation for its servicing
activities. In the event the Servicer shall deposit in the Collection Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from the Collection Account, any provision herein to the contrary
notwithstanding.
(b) Funds in the Collection Accounts may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12. The
Servicer shall give notice to the Trustee and the Depositor of the location of
the Collection Account maintained by it when established and prior to any change
thereof.
Section 3.11 Withdrawals from the Collection Account. (a) The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in Section 4.01:
(i) on or prior to the Remittance Date, to remit to the Trustee
(A) the Trustee Fee with respect to such Distribution Date and (B) all
Available Funds in respect of the related Distribution Date together with
all amounts representing Prepayment Premiums from the Mortgage Loans
received during the related Prepayment Period;
(ii) to reimburse the Servicer for P&I Advances, but only to the
extent of amounts received which represent Late Collections (net of the
related Servicing Fees) of Scheduled Payments on Mortgage Loans with
respect to which such P&I Advances were made in accordance with the
provisions of Section 4.01;
(iii) to pay the Servicer or any Subservicer (A) any unpaid
Servicing Fees or (B) any unreimbursed Servicing Advances with respect to
each Mortgage Loan serviced by the Servicer, but in each case only to the
extent of any Late Collections, Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds or other amounts as may be collected by the
Servicer from a Mortgagor, or otherwise received with respect to such
Mortgage Loan (or the related REO Property);
(iv) to pay to the Servicer as servicing compensation (in addition
to the Servicing Fee) on the Remittance Date any interest or investment
income earned on funds deposited in the Collection Account;
(v) to pay the Sponsor, the Depositor or the Responsible Party, as
applicable, with respect to each Mortgage Loan that has previously been
repurchased or replaced pursuant to this Agreement all amounts received
thereon subsequent to the date of purchase or substitution, as the case
may be;
(vi) to reimburse the Servicer for (A) any P&I Advance or
Servicing Advance previously made which the Servicer has determined to be
a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance in
accordance with the provisions of Section 4.01 and (B) any unpaid
Servicing Fees to the extent not recoverable from Liquidation Proceeds,
Insurance Proceeds or other amounts received with respect to the related
Mortgage Loan under Section 3.11(a)(iii);
(vii) to pay to the Servicer any unpaid Servicing Fees upon
termination of the obligations of the Servicer;
(viii) to pay, or to reimburse the Servicer for advances in
respect of, expenses incurred in connection with any Mortgage Loan
serviced by the Servicer pursuant to Section 3.15;
(ix) to reimburse the Servicer, the Depositor or the Trustee for
expenses incurred by or reimbursable to the Servicer, the Depositor or
the Trustee, as the case may be, pursuant to Section 6.03, Section 7.02
or Section 8.05;
(x) to reimburse the Servicer or the Trustee, as the case may be,
for expenses reasonably incurred in respect of the breach or defect
giving rise to the repurchase obligation as described in Section 2.03 of
this Agreement that were included in the Repurchase Price of the Mortgage
Loan, including any expenses arising out of the enforcement of the
repurchase obligation, to the extent not otherwise paid pursuant to the
terms hereof;
(xi) to withdraw any amounts deposited in the Collection Account
in error or for which amounts previously deposited are returned due to a
"not sufficient funds" or other denial of payment by the related
Mortgagor's banking institution;
(xii) to withdraw any amounts held in the Collection Account and
not required to be remitted to the Trustee on the Remittance Date
occurring in the month in which such amounts are deposited into the
Collection Account, to reimburse the Servicer for xxxxxxxxxxxx X&X
Advances;
(xiii) to invest funds in Permitted Investments in accordance with
Section 3.12;
(xiv) to recover any amounts deposited in error; and
(xv) to clear and terminate the Collection Account upon
termination of this Agreement.
To the extent that the Servicer does not timely make the
remittance referred to in clause (i) above, the Servicer shall pay the Trustee
for the account of the Trustee interest on any amount not timely remitted at the
prime rate, from and including the applicable Remittance Date to but excluding
the date such remittance is actually made.
(b) The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account, to the extent held by or on behalf of
it, pursuant to subclauses (a)(ii), (iii), (iv), (v), (vi), (viii), (ix) and (x)
above. The Servicer shall provide written notification to the Depositor, on or
prior to the next succeeding Remittance Date, upon making any withdrawals from
the Collection Account pursuant to subclause (a)(vi) above.
Section 3.12 Investment of Funds in the Collection Accounts and
the Distribution Account (a) The Servicer may invest the funds in the Collection
Account and the Trustee may invest funds in the Distribution Account during the
Trustee Float Period, and shall (except during the Trustee Float Period), invest
such funds in the Distribution Account at the direction of the Depositor (for
purposes of this Section 3.12, each of the Collection Accounts and the
Distribution Accounts are referred to as an "Investment Account"), in one or
more Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day on which such funds are
required to be withdrawn from such account pursuant to this Agreement (except
for investments made at the Depositor's direction, which shall mature no later
than the Business Day immediately preceding the date of required withdrawal).
All such Permitted Investments shall be held to maturity, unless payable on
demand. Any investment of funds in an Investment Account shall be made in the
name of the Trustee. The Trustee shall be entitled to sole possession (except
with respect to investment direction of funds held in the related Account and
any income and gain realized thereon in any Account other than the Distribution
Account during the Trustee Float Period) over each such investment, and any
certificate or other instrument evidencing any such investment shall be
delivered directly to the Trustee or its agent, together with any document of
transfer necessary to transfer title to such investment to the Trustee. In the
event amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Trustee may:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the
last day such Permitted Investment may otherwise mature
hereunder in an amount equal to the lesser of (1) all
amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in
the Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Collection Account and Escrow Account held by or on behalf of
the Servicer, shall be for the benefit of the Servicer and shall be subject to
its withdrawal in the manner set forth in Section 3.11. Any other benefit
derived from the Collection Account and Escrow Account associated with the
receipt, disbursement and accumulation of principal, interest, taxes, hazard
insurance, mortgage blanket insurance, and like sources, shall accrue to the
benefit of the Servicer, except that the Servicer shall not realize any economic
benefit from any forced charging of services except as permitted by applicable
law. The Servicer shall deposit in the Collection Account and Escrow Account the
amount of any loss of principal incurred in respect of any such Permitted
Investment made with funds in such accounts immediately upon realization of such
loss.
(c) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Trustee, shall be for the
benefit of the Depositor (except for any income or gain realized from the
investment of funds on deposit in the Distribution Account during the Trustee
Float Period, which shall be for the benefit of the Trustee). The Depositor
shall deposit in the Distribution Account (except with respect to the Trustee
Float Period, in which case the Trustee shall so deposit) the amount of any loss
of principal incurred in respect of any such Permitted Investment made with
funds in such accounts immediately upon realization of such loss.
(d) Except as otherwise expressly provided in this Agreement, if
any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Trustee shall take such action as may be appropriate
to enforce such payment or performance, including the institution and
prosecution of appropriate proceedings.
(e) The Trustee or its Affiliates are permitted to receive
additional compensation that could be deemed to be in the Trustee's economic
self-interest for (i) serving as investment adviser, administrator, shareholder
or servicing agent with respect to certain of the Permitted Investments, (ii)
using Affiliates to effect transactions in certain Permitted Investments and
(iii) effecting transactions in certain Permitted Investments.
(f) The Trustee shall not be liable for the amount of any loss
incurred with respect of any investment (except that during the Trustee Float
Period, it will be responsible for reimbursing the Trust for such loss) or lack
of investment of funds held in any Investment Account or the Distribution
Account if made in accordance with this Section 3.12.
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions
and Fidelity Coverage (a) The Servicer shall cause to be maintained for each
Mortgage Loan serviced by the Servicer fire insurance with extended coverage on
the related Mortgaged Property in an amount which is at least equal to the least
of (i) the outstanding principal balance of such Mortgage Loan, (ii) the amount
necessary to fully compensate for any damage or loss to the improvements that
are a part of such property on a replacement cost basis, (iii) the maximum
insurable value of the improvements which are a part of such Mortgaged Property,
and (iv) the amount determined by applicable federal or state law, in each case
in an amount not less than such amount as is necessary to avoid the application
of any coinsurance clause contained in the related hazard insurance policy. The
Servicer shall also cause to be maintained fire insurance with extended coverage
on each REO Property serviced by the Servicer in an amount which is at least
equal to the lesser of (i) the maximum insurable value of the improvements which
are a part of such property and (ii) the outstanding principal balance of the
related Mortgage Loan at the time it became an REO Property, plus accrued
interest at the Mortgage Interest Rate and related Servicing Advances. The
Servicer will comply in the performance of this Agreement with all reasonable
rules and requirements of each insurer under any such hazard policies. Any
amounts to be collected by the Servicer under any such policies (other than
amounts to be applied to the restoration or repair of the property subject to
the related Mortgage or amounts to be released to the Mortgagor in accordance
with the procedures that the Servicer would follow in servicing loans held for
its own account, subject to the terms and conditions of the related Mortgage and
Mortgage Note) shall be deposited in the Collection Account, subject to
withdrawal pursuant to Section 3.11. If the Mortgagor fails to provide Mortgage
Loan hazard insurance coverage after thirty (30) days of the Servicer's written
notification, the Servicer shall put in place such hazard insurance coverage on
the Mortgagor's behalf. Any out-of-pocket expense or advance made by the
Servicer on such force placed hazard insurance coverage shall be deemed a
Servicing Advance. Any cost incurred by the Servicer in maintaining any such
insurance shall not, for the purpose of calculating distributions to the
Trustee, be added to the unpaid principal balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit. It is understood
and agreed that no earthquake or other additional insurance is to be required of
any Mortgagor other than pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance. If
the Mortgaged Property or REO Property is at any time in an area identified in
the Federal Register by the Federal Emergency Management Agency as having
special flood hazards and flood insurance has been made available, the Servicer
will cause to be maintained a flood insurance policy in respect thereof. Such
flood insurance shall be in an amount equal to the lesser of (i) the minimum
amount required, under the terms of coverage, to compensate for any damage or
loss on a replacement cost basis (or the unpaid principal balance of the related
Mortgage Loan if replacement cost coverage is not available for the type of
building insured) and (ii) the maximum amount of insurance which is available
under the Flood Disaster Protection Act of 1973, as amended. If at any time
during the term of the Mortgage Loan, the Servicer determines in accordance with
applicable law and pursuant to the Federal Emergency Management Agency Guides
that a Mortgaged Property is located in a special flood hazard area and is not
covered by flood insurance or is covered in an amount less than the amount
required by the Flood Disaster Protection Act of 1973, as amended, the Servicer
shall notify the related Mortgagor to obtain such flood insurance coverage, and
if said Mortgagor fails to obtain the required flood insurance coverage within
forty-five (45) days after such notification, the Servicer shall immediately
force place the required flood insurance on the Mortgagor's behalf. Any
out-of-pocket expense or advance made by the Servicer on such force placed flood
insurance coverage shall be deemed a Servicing Advance.
In the event that the Servicer shall obtain and maintain a blanket
policy with an insurer either (i) acceptable to Xxxxxx Xxx or Xxxxxxx Mac, or
(ii) having a General Policy Rating of A:12 or better in Best's (or such other
rating that is comparable to such rating) insuring against hazard losses on all
of the Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first two sentences of this Section 3.13, it
being understood and agreed that such policy may contain a deductible clause, in
which case the Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property a policy complying
with the first two sentences of this Section 3.13, and there shall have been one
or more losses which would have been covered by such policy, deposit to the
Collection Account from its own funds the amount not otherwise payable under the
blanket policy because of such deductible clause. In connection with its
activities as administrator and servicer of the Mortgage Loans, the Servicer
agrees to prepare and present, on behalf of itself, the Trustee claims under any
such blanket policy in a timely fashion in accordance with the terms of such
policy.
(b) The Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of the Servicer's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of Xxxxxx Mae or Xxxxxxx Mac if it were the purchaser of the
Mortgage Loans, unless the Servicer has obtained a waiver of such requirements
from Xxxxxx Mae or Xxxxxxx Mac. The Servicer shall also maintain a fidelity bond
in the form and amount that would meet the requirements of Xxxxxx Mae or Xxxxxxx
Mac, unless the Servicer has obtained a waiver of such requirements from Xxxxxx
Mae or Xxxxxxx Mac. The Servicer shall provide the Trustee upon request with
copies of any such insurance policies and fidelity bond. The Servicer shall be
deemed to have complied with this provision if an Affiliate of the Servicer has
such errors and omissions and fidelity bond coverage and, by the terms of such
insurance policy or fidelity bond, the coverage afforded thereunder extends to
the Servicer. Any such errors and omissions policy and fidelity bond shall by
its terms not be cancelable without thirty days' prior written notice to the
Trustee. The Servicer shall also cause each Subservicer to maintain a policy of
insurance covering errors and omissions and a fidelity bond which would meet
such requirements.
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption
Agreements. The Servicer will, to the extent it has knowledge of any conveyance
or prospective conveyance of any Mortgaged Property by any Mortgagor (whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the Mortgage),
exercise its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause, if any, applicable thereto; provided, however, that the
Servicer shall not be required to take such action if, in its sole business
judgment, the Servicer believes it is not in the best interests of the Trust
Fund and shall not exercise any such rights if prohibited by law from doing so.
If the Servicer reasonably believes it is unable under applicable law to enforce
such "due-on-sale" clause or if any of the other conditions set forth in the
proviso to the preceding sentence apply, the Servicer will enter into an
assumption and modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant to which such
person becomes liable under the Mortgage Note, and, to the extent permitted by
applicable state law, the Mortgagor remains liable thereon. The Servicer is also
authorized to enter into a substitution of liability agreement with such person,
pursuant to which the original Mortgagor is released from liability and such
person is substituted as the Mortgagor and becomes liable under the Mortgage
Note; provided, that no such substitution shall be effective unless such person
satisfies the underwriting criteria of the Servicer and such substitution is in
the best interest of the Certificateholders as determined by the Servicer. In
connection with any assumption, modification or substitution, the Servicer shall
apply such underwriting standards and follow such practices and procedures as
shall be normal and usual in its general mortgage servicing activities and as it
applies to other mortgage loans owned solely by it. The Servicer shall not take
or enter into any assumption and modification agreement, however, unless (to the
extent practicable in the circumstances) it shall have received confirmation, in
writing, of the continued effectiveness of any applicable hazard insurance
policy, or a new policy meeting the requirements of this Section is obtained.
Any fee collected by the Servicer in respect of an assumption or substitution of
liability agreement will be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Interest Rate
and the amount of the Scheduled Payment) may be amended or modified, except as
otherwise required pursuant to the terms thereof. The Servicer shall notify the
Trustee that any such substitution, modification or assumption agreement has
been completed by forwarding to the Trustee the executed original of such
substitution or assumption agreement, which document shall be added to the
related Mortgage File and shall, for all purposes, be considered a part of such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, the Servicer shall not be deemed to be in default, breach or any
other violation of its obligations hereunder by reason of any assumption of a
Mortgage Loan by operation of law or by the terms of the Mortgage Note or any
assumption which the Servicer may be restricted by law from preventing, for any
reason whatsoever. For purposes of this Section 3.14, the term "assumption" is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section 3.15 Realization upon Defaulted Mortgage Loans. The
Servicer shall use its best efforts, consistent with Accepted Servicing
Practices, to foreclose upon or otherwise comparably convert (which may include
an acquisition of REO Property) the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07, and which are not released from this Agreement
pursuant to any other provision hereof. The Servicer shall use reasonable
efforts to realize upon such defaulted Mortgage Loans in such manner as will
maximize the receipt of principal and interest by the Trustee, taking into
account, among other things, the timing of foreclosure proceedings. The
foregoing is subject to the provisions that, in any case in which a Mortgaged
Property shall have suffered damage from an uninsured cause, the Servicer shall
not be required to expend its own funds toward the restoration of such property
unless it shall determine in its sole discretion (i) that such restoration will
increase the net proceeds of liquidation of the related Mortgage Loan to the
Trustee, after reimbursement to itself for such expenses, and (ii) that such
expenses will be recoverable by the Servicer through Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds from the related Mortgaged
Property, as contemplated in Section 3.11. The Servicer shall be responsible for
all other costs and expenses incurred by it in any such proceedings; provided,
however, that it shall be entitled to reimbursement thereof from the related
property, as contemplated in Section 3.11.
The proceeds of any Liquidation Event or REO Disposition, as well
as any recovery resulting from a partial collection of Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds or any income from an REO
Property, will be applied in the following order of priority: first, to
reimburse the Servicer or any Subservicer for any related unreimbursed Servicing
Advances, pursuant to Section 3.11 or 3.17; second, to reimburse the Servicer
for any related xxxxxxxxxxxx X&X Advances, pursuant to Section 3.11; third, to
accrued and unpaid interest on the Mortgage Loan or REO Imputed Interest, at the
Mortgage Interest Rate, to the date of the liquidation or REO Disposition, or to
the Due Date prior to the Remittance Date on which such amounts are to be
distributed if not in connection with a Liquidation Event or REO Disposition;
and fourth, as a recovery of principal of the Mortgage Loan. If the amount of
the recovery so allocated to interest is less than a full recovery thereof, that
amount will be allocated as follows: first, to unpaid Servicing Fees; and
second, as interest at the Mortgage Interest Rate (net of the Servicing Fee
Rate). The portion of the recovery so allocated to unpaid Servicing Fees shall
be reimbursed to the Servicer or any Subservicer pursuant to Section 3.11 or
3.17. The portions of the recovery so allocated to interest at the Mortgage
Interest Rate (net of the Servicing Fee Rate) and to principal of the Mortgage
Loan shall be applied as follows: first, to reimburse the Servicer or any
Subservicer for any related unreimbursed Servicing Advances in accordance with
Section 3.11 or 3.17, and second, to the Trustee in accordance with the
provisions of Section 4.02, subject to the last paragraph of Section 3.17 with
respect to certain excess recoveries from an REO Disposition.
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event the Servicer has received actual notice of, or has actual knowledge of
the presence of, hazardous or toxic substances or wastes on the related
Mortgaged Property, or if the Trustee otherwise requests, the Servicer shall
cause an environmental inspection or review of such Mortgaged Property to be
conducted by a qualified inspector. Upon completion of the inspection, the
Servicer shall promptly provide the Trustee and the Depositor, with a written
report of the environmental inspection.
After reviewing the environmental inspection report, the Servicer
shall determine consistent with Accepted Servicing Practices how to proceed with
respect to the Mortgaged Property. In the event (a) the environmental inspection
report indicates that the Mortgaged Property is contaminated by hazardous or
toxic substances or wastes and (b) the Servicer determines, consistent with
Accepted Servicing Practices, to proceed with foreclosure or acceptance of a
deed in lieu of foreclosure, the Servicer shall be reimbursed for all reasonable
costs associated with such foreclosure or acceptance of a deed in lieu of
foreclosure and any related environmental clean-up costs, as applicable, from
the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Servicer, the Servicer shall be entitled to
be reimbursed from amounts in the Collection Account pursuant to Section 3.11.
In the event the Servicer determines not to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Servicer shall be reimbursed
from general collections for all Servicing Advances made with respect to the
related Mortgaged Property from the Collection Account pursuant to Section 3.11.
The Trustee shall not be responsible for any determination made by the Servicer
pursuant to this paragraph or otherwise.
Section 3.16 Release of Mortgage Files. (a) Upon the payment in
full of any Mortgage Loan, or the receipt by the Servicer of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer will, within five (5) Business Days of the payment in full, notify the
Trustee by a certification (which certification shall include a statement to the
effect that all amounts received or to be received in connection with such
payment which are required to be deposited in the Collection Account pursuant to
Section 3.10 have been or will be so deposited) of a Servicing Officer and shall
request delivery to it of the Custodial File by completing a Request for Release
to the Trustee. Upon receipt of such certification and Request for Release, the
Trustee shall promptly release the related Custodial File to the Servicer within
three (3) Business Days. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Collection
Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan, including, for this purpose, collection under
any insurance policy relating to the Mortgage Loans, the Trustee shall, upon
request of the Servicer and delivery to the Trustee of a Request for Release,
release the related Custodial File to the Servicer, and the Trustee shall, at
the direction of the Servicer, execute such documents provided to it as shall be
necessary to the prosecution of any such proceedings and the Servicer shall
retain the Mortgage File in trust for the benefit of the Trustee. Such Request
for Release shall obligate the Servicer to return each and every document
previously requested from the Custodial File to the Trustee when the need
therefor by the Servicer no longer exists, unless the Mortgage Loan has been
liquidated and the Liquidation Proceeds relating to the Mortgage Loan have been
deposited in the Collection Account or the Mortgage File or such document has
been delivered to an attorney, or to a public trustee or other public official
as required by law, for purposes of initiating or pursuing legal action or other
proceedings for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the Servicer has delivered to the Trustee a certificate of a
Servicing Officer certifying as to the name and address of the Person to which
such Mortgage File or such document was delivered and the purpose or purposes of
such delivery. Upon receipt of a certificate of a Servicing Officer stating that
such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the Collection Account have been so deposited, or that such Mortgage Loan
has become an REO Property, a copy of the Request for Release shall be released
by the Trustee to the Servicer or its designee. Upon receipt of a Request for
Release under this Section 3.16, the Trustee shall deliver the related Custodial
File to the requesting Servicer by regular mail, unless the Servicer requests
that the Trustee deliver such Custodial File to the Servicer by overnight
courier (in which case such delivery shall be at the Servicer's expense);
provided, however, that in the event the Servicer has not previously received
copies of the relevant Mortgage Loan Documents necessary to service the related
Mortgage Loan in accordance with Accepted Servicing Practices, the Depositor
shall use reasonable efforts to cause the Responsible Party to reimburse the
Servicer for any overnight courier charges incurred for the requested Custodial
Files.
Upon written certification of a Servicing Officer, the Trustee
shall execute and deliver to the Servicer copies of any court pleadings,
requests for trustee's sale or other documents reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity, or shall execute and deliver to the Servicer a power of attorney
sufficient to authorize the Servicer to execute such documents on its behalf.
Each such certification shall include a request that such pleadings or documents
be executed by the Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
Section 3.17 Title, Conservation and Disposition of REO Property.
(a) This Section shall apply only to REO Properties acquired for the account of
the Trustee and shall not apply to any REO Property relating to a Mortgage Loan
which was purchased or repurchased from the Trustee pursuant to any provision
hereof. In the event that title to any such REO Property is acquired, the
Servicer shall cause the deed or certificate of sale to be issued in the name of
the Trustee, on behalf of the Certificateholders, or the Trustee's nominee.
(b) The Servicer shall manage, conserve, protect and operate each
REO Property for the Trustee solely for the purpose of its prompt disposition
and sale. The Servicer, either itself or through an agent selected by the
Servicer, shall manage, conserve, protect and operate the REO Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property in
the same locality as the REO Property is managed. The Servicer shall attempt to
sell the same (and may temporarily rent the same for a period not greater than
one year, except as otherwise provided below) on such terms and conditions as
the Servicer deems to be in the best interest of the Trustee. The Servicer shall
notify the Trustee from time to time as to the status of each REO Property.
(c) The Servicer shall use Accepted Servicing Practices, to
dispose of the REO Property as soon as possible and shall sell such REO Property
in any event within three years after title has been taken to such REO Property,
unless the Servicer determines, and gives an appropriate notice to the Trustee
to such effect, that a longer period is necessary for the orderly liquidation of
such REO Property, so long as such extended period is within the time period
specified in Section 3.17(h). Subject to Section 3.17(h), if a period longer
than three years is permitted under the foregoing sentence and is necessary to
sell any REO Property, the Servicer shall report monthly to the Trustee as to
the progress being made in selling such REO Property. The Trustee has no
obligation with respect to REO Dispositions.
(d) The Servicer shall segregate and hold all funds collected and
received in connection with the operation of any REO Property separate and apart
from its own funds and general assets and shall deposit such funds in the
Collection Account.
(e) The Servicer shall deposit net of reimbursement to the
Servicer for any related outstanding Servicing Advances and unpaid Servicing
Fees provided in Section 3.11, or cause to be deposited, on a daily basis in the
Collection Account all revenues received with respect to the related REO
Property and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property.
(f) The Servicer, upon an REO Disposition, shall be entitled to
reimbursement for any related unreimbursed Servicing Advances as well as any
unpaid Servicing Fees from proceeds received in connection with the REO
Disposition, as further provided in Section 3.11.
(g) Any net proceeds from an REO Disposition which are in excess
of the unpaid principal balance of the related Mortgage Loan plus all unpaid REO
Imputed Interest thereon through the date of the REO Disposition shall be
retained by the Servicer as additional servicing compensation.
(h) The Servicer shall use Accepted Servicing Practices, to sell,
or cause the Subservicer to sell, in accordance with Accepted Servicing
Practices, any REO Property as soon as possible, but in no event later than the
conclusion of the third calendar year beginning after the year of its
acquisition by the REMIC unless (i) the Servicer applies for an extension of
such period from the Internal Revenue Service pursuant to the REMIC Provisions
and Code Section 856(e)(3), in which event such REO Property shall be sold
within the applicable extension period pursuant to the requirements of Section
3.17(c), or (ii) the Servicer obtains for the Trustee an Opinion of Counsel,
addressed to the Depositor, the Trustee and the Servicer, to the effect that the
holding by the Pooling-Tier REMIC-1 of such REO Property subsequent to such
period will not result in the imposition of taxes on "prohibited transactions"
as defined in Section 860F of the Code or cause any Trust REMIC to fail to
qualify as a REMIC under the REMIC Provisions or comparable provisions of
relevant state laws at any time. The Servicer shall manage, conserve, protect
and operate each REO Property serviced by the Servicer for the Trustee solely
for the purpose of its prompt disposition and sale in a manner which does not
cause such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) or result in the receipt by the Pooling-Tier
REMIC-1 of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or any "net income from foreclosure property" which is
subject to taxation under Section 860G(a)(1) of the Code. Pursuant to its
efforts to sell such REO Property, the Servicer shall either itself or through
an agent selected by the Servicer protect and conserve such REO Property in the
same manner and to such extent as is customary in the locality where such REO
Property is located and may, incident to its conservation and protection of the
interests of the Trustee on behalf of the Certificateholders, rent the same, or
any part thereof, as the Servicer deems to be in the best interest of the
Trustee on behalf of the Certificateholders for the period prior to the sale of
such REO Property; provided, however, that any rent received or accrued with
respect to such REO Property qualifies as "rents from real property" as defined
in Section 856(d) of the Code.
Section 3.18 Notification of Adjustments. With respect to each
Adjustable Rate Mortgage Loan, the Servicer shall adjust the Mortgage Interest
Rate on the related Adjustment Date and shall adjust the Scheduled Payment on
the related mortgage payment adjustment date, if applicable, in compliance with
the requirements of applicable law and the related Mortgage and Mortgage Note.
In the event that an Index becomes unavailable or otherwise unpublished, the
Servicer shall select a comparable alternative index over which it has no direct
control and which is readily verifiable. The Servicer shall execute and deliver
any and all necessary notices required under applicable law and the terms of the
related Mortgage Note and Mortgage regarding the Mortgage Interest Rate and
Scheduled Payment adjustments. The Servicer shall promptly, upon written request
therefor, deliver to the Trustee such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate and
implement such adjustments. Upon the discovery by the Servicer or the receipt of
notice from the Trustee that the Servicer has failed to adjust a Mortgage
Interest Rate or Scheduled Payment in accordance with the terms of the related
Mortgage Note, the Servicer shall deposit in the Collection Account from its own
funds the amount of any interest loss caused as such interest loss occurs.
Section 3.19 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The Servicer shall provide, or cause the
applicable Subservicer to provide, to the Depositor, the Trustee, the OTS or the
FDIC and the examiners and supervisory agents thereof, access to the
documentation regarding the Mortgage Loans in its possession required by
applicable regulations of the OTS. Such access shall be afforded without charge,
but only upon 15 days' (or, if an Event of Default has occurred and is
continuing, 3 Business Days') prior written request and during normal business
hours at the offices of the Servicer or any Subservicer. Nothing in this Section
shall derogate from the obligation of any such party to observe any applicable
law prohibiting disclosure of information regarding the Mortgagors and the
failure of any such party to provide access as provided in this Section as a
result of such obligation shall not constitute a breach of this Section.
Nothing in this Section 3.19 shall require the Servicer to
collect, create, collate or otherwise generate any information that it does not
generate in its usual course of business. The Servicer shall not be required to
make copies of or to ship documents to any Person who is not a party to this
Agreement, and then only if provisions have been made for the reimbursement of
the costs thereof.
Section 3.20 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Trustee. The Servicer shall account fully to the
Trustee for any funds received by the Servicer or which otherwise are collected
by the Servicer as Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan serviced by the Servicer. All Mortgage
Files and funds collected or held by, or under the control of, the Servicer in
respect of any Mortgage Loans, whether from the collection of principal and
interest payments or from Liquidation Proceeds, including, but not limited to,
any funds on deposit in the Collection Account, shall be held by the Servicer
for and on behalf of the Trustee and shall be and remain the sole and exclusive
property of the Trustee, subject to the applicable provisions of this Agreement.
The Servicer also agrees that it shall not create, incur or subject any Mortgage
File or any funds that are deposited in the Collection Account, the Distribution
Account or any Escrow Account, or any funds that otherwise are or may become due
or payable to the Trustee for the benefit of the Certificateholders, to any
claim, lien, security interest, judgment, levy, writ of attachment or other
encumbrance, or assert by legal action or otherwise any claim or right of setoff
against any Mortgage File or any funds collected on, or in connection with, a
Mortgage Loan, except, however, that the Servicer shall be entitled to set off
against and deduct from any such funds any amounts that are properly due and
payable to the Servicer under this Agreement.
Section 3.21 Servicing Compensation. (a) As compensation for its
activities hereunder, the Servicer shall, with respect to each Mortgage Loan, be
entitled to retain from deposits to the Collection Account and from Liquidation
Proceeds, Insurance Proceeds, and Condemnation Proceeds related to such Mortgage
Loan, the Servicing Fee with respect to each Mortgage Loan (less any portion of
such amounts retained by any Subservicer). In addition, the Servicer shall be
entitled to recover unpaid Servicing Fees out of related Late Collections and as
otherwise permitted in Section 3.11. The right to receive the Servicing Fee may
not be transferred in whole or in part except as provided in Section 10.07 or in
connection with the transfer of all of the Servicer's responsibilities and
obligations under this Agreement; provided, however, that the Servicer may pay
from the Servicing Fee any amounts due to a Subservicer pursuant to a
Subservicing Agreement entered into under Section 3.02.
(b) Additional servicing compensation in the form of assumption or
modification fees, late payment charges, NSF fees, reconveyance fees and other
similar fees and charges (other than Prepayment Premiums) shall be retained by
the Servicer only to the extent such fees or charges are received by the
Servicer. The Servicer shall also be entitled pursuant to Section 3.09(b)(vi)
and Section 3.11(a)(iv) to withdraw from the Collection Account, as additional
servicing compensation, interest or other income earned on deposits therein.
(c) The Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder (including payment of
premiums for any blanket policy insuring against hazard losses pursuant to
Section 3.13, servicing compensation of the Subservicer to the extent not
retained by it and the fees and expenses of independent accountants and any
agents appointed by the Servicer), and shall not be entitled to reimbursement
therefor except as specifically provided in Section 3.11.
Section 3.22 Annual Statement as to Compliance. The Servicer shall
deliver or cause to be delivered, and shall cause each Subservicer engaged by
the Servicer to deliver or cause to be delivered to the Depositor, the Rating
Agencies and the Trustee on or before March 15th of each calendar year,
commencing in 2007, an Officer's Certificate stating, as to each signatory
thereof, that (i) a review of the activities of the Servicer or Subservicer, as
applicable, during the preceding calendar year and of its performance under this
Agreement, or the applicable Subservicing Agreement, as the case may be, has
been made under such officers' supervision, and (ii) to the best of such
officers' knowledge, based on such review, the Servicer or Subservicer, as
applicable, has fulfilled all of its obligations under this Agreement or the
applicable Subservicing Agreement, as the case may be, in all material respects
throughout such year, or, if there has been a failure to fulfill any such
obligation in any material respect, specifying each such failure known to such
officers and the nature and status thereof. Promptly after receipt of each such
Officer's Certificate, the Depositor shall review such Officer's Certificate
and, if applicable, consult with the Servicer as to the nature of any defaults
by the Servicer or any related Subservicer in the fulfillment of any of the
Servicer's or Subservicer's obligations. The obligations of the Servicer or
Subservicer under this Section apply to each Servicer and Subservicer that
serviced a Mortgage Loan during the applicable period, whether or not the
Servicer or Subservicer is acting as the Servicer or Subservicer, as applicable,
at the time such Officer's Certificate is required to be delivered.
Section 3.23 Annual Reports on Assessment of Compliance with
Servicing Criteria; Annual Independent Public Accountants' Attestation Report(a)
(a) Not later than March 15th of each calendar year commencing in 2007, the
Servicer and the Trustee each shall deliver, and the Servicer shall cause each
Subservicer engaged by the Servicer and the Servicer and the Trustee shall cause
each Subcontractor utilized by the Servicer (or by any such Subservicer) or the
Trustee, as applicable, and determined by the Servicer or the Trustee, as
applicable, pursuant to Section 3.02(e) to be "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB (in each case, a
"Servicing Function Participant"), to deliver, each at its own expense, to the
Depositor and the Trustee, a report on an assessment of compliance with the
Servicing Criteria applicable to it that contains (A) a statement by such party
of its responsibility for assessing compliance with the Servicing Criteria
applicable to it, (B) a statement that such party used the Servicing Criteria to
assess compliance with the applicable Servicing Criteria, (C) such party's
assessment of compliance with the applicable Servicing Criteria as of and for
the period ending the end of the fiscal year covered by the Form 10-K required
to be filed pursuant to Section 8.12, including, if there has been any material
instance of noncompliance with the applicable Servicing Criteria, a discussion
of each such failure and the nature and status thereof, and (D) a statement that
a registered public accounting firm has issued an attestation report on such
Person's assessment of compliance with the applicable Servicing Criteria as of
and for such period. Each such assessment of compliance report shall be
addressed to the Depositor and signed by an authorized officer of the applicable
company, and shall address each of the applicable Servicing Criteria set forth
on Exhibit T hereto, or as set forth in the notification furnished to the
Depositor and the Trustee pursuant to Section 3.23(c). The Servicer and the
Trustee hereby acknowledge and agree that their respective assessments of
compliance will cover the items identified on Exhibit T hereto as being covered
by such party. The parties to this Agreement acknowledge that where a particular
Servicing Criteria has multiple components, each party's assessment of
compliance (and related attestation of compliance) will relate only to those
components that are applicable to such party. Promptly after receipt of each
such report on assessment of compliance, (i) the Depositor shall review each
such report and, if applicable, consult with the Servicer or the Trustee as to
the nature of any material instance of noncompliance with the Servicing Criteria
applicable to it (and each Subservicer or Servicing Function Participant engaged
or utilized by the Servicer, such Subservicer or the Trustee, as applicable), as
the case may be.
(b) Not later than March 15th of each calendar year commencing in
2007, the Servicer and the Trustee shall cause, and the Servicer shall cause
each Subservicer engaged by the Servicer and the Servicer and the Trustee shall
cause each Servicing Function Participant utilized by the Trustee or the
Servicer, as applicable (or by any Subservicer engaged by the Servicer), to
cause, each at its own expense, a registered public accounting firm (which may
also render other services to such party) and that is a member of the American
Institute of Certified Public Accountants to furnish a report to the Trustee and
the Depositor, with a copy to the Rating Agencies, to the effect that (i) it has
obtained a representation regarding certain matters from the management of such
Person, which includes an assertion that such Person has complied with the
Servicing Criteria applicable to it pursuant to Section 3.23(a) and (ii) on the
basis of an examination conducted by such firm in accordance with standards for
attestation engagements issued or adopted by the PCAOB, that attests to and
reports on such Person's assessment of compliance with the Servicing Criteria
applicable to it. In the event that an overall opinion cannot be expressed, such
registered public accounting firm shall state in such report why it was unable
to express such an opinion. Each such related accountant's attestation report
shall be made in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X
under the Securities Act and the Exchange Act. Such report must be available for
general use and not contain restricted use language. Promptly after receipt of
each such accountants' attestation report, the Depositor shall review the report
and, if applicable, consult with the Servicer or the Trustee as to the nature of
any defaults by the Servicer or the Trustee (and each Subservicer or Servicing
Function Participant engaged or utilized by the Servicer or the Trustee, as
applicable, or by any Subservicer engaged by the Servicer), as the case may be,
in the fulfillment of any of the Servicer's, the Trustee's or the applicable
Subservicer's or Servicing Function Participant's obligations hereunder or under
any applicable sub-servicing agreement.
(c) No later than February 1 of each fiscal year, commencing in
2007, the Servicer shall notify the Trustee and the Depositor as to the name of
each Subservicer engaged by it and each Servicing Function Participant utilized
by it and by each Subservicer engaged by it, and the Trustee shall notify the
Depositor as to the name of each Servicing Function Participant utilized by it,
and each such notice will specify what specific Servicing Criteria will be
addressed in the report on assessment of compliance prepared by such Servicing
Function Participant in each case, to the extent of any change from the prior
year's notice, if any. When the Servicer or the Trustee submits its assessment
pursuant to Section 3.23(a), the Servicer and the Trustee, as applicable, will
also at such time include the assessment (and related attestation pursuant to
Section 3.23(b)) of each Servicing Function Participant utilized by it and by
each Subservicer engaged by it.
Section 3.24 Trustee to Act as Servicer. (a) In the event that
the Servicer or the Xxxxx Fargo Servicer shall for any reason no longer be the
Servicer hereunder or the Xxxxx Fargo Servicer shall for any reason no longer be
the Xxxxx Fargo Servicer under the Xxxxx Fargo Agreements (including by reason
of an Event of Default), the Trustee or its successor shall, thereupon assume
all of the rights and obligations of the Servicer hereunder or the Xxxxx Fargo
Servicer under the Xxxxx Fargo Agreements, as applicable, arising thereafter
(except that the Trustee shall not be (i) liable for losses of such predecessor
Servicer pursuant to Section 3.10 or any acts or omissions of such predecessor
Servicer hereunder or under the Xxxxx Fargo Agreements, (ii) obligated to make
Advances if it is prohibited from doing so by applicable law, (iii) obligated to
effectuate repurchases or substitutions of Mortgage Loans hereunder or under the
Xxxxx Fargo Agreements, including but not limited to repurchases or
substitutions pursuant to Section 2.03, (iv) responsible for expenses of the
Servicer pursuant to Section 2.03 or (v) deemed to have made any representations
and warranties of the Servicer hereunder or the Xxxxx Fargo Servicer under the
Xxxxx Fargo Agreements, as applicable.). Any such assumption shall be subject to
Section 7.02.
(b) Every Subservicing Agreement entered into by the Servicer
shall contain a provision giving the successor Servicer the option to terminate
such agreement in the event a successor Servicer is appointed.
(c) If the Servicer or the Xxxxx Fargo Servicer shall for any
reason no longer be the Servicer hereunder or under the Xxxxx Fargo Agreements,
as applicable (including by reason of any Event of Default), the Trustee (or any
other successor Servicer) may, at its option, succeed to any rights and
obligations of the Servicer or the Xxxxx Fargo Servicer under any Subservicing
Agreement in accordance with the terms thereof; provided, that the Trustee (or
any other successor Servicer) shall not incur any liability or have any
obligations in its capacity as successor Servicer under a Subservicing Agreement
arising prior to the date of such succession unless it expressly elects to
succeed to the rights and obligations of the Servicer or the Xxxxx Fargo
Servicer thereunder; and the Servicer or the Xxxxx Fargo Servicer, as
applicable, shall not thereby be relieved of any liability or obligations under
the Subservicing Agreement arising prior to the date of such succession.
(d) The Servicer shall, upon request of the Trustee, but at the
expense of the Servicer, deliver to the assuming party all documents and records
relating to each Subservicing Agreement (if any) to which it is a party and the
Mortgage Loans then being serviced thereunder and an accounting of amounts
collected and held by it and otherwise use its best efforts to effect the
orderly and efficient transfer of such Subservicing Agreement to the assuming
party.
Section 3.25 Compensating Interest. The Servicer shall remit to
the Trustee on each Remittance Date an amount from its own funds equal to
Compensating Interest payable by the Servicer for such Remittance Date.
Section 3.26 Credit Reporting; Xxxxx-Xxxxx-Xxxxxx Act. (a) With
respect to each Mortgage Loan, the Servicer shall fully furnish, in accordance
with the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information (e.g., favorable and unfavorable) on the related
Mortgagor credit files to Equifax, Experian and TransUnion Credit Information
Company (three of the national credit repositories), on a monthly basis.
(b) Each party shall comply with all provisions of the Privacy
Laws relating to the Mortgage Loans, the related borrowers and any "nonpublic
personal information" (as defined in the Privacy Laws) received by such party
incidental to the performance of its obligations under this Agreement,
including, maintaining adequate information security procedures to protect such
nonpublic personal information and, in the case of the Servicer, providing all
privacy notices required by the Privacy Laws.
Section 3.27 Excess Reserve Fund Account; Distribution Account.
(a) The Trustee shall establish and maintain the Excess Reserve Fund Account, on
behalf of the Class X Certificateholders, to receive that portion of the
distributions on the Class X Interest up to an amount equal to any Basis Risk
Payments and to pay to the LIBOR Certificateholders any Basis Risk Carry Forward
Amounts (prior to using any Net Swap Receipts). For the avoidance of doubt, any
Basis Risk Carry Forward Amounts shall be paid to the LIBOR Certificates first
from the Excess Reserve Fund Account and then from the Supplemental Interest
Trust.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class of LIBOR Certificates, the Trustee shall (1)
withdraw from the Distribution Account and deposit in the Excess Reserve Fund
Account, as set forth in Section 4.02(a)(iii)(L), the lesser of the Class X
Distributable Amount (to the extent remaining after the distributions specified
in Sections 4.02(a)(iii)(A)-(K) and without regard to the reduction in clause
(iii) of the definition thereof for any Basis Risk Carry Forward Amounts or any
Defaulted Swap Termination Payment) and the aggregate Basis Risk Carry Forward
Amount and (2) withdraw from the Excess Reserve Fund Account amounts necessary
to pay to such Class or Classes of LIBOR Certificates the applicable Basis Risk
Carry Forward Amounts. Such payments, along with payments from the Supplemental
Interest Trust, shall be allocated to those Classes based upon the amount of
Basis Risk Carry Forward Amount owed to each such Class and shall be paid in the
priority set forth in Section 4.02(a)(iii)(M). In the event that the Class
Certificate Balance of any Class of Certificates is reduced because of Applied
Realized Loss Amounts, the applicable Certificateholders will not be entitled to
receive Basis Risk Carry Forward Amounts on the written down amounts on such
Distribution Date or any future Distribution Dates (except to the extent such
Class Certificate Balance is increased as a result of any Subsequent
Recoveries), even if funds are otherwise available for distribution.
The Trustee shall account for the Excess Reserve Fund Account as
an asset of a grantor trust under subpart E, Part I of subchapter J of the Code
and not as an asset of any Trust REMIC created pursuant to this Agreement. The
beneficial owners of the Excess Reserve Fund Account are the Class X
Certificateholders.
Any Basis Risk Carry Forward Amounts distributed by the Trustee to
the LIBOR Certificateholders from the Excess Reserve Fund Account shall be
accounted for by the Trustee, for federal income tax purposes, as amounts paid
first to the Holders of the Class X Certificates (in respect of the Class X
Interest) and then to the respective Class or Classes of LIBOR Certificates. In
addition, the Trustee shall account for the rights of Holders of each Class of
LIBOR Certificates to receive payments of Basis Risk Carry Forward Amounts from
the Excess Reserve Fund Account (along with payments of Basis Risk Carry Forward
Amounts and, without duplication, Upper-Tier Carry Forward Amounts from the
Supplemental Interest Trust) as rights in a separate limited recourse interest
rate cap contract written by the Class X Certificateholders in favor of Holders
of each such Class.
Notwithstanding any provision contained in this Agreement, the
Trustee shall not be required to make any payments from the Excess Reserve Fund
Account except as expressly set forth in this Section 3.27(a).
(b) The Trustee shall establish and maintain the Distribution
Account on behalf of the Certificateholders. The Trustee shall, promptly upon
receipt on the Business Day received, deposit in the Distribution Account and
retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.11 or by the Xxxxx Fargo Servicer under the Xxxxx
Fargo Agreements;
(ii) any amount deposited by the Servicer pursuant to Section
3.12(b) in connection with any losses on Permitted Investments or by the
Xxxxx Fargo Servicer under the Xxxxx Fargo Agreements;
(iii) any amounts remitted by the Servicer to the Trustee in
respect of Compensating Interest pursuant to Section 3.25 or by the Xxxxx
Fargo Servicer under the Xxxxx Fargo Agreements; and
(iv) any other amounts deposited hereunder which are required to
be deposited in the Distribution Account.
In the event that the Servicer shall remit any amount not required
to be remitted, the Servicer may at any time direct the Trustee in writing to
withdraw such amount from the Distribution Account, any provision herein to the
contrary notwithstanding. Such direction may be accomplished by delivering
notice to the Trustee, which describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 4.02.
(c) In order to comply with the laws, rules and regulations
applicable to banking institutions, including those relating to the funding of
terrorist activities and money laundering, the Trustee is required to obtain,
verify and record certain information relating to individuals and entities which
maintain a business relationship with the Trustee. Accordingly, each of the
parties agrees to provide to the Trustee upon its request from time to time such
party's complete name, address, tax identification number and such other
identifying information, together with copies of such party's constituting
documentation, securities disclosure documentation and such other identifying
documentation as may be available for such party.
Section 3.28 Optional Purchase of Delinquent Mortgage Loans. The
Depositor (or its assignee), in its sole discretion, shall have the option, but
shall not be obligated, to purchase any 90+ Day Delinquent Mortgage Loans from
the Trust Fund. The purchase price for any such Mortgage Loan shall be 100% of
the unpaid principal balance of such Mortgage Loan plus accrued and unpaid
interest on the related Mortgage Loan at the applicable Mortgage Interest Rate,
plus the amount of any unreimbursed Servicing Advances made by the Servicer or
the Xxxxx Fargo Servicer, as applicable. Upon receipt of such purchase price,
the Servicer shall provide to the Trustee a Request for Release and the Trustee
shall promptly release to the Depositor, the Mortgage File relating to the
Mortgage Loan being repurchased.
Section 3.29 Special Servicing of 60+ Day Delinquent Mortgage
Loans. Upon any Mortgage Loan becoming a 60+ Day Delinquent Mortgage Loan, the
Majority Class X Certificateholder shall have the option to cause the servicing
with respect to such Mortgage Loan to be transferred to a Special Servicer who
meets the qualifications set forth in the definition thereof as certified to the
Trustee. Immediately upon the transfer of servicing to the Special Servicer with
respect to any Mortgage Loan, the Special Servicer shall service such Mortgage
Loan in accordance with (i) all provisions of this Agreement which were
applicable to the Servicer prior to such transfer of servicing and (ii) any
Special Servicing Agreement. Upon the exercise of such option, servicing on such
Mortgage Loans will transfer to the Special Servicer, upon prior written notice
to the Servicer, without any further action by the Majority Class X
Certificateholder. No Special Servicing Agreement shall be inconsistent with the
servicing provisions of this Agreement, or modify any material term of this
Agreement, including but not limited to, increase the Servicing Fee payable to
the Special Servicer under this Agreement. If any Mortgage Loan serviced by the
Special Servicer subsequently becomes a Mortgage Loan that is not a 60+ Day
Delinquent Mortgage Loan, such Mortgage Loan shall continue to be serviced by
the Special Servicer in accordance with this Agreement exclusively, without
regard to any Special Servicing Agreement and the Special Servicer shall
evidence its agreement in writing to the Depositor, the Majority Class X
Certificateholder and the Trustee to be bound by each and every provision of
this Agreement as such provisions relate to the "Servicer" to the same extent as
if the Special Servicer were a party hereto. Notwithstanding anything to the
contrary contained herein, upon the transfer of servicing with respect to any
such Mortgage Loan to the Special Servicer, the Servicer (or any successor
thereto other than the Special Servicer) shall have no further rights,
obligations or liabilities with respect to such Mortgage Loan (except that the
Servicer shall still remain liable for any of its actions or omissions with
respect to such Mortgage Loan prior to such servicing transfer). Any costs and
expenses of the Servicer and the Trustee in connection with the negotiation,
execution and delivery of any Special Servicing Agreement and the transfer of
servicing to a Special Servicer shall be an expense of the Majority Class X
Certificateholder (or, if the Majority Class X Certificateholder fails to make
prompt reimbursement, such costs and reimbursements shall be payable from
amounts due to the Class X Certificates under this Agreement). In the event that
a Special Servicer is appointed under this Agreement, the Servicer and the
Trustee shall be entitled with respect to such Special Servicer and its related
Special Servicing Agreement, to all the benefits, rights, indemnities and
limitations on liability accorded to them under this Agreement in respect of the
Servicer. The Trustee shall have no obligation to approve of, or consent to, the
appointment or termination of any Special Servicer and shall have no obligation
or responsibility to supervise or monitor any of its activities or actions, or
to verify compliance with any written agreement with such Special Servicer. Any
Special Servicing Agreement executed by the Trustee shall be solely in its
capacity as trustee of the Trust for the purpose of binding only the Trust, and
the Trustee in its individual capacity shall not be personally liable under any
circumstance related thereto.
ARTICLE IV
DISTRIBUTIONS AND
ADVANCES BY THE SERVICER
Section 4.01 Advances. (a) The amount of P&I Advances to be made
by the Servicer for any Remittance Date shall equal, subject to Section 4.01(c),
the sum of (i) the aggregate amount of Scheduled Payments (with each interest
portion thereof net of the related Servicing Fee), due during the Due Period
immediately preceding such Remittance Date in respect of the Mortgage Loans
serviced by the Servicer, which Scheduled Payments were not received as of the
close of business on the related Determination Date, plus (ii) with respect to
each REO Property, which REO Property was acquired during or prior to the
related Prepayment Period and as to which such REO Property an REO Disposition
did not occur during the related Prepayment Period, an amount equal to the
excess, if any, of the Scheduled Payments (with REO Imputed Interest) that would
have been due on the related Due Date in respect of the related Mortgage Loan,
over the net income from such REO Property transferred to the Collection Account
for distribution on such Remittance Date.
(b) On each Remittance Date, the Servicer shall remit in
immediately available funds to the Trustee for deposit in the Distribution
Account an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the Mortgage Loans and REO Properties serviced by the
Servicer for the related Remittance Date either (i) from its own funds or (ii)
from the Collection Account, to the extent of funds held therein for future
distribution (in which case, the Servicer will cause to be made an appropriate
entry in the records of the Collection Account that Amounts Held for Future
Distribution have been, as permitted by this Section 4.01, used by the Servicer
in discharge of any such P&I Advance) or (iii) in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made by the
Servicer with respect to the Mortgage Loans and REO Properties. Any Amounts Held
for Future Distribution and so used shall be appropriately reflected in the
Servicer's records and replaced by the Servicer by deposit in the Collection
Account on or before any future Remittance Date to the extent required.
(c) The obligation of the Servicer to make such P&I Advances is
mandatory, notwithstanding any other provision of this Agreement but subject to
paragraph (d) below, and, with respect to any Mortgage Loan or REO Property,
shall continue until a Final Recovery Determination in connection therewith or
the removal thereof from coverage under this Agreement, except as otherwise
provided in this Section 4.01.
(d) Notwithstanding anything herein to the contrary, no P&I
Advance or Servicing Advance shall be required to be made hereunder by the
Servicer if such P&I Advance or Servicing Advance would, if made, constitute a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance. The
determination by the Servicer that it has made a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance or that any proposed P&I Advance or Servicing
Advance, if made, would constitute a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance, respectively, shall be evidenced by an
Officer's Certificate of the Servicer delivered to the Trustee. In addition, the
Servicer shall not be required to advance any Relief Act Interest Shortfalls.
(e) Except as otherwise provided herein, the Servicer shall be
entitled to reimbursement pursuant to Section 3.11 for Advances from recoveries
from the related Mortgagor or from all Liquidation Proceeds and other payments
or recoveries (including Insurance Proceeds and Condemnation Proceeds) with
respect to the related Mortgage Loan.
Section 4.02 Priorities of Distribution. (a) On each Distribution
Date, the Trustee shall allocate from amounts then on deposit in the
Distribution Account in the following order of priority and to the extent of the
Available Funds remaining and, on such Distribution Date, shall make
distributions on the Certificates in accordance with such allocation:
(i) to the Supplemental Interest Trust and to the holders of each
Class of LIBOR Certificates in the following order of priority:
(A) to the Supplemental Interest Trust, the sum of (x) all
Net Swap Payments and (y) any Swap Termination Payment owed to the
Swap Provider other than a Defaulted Swap Termination Payment;
(B) concurrently, (1) from the Interest Remittance Amount
related to the Group I Mortgage Loans, to the Class A-1
Certificates, the related Accrued Certificate Interest
Distribution Amounts and Unpaid Interest Amounts for the Class A-1
Certificates; (2) from the Interest Remittance Amount related to
the Group II Mortgage Loans, pro rata (based on the Accrued
Certificate Interest Distribution Amounts and Unpaid Interest
Amounts distributable to the Class A-2A, Class A-2B, Class A-2C
and Class A-2D Certificates) to the Class A-2A, Class A-2B, Class
A-2C and Class A-2D Certificates, the related Accrued Certificate
Interest Distribution Amounts and Unpaid Interest Amounts for the
Class A-2A, Class A-2B, Class A-2C and Class A-2D Certificates;
(3) provided, that if the Interest Remittance Amount for either
Loan Group is insufficient to make the related payments set forth
clause (1) or (2) above, any Interest Remittance Amount relating
to the other Loan Group remaining after payment of the related
Accrued Certificate Interest Distribution Amounts and Unpaid
Interest Amounts will be available to cover that shortfall;
(C) from any remaining Interest Remittance Amounts, to the
Class M-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(D) from any remaining Interest Remittance Amounts, to the
Class M-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(E) from any remaining Interest Remittance Amounts, to the
Class M-3 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(F) from any remaining Interest Remittance Amounts, to the
Class M-4 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(G) from any remaining Interest Remittance Amounts, to the
Class M-5 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(H) from any remaining Interest Remittance Amounts, to the
Class M-6 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(I) from any remaining Interest Remittance Amounts, to the
Class M-7 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(J) from any remaining Interest Remittance Amounts, to the
Class M-8 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(K) from any remaining Interest Remittance Amounts, to the
Class M-9 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class;
(L) from any remaining Interest Remittance Amounts, to the
Class B-1 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class; and
(M) from any remaining Interest Remittance Amounts, to the
Class B-2 Certificates, the Accrued Certificate Interest
Distribution Amount for such Class.
(ii) (A) on each Distribution Date (a) prior to the Stepdown Date
or (b) with respect to which a Trigger Event is in effect, to the holders
of the Class or Classes of LIBOR Certificates then entitled to
distributions of principal as set forth below, an amount equal to the
Principal Distribution Amount in the following order of priority:
(a) sequentially:
(x) concurrently to the Class R, Class RC and Class
RX Certificates, allocated pro rata, until their
respective Class Certificate Balances have been reduced to
zero; and
(y) to the Class A Certificates, allocated as
described in Section 4.02(c), until their respective Class
Certificate Balances are reduced to zero;
(b) sequentially, to the Class X-0, Xxxxx X-0, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9,
Class B-1 and Class B-2 Certificates, in that order, until their
respective Class Certificate Balances are
reduced to zero;
(B) on each Distribution Date (a) on and after the Stepdown Date
and (b) so long as a Trigger Event is not in effect, to the holders of
the Class or Classes of LIBOR Certificates then entitled to distributions
of principal as set forth below, an amount equal to the Principal
Distribution Amount in the following order of priority:
(a) the lesser of (x) the Principal Distribution Amount
and (y) the Class A Principal Distribution Amount to the Class A
Certificates, allocated as described in Section 4.02(c), until
their respective Class Certificate Balances are reduced to zero;
(b) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class
A Certificates in clause (ii)(B)(a) above and (y) the Class M-1
Principal Distribution Amount, to the Class M-1 Certificates
until their Class Certificate Balance has been reduced to zero;
(c) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class
A Certificates in clause (ii)(B)(a) above and to the Class M-1
Certificates in clause (ii)(B)(b) above, and (y) the Class M-2
Principal Distribution Amount, to the Class M-2 Certificates
until their Class Certificate Balance has been reduced to zero;
(d) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class
A Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above and to the Class M-2
Certificates in clause (ii)(B)(c) above, and (y) the Class M-3
Principal Distribution Amount, to the Class M-3 Certificates
until their Class Certificate Balance has been reduced to zero;
(e) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class
A Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above and to the Class M-3
Certificates in clause (ii)(B)(d) above, and (y) the Class M-4
Principal Distribution Amount, to the Class M-4 Certificates
until their Class Certificate Balance has been reduced to zero;
(f) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class
A Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above and to the Class M-4
Certificates in clause (ii)(B)(e) above, and (y) the Class M-5
Principal Distribution Amount, to the Class M-5 Certificates
until their Class Certificate Balance has been reduced to zero;
(g) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class
A Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above and to the Class M-5
Certificates in clause (ii)(B)(f) above, and (y) the Class M-6
Principal Distribution Amount, to the Class M-6 Certificates
until their Class Certificate Balance has been reduced to zero;
(h) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class
A Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above, to the Class M-5
Certificates in clause (ii)(B)(f) above and to the Class M-6
Certificates in clause (ii)(B)(g) above, and (y) the Class M-7
Principal Distribution Amount, to the Class M-7 Certificates
until their Class Certificate Balance has been reduced to zero;
and
(i) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class
A Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above, to the Class M-5
Certificates in clause (ii)(B)(f) above, to the Class M-6
Certificates in clause (ii)(B)(g) above and to the Class M-7
Certificates in clause (ii)(B)(h) above, and (y) the Class M-8
Principal Distribution Amount, to the Class M-8 Certificates
until their Class Certificate Balance has been reduced to zero;
(j) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class
A Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above, to the Class M-5
Certificates in clause (ii)(B)(f) above, to the Class M-6
Certificates in clause (ii)(B)(g) above, to the Class M-7
Certificates in clause (ii)(B)(h) above and to the Class M-8
Certificates in clause (ii)(B)(i) above, and (y) the Class M-9
Principal Distribution Amount, to the Class M-9 Certificates
until their Class Certificate Balance has been reduced to zero;
(k) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class
A Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above and to the Class M-5
Certificates in clause (ii)(B)(f) above, to the Class M-6
Certificates in clause (ii)(B)(g) above, to the Class M-7
Certificates in clause (ii)(B)(h) above, to the Class M-8
Certificates in clause (ii)(B)(i) above and to the Class M-9
Certificates in clause (ii)(B)(j) above, and (y) the Class B-1
Principal Distribution Amount, to the Class B-1 Certificates
until their Class Certificate Balance has been reduced to zero;
(l) the lesser of (x) the excess of (i) the Principal
Distribution Amount over (ii) the amount distributed to the Class
A Certificates in clause (ii)(B)(a) above, to the Class M-1
Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3
Certificates in clause (ii)(B)(d) above, to the Class M-4
Certificates in clause (ii)(B)(e) above and to the Class M-5
Certificates in clause (ii)(B)(f) above, to the Class M-6
Certificates in clause (ii)(B)(g) above, to the Class M-7
Certificates in clause (ii)(B)(h) above, to the Class M-8
Certificates in clause (ii)(B)(i) above, to the Class M-9
Certificates in clause (ii)(B)(j) above, to the Class B-1
Certificates in clause (ii)(B)(k) above and (y) the Class B-2
Principal Distribution Amount, to the Class B-2 Certificates
until their Class Certificate Balance has been reduced to zero;
(iii) any amount remaining after the distributions in clauses
4.02(a)(i) and (ii) above shall be distributed in the following order of
priority:
(A) to the Class M-1 Certificates, any Unpaid Interest
Amount for such Class;
(B) to the Class M-2 Certificates, any Unpaid Interest
Amount for such Class;
(C) to the Class M-3 Certificates, any Unpaid Interest
Amount for such Class;
(D) to the Class M-4 Certificates, any Unpaid Interest
Amount for such Class;
(E) to the Class M-5 Certificates, any Unpaid Interest
Amount for such Class;
(F) to the Class M-6 Certificates, any Unpaid Interest
Amount for such Class;
(G) to the Class M-7 Certificates, any Unpaid Interest
Amount for
such Class;
(H) to the Class M-8 Certificates, any Unpaid Interest
Amount for such Class;
(I) to the Class M-9 Certificates, any Unpaid Interest
Amount for such Class;
(J) to the Class B-1 Certificates, any Unpaid Interest
Amount for such Class;
(K) to the Class B-2 Certificates, any Unpaid Interest
Amount for such Class;
(L) to the Excess Reserve Fund Account, the amount of any
Basis Risk Payment (without regard to Net Swap Receipts) for such
Distribution Date;
(M) from funds on deposit in the Excess Reserve Fund
Account with respect to such Distribution Date, an amount equal to
any Basis Risk Carry Forward Amount with respect to the LIBOR
Certificates for such Distribution Date to such Classes in the
same order and priority as set forth in Section 4.02(a)(i), with
the allocation to the Class A Certificates being pro rata based on
their respective Basis Risk Carry Forward Amounts;
(N) to the Supplemental Interest Trust, the amount of any
Defaulted Swap Termination Payment;
(O) to the Class X Certificates, the remainder of the Class
X Distributable Amount not distributed pursuant to Sections
4.02(a)(iii)(A)-(N);
(P) to the Class RC Certificates, any remaining amount, in
respect of Pooling-Tier REMIC-1;
(Q) to the Class R Certificates, any remaining amount, in
respect of Pooling-Tier REMIC-2, the Lower-Tier REMIC and the
Upper-Tier REMIC; and
(R) to the Class RX Certificates, any remaining amount, in
respect of the Class X REMIC.
Notwithstanding the foregoing, if the Stepdown Date is the date on
which the Class Certificate Balance of the Class A Certificates is reduced to
zero, any Principal Distribution Amount remaining after principal distributions
to the Class A Certificates pursuant to clause (ii)(A) above will be included as
part of the distributions pursuant to clause (ii)(B) above.
(b) On each Distribution Date, all amounts representing Prepayment
Premiums from the Mortgage Loans received during the related Prepayment Period
shall be distributed by the Trustee to the holders of the Class P Certificates.
(c) All principal distributions allocated to the Class A
Certificates on any Distribution Date shall be allocated between the Class A-1
Certificate Group and the Class A-2 Certificate Group based on the Class A
Principal Allocation Percentage for the Class A-1 Certificate Group and the
Class A-2 Certificate Group, as applicable. However, if the Class Certificate
Balances of the Class A Certificates in any Class A Certificate Group is reduced
to zero, then the remaining amount of principal distributions distributable to
the Class A Certificates in that Class A Certificate Group on that Distribution
Date, and the amount of principal distributions distributable on all subsequent
Distribution Dates, shall be distributed to the Class A Certificates of the
other Class A Certificate Group remaining Outstanding, in accordance with the
principal distribution allocations set forth in this Section 4.02(c), until
their respective Class Certificate Balances have been reduced to zero. Any
distributions of principal to the Class A-1 Certificate Group shall be made
first from Available Funds relating to the Group I Mortgage Loans. Any
distributions of principal to the Class A-2 Certificate Group shall be made
first from Available Funds relating to the Group II Mortgage Loans.
Principal distributions allocated to the Class A-1 Certificate
Group are required to be distributed to the Class A-1 Certificates, until their
Class Certificate Balance has been reduced to zero.
Principal distributions allocated to the Class A-2 Certificate
Group are required to be distributed sequentially to the Class A-2A
Certificates, until their Class Certificate Balance has been reduced to zero,
then to the Class A-2B Certificates, until their Class Certificate Balance has
been reduced to zero, then to the Class A-2C Certificates, until their Class
Certificate Balance has been reduced to zero and then to the Class A-2D
Certificates, until their Class Certificate Balance has been reduced to zero.
Notwithstanding the allocation of principal to the Class A
Certificates described in this Section 4.02(c), from and after the Distribution
Date on which the aggregate Class Certificate Balances of the Subordinated
Certificates and the principal balance of the Class X Certificates have been
reduced to zero, any principal distributions allocated to the Class A
Certificates are required to be allocated pro rata to the Class A Certificates,
based on their respective Certificate Principal Balances.
(d) On any Distribution Date, any Relief Act Shortfalls and Net
Prepayment Interest Shortfalls for such Distribution Date shall be allocated by
the Trustee as a reduction in the following order:
(1) First, to the portion of the Class X Distributable
Amount allocable to interest; and
(2) Second, pro rata, as a reduction of the Accrued
Certificate Interest Distribution Amount for the Class A, Class M
and Class B Certificates, based on the amount of interest to which
such Classes would otherwise be entitled.
(e) For purposes of this Agreement, any Net Swap Payments or Swap
Termination Payments (other than Defaulted Swap Termination Payments) shall be
allocated by the Trustee between Loan Groups based on the respective aggregate
Stated Principal Balance of the Mortgage Loans in each Loan Group.
Section 4.03 Monthly Statements to Certificateholders. (a) Not
later than each Distribution Date, the Trustee shall make available to each
Certificateholder, the Servicer, the Xxxxx Fargo Servicer, the Depositor and
each Rating Agency a statement, based substantially on information provided by
the Servicer or the Xxxxx Fargo Servicer, as applicable, setting forth with
respect to the related distribution:
(i) the actual Distribution Date, the related Record Date, the
Interest Accrual Period(s) for each Class for such Distribution Date and
the LIBOR Determination Date for such Interest Accrual Period;
(ii) the amount of Available Funds;
(iii) the amount of Available Funds allocable to principal, the
Principal Remittance Amount (separately identifying the components
thereof) and the Principal Distribution Amount (separately identifying
the components thereof);
(iv) the amount of Available Funds allocable to interest and each
Interest Remittance Amount;
(v) the amount of any Unpaid Interest Amount for each Class
included in such distribution and any remaining Unpaid Interest Amounts
after giving effect to such distribution, any Basis Risk Carry Forward
Amount for each Class and the amount of such Basis Risk Carry Forward
Amount covered by withdrawals from the Excess Reserve Fund Account on
such Distribution Date;
(vi) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the
amount of the shortfall and the allocation of the shortfall as between
principal and interest, including any Basis Risk Carry Forward Amount not
covered by amounts in the Excess Reserve Fund Account;
(vii) the Class Certificate Balance of each Class of Certificates
before and after giving effect to the distribution of principal on such
Distribution Date;
(viii) the Pool Stated Principal Balance for the related
Distribution Date;
(ix) the amount of Expense Fees paid to or retained by the
Servicer, the Xxxxx Fargo Servicer and the Trustee (stated separately and
in the aggregate) with respect to such Distribution Date;
(x) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(xi) the amount of Advances included in the distribution on such
Distribution Date reported by the Servicer and the Xxxxx Fargo Servicer
(and the Trustee as successor servicer and any other successor servicer,
if applicable) as of the close of business on the Determination Date
immediately preceding such Distribution Date;
(xii) the number and aggregate outstanding principal balances of
Mortgage Loans (1) as to which the Scheduled Payment is delinquent 31 to
60 days, 61 to 90 days, 91 to 120 days, 121 to 150 days, 151 to 180 days,
181 to 210 days, 211 to 240 days and 240+ days, (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in bankruptcy, in
each case as of the close of business on the last day of the related Due
Period;
(xiii) for each of the preceding 12 calendar months, or all
calendar months since the related Cut-off Date, whichever is less, the
aggregate dollar amount of the Scheduled Payments (A) due on all
Outstanding Mortgage Loans on each of the Due Dates in each such month
and (B) delinquent 60 days or more on each of the Due Dates in each such
month;
(xiv) with respect to any Mortgage Loans that became REO
Properties during the preceding calendar month, the aggregate number of
such Mortgage Loans and the aggregate outstanding principal balance of
such Mortgage Loans as of the close of business on the last day of the
related Due Period;
(xv) the total number and outstanding principal balance of any REO
Properties (and market value, if available) as of the close of business
on the last Business Day of the related Due Period;
(xvi) whether a Trigger Event has occurred and is continuing
(including the calculation demonstrating the existence of the Trigger
Event and the aggregate outstanding principal balance of all 60+ Day
Delinquent Mortgage Loans);
(xvii) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xviii) in the aggregate and for each Class of Certificates, the
aggregate amount of Applied Realized Loss Amounts incurred during the
preceding calendar month and aggregate Applied Realized Loss Amounts
through such Distribution Date;
(xix) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation of it to the Certificateholders with
respect to Unpaid Interest Amounts, Applied Realized Loss Amounts and
Basis Risk Carry Forward Amounts;
(xx) the amount of any Net Swap Payments, Net Swap Receipts, Swap
Termination Payments or Defaulted Swap Termination Payments;
(xxi) the LIBOR and Swap LIBOR rates (and the calculation thereof,
if applicable);
(xxii) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xxiii) Prepayment Charges collected or paid (pursuant to Section
3.07(a) or the Xxxxx Fargo Agreements, as applicable) by the Servicer and
the Xxxxx Fargo Servicer;
(xxiv) the Cumulative Loss Percentage and the aggregate amount of
Realized Losses used to calculate the Cumulative Loss Percentage;
(xxv) the amount distributed on the Class X Certificates;
(xxvi) the amount of any Subsequent Recoveries for such
Distribution Date; and
(xxvii) the number of Mortgage Loans at the beginning and end of
the applicable reporting period, the pool factor (being the Stated
Principal Balance of the Mortgage Loans for the related Distribution Date
divided by the Cut-off Date Principal Balance), and the weighted average
interest rate, and weighted average remaining term.
In addition, each Form 10-D prepared and filed by the Trustee
pursuant to Section 8.12 shall include the following information with respect to
the related distribution:
(xxviii) material breaches of Mortgage Loan representations and
warranties of which the Trustee has actual knowledge or has received
written notice; and
(xxix) material breaches of any covenants under this Agreement of
which the Trustee has actual knowledge or has received written notice;
provided, that, if the Trustee receives written notice of events described in
(i) and/or (ii) above from the Servicer or the Xxxxx Fargo Servicer, the
Servicer or the Xxxxx Fargo Servicer shall be responsible for providing
information to the Trustee for inclusion in the applicable Form 10-D.
(b) The Trustee's responsibility for providing the above statement
to the Certificateholders, each Rating Agency, the Servicer, the Xxxxx Fargo
Servicer and the Depositor is limited, if applicable, to the availability,
timeliness and accuracy of the information derived from the Servicer. The
Trustee shall make available the above statement via the Trustee's internet
website. The Trustee's website will initially be located at
xxxxx://xxx.xxx.xx.xxx/xxxx and assistance in using the website can be obtained
by calling the Trustee's investor relations desk at 0-000-000-0000. A paper copy
of the above statement will also be made available upon request.
The Trustee shall make available to each Analytics Company, via
the Trustee's internet website (or electronically upon request), each statement
to Certificateholders prepared pursuant to this Section 4.03(a). The Trustee and
the Servicer shall cooperate in good faith with the Depositor to reconcile any
discrepancies in such statements, and the Trustee shall post such corrected
statements on its internet website (or electronically upon request to each
Analytics Company) as soon as reasonably practicable after the related
Distribution Date.
(c) Upon request, within a reasonable period of time after the end
of each calendar year, the Trustee shall cause to be furnished to each Person
who at any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i) and (a)(ii) of this
Section 4.03 aggregated for such calendar year or applicable portion thereof
during which such Person was a Certificateholder. Such obligation of the Trustee
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
(d) Not later than the Determination Date for each Distribution
Date, the Servicer shall furnish to the Depositor with respect to clause (i)
below and the Trustee with respect to clause (ii) below, a monthly remittance
advice statement (the "Servicer Remittance Report") (in a format mutually agreed
upon by the Servicer, the Trustee and the Depositor) containing such information
as shall be reasonably requested (i) by the Depositor to enable the Depositor to
disclose "static pool information," as required by Item 1105 of Regulation AB,
with respect to the Mortgage Loans, and (ii) by the Trustee to enable the
Trustee to provide the reports required by Section 4.03(a) as to the
accompanying remittance and the period ending on the close of business on the
last day of the related Prepayment Period. The Servicer shall concurrently
deliver to the Depositor and the Responsible Party a data tape, in form and
substance reasonably satisfactory to the Depositor and the Responsible Party,
containing the information required pursuant to this Section 4.03(d) on a
loan-by-loan basis for all of the Mortgage Loans (or, with respect to the
Responsible Party, the Mortgage Loans sold by such the Responsible Party to the
Sponsor as identified on the Mortgage Loan Schedule).
The Servicer shall furnish to the Trustee an individual loan
accounting report, as of the last Business Day of each month, to document
Mortgage Loan payment activity on an individual Mortgage Loan basis. With
respect to each month, the corresponding individual loan accounting report (in
electronic format) shall be received by the Trustee no later than the Reporting
Date, which report shall, at a minimum, contain the following:
(i) with respect to each Scheduled Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any
Prepayment Premiums, along with a detailed report of interest on
Principal Prepayment amounts remitted in accordance with Section 3.25);
(ii) with respect to each Scheduled Payment, the amount of such
remittance allocable to interest;
(iii) the amount of servicing compensation received by the
Servicer during the prior distribution period;
(iv) the individual and aggregate Stated Principal Balance of the
Mortgage Loans;
(v) the aggregate of any expenses reimbursed to the Servicer
during the prior distribution period pursuant to Section 3.11;
(vi) the number and aggregate outstanding principal balances of
Mortgage Loans (a) delinquent 31 to 60 days, 61 to 90 days, or 91 to 120
days, 121 to 150 days, 151 to 180 days, 181 to 210 days, 211 days to 240
days and 240+ days; (b) as to which foreclosure or bankruptcy proceedings
of the related mortgagor have commenced; and (c) as to which REO Property
has been acquired;
(vii) each Mortgage Loan which has been altered, modified or
varied during such month, and the reason for such modification (i.e.,
extension of maturity date, Mortgage Interest Rate);
(viii) with respect to each Liquidated Mortgage Loan, the amount
of any Realized Losses for such Mortgage Loan; and
(ix) any other information reasonably required by the Trustee to
enable it to prepare the Monthly Statement referred to in Section
4.03(a).
(e) For all purposes of this Agreement, with respect to any
Mortgage Loan, delinquencies shall be determined and reported based on the
so-called "OTS" methodology for determining delinquencies on mortgage loans
similar to the Mortgage Loans. By way of example, a Mortgage Loan would be
delinquent with respect to a Scheduled Payment due on a Due Date if such
Scheduled Payment is not made by the close of business on the Mortgage Loan's
next succeeding Due Date, and a Mortgage Loan would be more than 30-days
Delinquent with respect to such Scheduled Payment if such Scheduled Payment were
not made by the close of business on the Mortgage Loan's second succeeding Due
Date. The Servicer hereby represents and warrants to the Depositor that this
delinquency recognition policy is not less restrictive than any delinquency
recognition policy established by the primary safety and soundness regulator, if
any, of the Servicer.
Section 4.04 Certain Matters Relating to the Determination of
LIBOR. LIBOR shall be calculated by the Trustee in accordance with the
definition of "LIBOR." Until all of the LIBOR Certificates are paid in full, the
Trustee shall at all times retain at least four Reference Banks for the purpose
of determining LIBOR with respect to each LIBOR Determination Date. The Trustee
initially shall designate the Reference Banks (after consultation with the
Depositor). Each "Reference Bank" shall be a leading bank engaged in
transactions in Eurodollar deposits in the international Eurocurrency market,
shall not control, be controlled by, or be under common control with, the
Trustee and shall have an established place of business in London. If any such
Reference Bank should be unwilling or unable to act as such or if the Trustee
should terminate its appointment as Reference Bank, the Trustee shall promptly
appoint or cause to be appointed another Reference Bank (after consultation with
the Depositor). The Trustee shall have no liability or responsibility to any
Person for (i) the selection of any Reference Bank for purposes of determining
LIBOR or (ii) any inability to retain at least four Reference Banks which is
caused by circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for
each Interest Accrual Period shall be determined by the Trustee on each LIBOR
Determination Date so long as the LIBOR Certificates are Outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement. The Trustee shall not have any liability or
responsibility to any Person for its inability, following a good-faith
reasonable effort, to obtain quotations from the Reference Banks or to determine
the arithmetic mean referred to in the definition of LIBOR, all as provided for
in this Section 4.04 and the definition of LIBOR. The establishment of LIBOR and
each Pass-Through Rate for the LIBOR Certificates by the Trustee shall (in the
absence of manifest error) be final, conclusive and binding upon each Holder of
a Certificate and the Trustee.
Section 4.05 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts shall be allocated by the Trustee to the most
junior Class of Subordinated Certificates then Outstanding in reduction of the
Class Certificate Balance thereof. In the event Applied Realized Loss Amounts
are allocated to any Class of LIBOR Certificates, their Class Certificate
Balances shall be reduced by the amount so allocated, and no funds will be
distributable with respect to the written down amounts (including without
limitation Basis Risk Carry Forward Amounts) or with respect to interest on the
written down amounts on that Distribution Date or any future Distribution Dates,
even if funds are otherwise available for distribution. Notwithstanding the
foregoing, the Class Certificate Balance of each Class of Subordinated
Certificates that has been previously reduced by Applied Realized Loss Amounts
will be increased, in order of seniority, by the amount of the Subsequent
Recoveries (but not in excess of the Applied Realized Loss Amount allocated to
the applicable Class of Subordinated Certificates).
Section 4.06 Supplemental Interest Trust. On the Closing Date, the
Trustee shall establish and maintain in its name, a separate non-interest
bearing trust account for the benefit of the holders of the LIBOR Certificates
(the "Supplemental Interest Trust") as a part of the Trust Fund. The
Supplemental Interest Trust shall be an Eligible Account, and funds on deposit
therein shall be held separate and apart from, and shall not be commingled with,
any other moneys, including, without limitation, other moneys of the Trustee
held pursuant to this Agreement.
On any Distribution Date, Swap Termination Payments, Net Swap
Payments owed to the Swap Provider and Net Swap Receipts for that Distribution
Date will be deposited into the Supplemental Interest Trust. Funds in the
Supplemental Interest Trust will be distributed in the following order of
priority (without duplication of amounts distributable under Section 4.02(a)(i),
(ii) or (iii)):
(i) to the Swap Provider, the sum of (x) all Net Swap Payments and
(y) any Swap Termination Payment, other than a Defaulted Swap Termination
Payment, to the Swap Provider, if any, owed for that Distribution Date;
(ii) to the LIBOR Certificateholders, to pay Accrued Certificate
Interest Distribution Amounts (including for this purpose Upper-Tier
Carry Forward Amounts not included in Basis Risk Carry Forward Amounts)
and, if applicable, any Unpaid Interest Amounts as described in Section
4.02(a)(i) and Section 4.02(a)(iii), to the extent unpaid from other
Available Funds;
(iii) to the LIBOR Certificateholders, to pay principal as
described in Section 4.02(a)(ii), but only to the extent necessary to
restore the Overcollateralized Amount to the Specified Overcollateralized
Amount as a result of current or previous Realized Losses not previously
reimbursed, after giving effect to payments and distributions from other
Available Funds;
(iv) to the LIBOR Certificateholders, to pay Basis Risk Carry
Forward Amounts as described in Section 4.02(a)(iii), to the extent
unpaid from other Available Funds (including Basis Risk Payments on
deposit in the Excess Reserve Fund Account);
(v) to the Swap Provider, any Defaulted Swap Termination Payment
owed to the Swap Provider for that Distribution Date; and
(vi) to the holders of the Class X Certificates, any remaining
amounts.
Notwithstanding the foregoing, in the event that the Trust
receives a Swap Termination Payment and a successor Swap Provider cannot be
obtained, then the Trustee shall deposit the Swap Termination Payment into the
reserve account that is an account of the Supplemental Interest Trust. On each
subsequent Distribution Date (so long as funds are available in the reserve
account), the Trustee shall withdraw from the reserve account and deposit into
the Supplemental Interest Trust an amount equal to the amount of any Net Swap
Receipt due the Trust (calculated in accordance with the terms of the original
Interest Rate Swap Agreement) and treat such amount as a Net Swap Receipt for
purposes of determining the distributions from the Supplemental Interest Trust.
Upon termination of the Trust, any amounts remaining in the
Supplemental Interest Trust shall be distributed pursuant to the priorities set
forth in this Section 4.06.
The Trustee shall account for the Supplemental Interest Trust as
an asset of a grantor trust under subpart E, Part I of subchapter J of the Code
and not as an asset of any Trust REMIC created pursuant to this Agreement. The
beneficial owners of the Supplemental Interest Trust are the Class X
Certificateholders. For federal income tax purposes, Net Swap Payments and Swap
Termination Payments payable to the Swap Provider shall be deemed to be paid to
the Supplemental Interest Trust first, from the Class X REMIC, by the Holder of
the Class X Certificates (in respect of the Class IO Interest and, if
applicable, Class X Interest) and second, other than any Defaulted Swap
Termination Payment, from the Upper-Tier REMIC by the Holders of the applicable
Class or Classes of LIBOR Certificates (in respect of Class IO Shortfalls) as
and to the extent provided in Section 8.13.
Any Basis Risk Carry Forward Amounts and, without duplication,
Upper-Tier Carry Forward Amounts distributed by the Trustee to the LIBOR
Certificateholders shall be accounted for by the Trustee, for federal income tax
purposes, as amounts paid first to the Holders of the Class X Certificates in
respect of the Class X Interest and (to the extent remaining after payments to
the Swap Provider) the Class IO Interest and then to the respective Class or
Classes of LIBOR Certificates. In addition, the Trustee shall account for the
rights of Holders of each Class of LIBOR Certificates to receive payments of
Basis Risk Carry Forward Amounts and, without duplication, Upper-Tier Carry
Forward Amounts from the Supplemental Interest Trust (along with Basis Risk
Carry Forward Amounts payable from the Excess Reserve Fund Account) as rights in
a separate limited recourse interest rate cap contract written by the Class X
Certificateholders in favor of Holders of each such Class.
The Supplemental Interest Trust shall be an "outside reserve fund"
for federal income tax purposes and not an asset of any Trust REMIC.
Furthermore, the Holders of the Class X Certificates shall be the beneficial
owners of the Supplemental Interest Trust for all federal income tax purposes,
and shall be taxable on all income earned thereon.
With respect to the failure of the Swap Provider to perform any of
its obligations under the Interest Rate Swap Agreement, the breach by the Swap
Provider of any of its representations and warranties made pursuant to the
Interest Rate Swap Agreement, or the termination of the Interest Rate Swap
Agreement, the Trustee shall send any notices and make any demands, on behalf of
the Trust, as are required under the Interest Rate Swap Agreement. The Trustee
shall cause any replacement swap provider to provide a copy of the related
replacement interest rate swap agreement to the Trustee and the Depositor.
Section 4.07 Swap Collateral Account. The Trustee shall establish
and maintain an account (the "Swap Provider Collateral Account") in which
collateral received from the Swap Provider shall be deposited. Funds in the Swap
Provider Collateral Account shall be held uninvested; provided however, the
Trustee shall pay from its own funds to the Swap Provider the "interest rate" as
set forth in paragraph 13(h) of the Credit Support Annex, attached hereto as
Exhibit X. All such interest shall be paid to the Swap Provider as set forth in
paragraph 13(h) of the Credit Support Annex. If an event of default by the Swap
Provider occurs under the Interest Rate Swap Agreement, the Trustee shall
enforce the rights of the Trust under the Interest Rate Swap Agreement as well
as with respect to any collateral in the Swap Provider Collateral Account.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount which must be in excess of the applicable minimum denomination)
and aggregate denominations per Class set forth in the Preliminary Statement.
The Depositor hereby directs the Trustee to register the Class X,
Class C and Class P Certificates in the name of the Depositor or its designee.
On a date as to which the Depositor notifies the Trustee, the Depositor hereby
directs the Trustee to transfer the Class X and Class P Certificates in the name
of the NIM Trustee, or such other name or names as the Depositor shall request,
and to deliver the Class X and Class P Certificates to Deutsche Bank National
Trust Company, as NIM Trustee, or to such other Person or Persons as the
Depositor shall request.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such Holder at a bank
or other entity having appropriate facilities therefor as directed by that
Certificateholder by written wire instructions provided to the Trustee or (y),
in the event that no wire instructions are provided to the Trustee, by check
mailed by first class mail to such Certificateholder at the address of such
Holder appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
such signatures were affixed, authorized to sign on behalf of the Trustee shall
bind the Trustee, notwithstanding that such individuals or any of them have
ceased to be so authorized prior to the authentication and delivery of any such
Certificates or did not hold such offices at the date of such Certificate. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless authenticated by the Trustee by manual signature, and
such authentication upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their authentication. On
the Closing Date, the Trustee shall authenticate the Certificates to be issued
at the direction of the Depositor or any Affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Trustee shall maintain, or cause to be
maintained in accordance with the provisions of Section 5.06, a Certificate
Register for the Trust Fund in which, subject to the provisions of subsections
(b) and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder thereof or his attorney duly authorized in writing. In the event the
Depositor or an Affiliate of the Depositor transfers the Class X Certificates,
or a portion thereof, to another Affiliate, it shall notify the Trustee in
writing of the affiliated status of the transferee. The Trustee shall have no
liability regarding the lack of notice with respect thereto.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. Except with respect to (i) the transfer of the Class X, Class C, Class P
or a Residual Certificate to the Depositor or an Affiliate of the Depositor,
(ii) the transfer of the Class X or Class P Certificates to the NIM Issuer or
the NIM Trustee, or (iii) a transfer of the Class X or Class P Certificates from
the NIM Issuer or the NIM Trustee to the Depositor or an Affiliate of the
Depositor, in the event that a transfer of a Private Certificate which is a
Physical Certificate is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer shall
certify to the Trustee in writing the facts surrounding the transfer in
substantially the form set forth in Exhibit I (the "Transferor Certificate") and
either (i) there shall be delivered to the Trustee a letter in substantially the
form of Exhibit J (the "Rule 144A Letter") or Exhibit K (the "Non-Rule 144A
Investment Letter") or (ii) in the case of the Class X Certificates, there shall
be delivered to the Trustee at the expense of the transferor an Opinion of
Counsel that such transfer may be made without registration under the Securities
Act. In the event that a transfer of a Private Certificate which is a Book-Entry
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer will be deemed to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will be
deemed to have made as of the transfer date each of the certifications set forth
in the Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate. A transferee of any
Private Certificates who is not a "qualified institutional buyer" as that term
is defined in Rule 144A of the Securities Act must take delivery of such Private
Certificates in definitive form. The Depositor shall provide to any Holder of a
Private Certificate and any prospective transferee designated by any such
Holder, information regarding the related Certificates and the Mortgage Loans
and such other information as shall be necessary to satisfy the condition to
eligibility set forth in Rule 144A(d)(4) for transfer of any such Certificate
without registration thereof under the Securities Act pursuant to the
registration exemption provided by Rule 144A. The Trustee and the Servicer shall
cooperate with the Depositor in providing the Rule 144A information referenced
in the preceding sentence, including providing to the Depositor such information
regarding the Certificates, the Mortgage Loans and other matters regarding the
Trust Fund as the Depositor shall reasonably request to meet its obligation
under the preceding sentence. Each Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee and
the Depositor and the Servicer against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
Except with respect to (i) the transfer of a Residual Certificate,
Class X, Class C or Class P Certificates to the Depositor or an Affiliate of the
Depositor, (ii) the transfer of the Class X or Class P Certificates to the NIM
Issuer or the NIM Trustee, or (iii) a transfer of the Class X or Class P
Certificates from the NIM Issuer or the NIM Trustee to the Depositor or an
Affiliate of the Depositor, no transfer of an ERISA-Restricted Certificate shall
be made unless the Trustee shall have received either (i) a representation from
the transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee (in the event such Certificate is a Private
Certificate or a Residual Certificate, such requirement is satisfied only by the
Trustee's receipt of a representation letter from the transferee substantially
in the form of Exhibit I), to the effect that such transferee is not an employee
benefit plan or arrangement subject to Section 406 of ERISA, a plan subject to
Section 4975 of the Code or a plan subject to any Federal, state or local law
("Similar Law") materially similar to the foregoing provisions of ERISA or the
Code, nor a Person acting on behalf of any such plan or arrangement nor using
the assets of any such plan or arrangement (collectively, a "Plan") to effect
such transfer, (ii) in the case of an ERISA-Restricted Certificate other than a
Residual Certificate, a Class C Certificate or a Class P Certificate that has
been the subject of an ERISA-Qualifying Underwriting and the purchaser is an
insurance company, a representation that the purchaser is an insurance company
that is purchasing such Certificates with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and
holding of such Certificates are covered under Sections I and III of PTCE 95-60
or (iii) in the case of any such ERISA-Restricted Certificate other than a
Residual Certificate, a Class C Certificate or a Class P Certificate presented
for registration in the name of a Plan, an Opinion of Counsel satisfactory to
the Trustee, which Opinion of Counsel shall not be an expense of the Trustee,
the Depositor, the Servicer or the Trust Fund, addressed to the Trustee, to the
effect that the purchase or holding of such ERISA-Restricted Certificate will
not constitute or result in a non-exempt prohibited transaction within the
meaning of ERISA, Section 4975 of the Code or any Similar Law and will not
subject the Trustee, the Depositor or the Servicer to any obligation in addition
to those expressly undertaken in this Agreement or to any liability. For
purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a 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 Trustee
by the transferee's (including an initial acquirer's) acceptance of the
ERISA-Restricted Certificates. Notwithstanding anything else to the contrary
herein, (a) any purported transfer of an ERISA Restricted Certificate, other
than a Class C Certificate, a Class P Certificate or a Residual Certificate, to
or on behalf of an employee benefit plan subject to ERISA, the Code or Similar
Law without the delivery to the Trustee of an Opinion of Counsel satisfactory to
the Trustee as described above shall be void and of no effect and (b) any
purported transfer of a Class P Certificate, Class C Certificate or Residual
Certificate to a transferee that does not make the representation in clause (i)
above shall be void and of no effect.
The Residual Certificates, Class C and Class P Certificates may
not be sold to any employee benefit plan subject to Title I of ERISA, any plan
subject to Section 4975 of the Code, or any plan subject to any Similar Law or
any Person investing on behalf of or with plan assets of such Plan.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Trustee shall be under no liability to any Person for
any registration of transfer of any ERISA-Restricted Certificate that is in fact
not permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer was
registered by the Trustee in accordance with the foregoing requirements.
As long as the Interest Rate Swap Agreement is in effect, each
beneficial owner of a Certificate (other than an ERISA Restricted Certificate),
or any interest therein, shall be deemed to have represented that either (i) it
is not a Plan or (ii) the acquisition and holding of the Certificate are
eligible for the exemptive relief available under at least one of the
Investor-Based Exemptions.
(c) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee
under subparagraph (b) above, the Trustee shall have been furnished with
an affidavit (a "Transfer Affidavit") of the initial owner or the
proposed transferee in the form attached hereto as Exhibit H;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in the
purported Transferee. If any purported transferee shall become a Holder
of a Residual Certificate in violation of the provisions of this Section
5.02(c), then the last preceding Permitted Transferee shall be restored
to all rights as Holder thereof retroactive to the date of registration
of Transfer of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by Section 5.02(b) and this
Section 5.02(c) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Transfer was
registered after receipt of the related Transfer Affidavit, Transferor
Certificate and the Rule 144A Letter. The Trustee shall be entitled but
not obligated to recover from any Holder of a Residual Certificate that
was in fact not a Permitted Transferee at the time it became a Holder or,
at such subsequent time as it became other than a Permitted Transferee,
all payments made on such Residual Certificate at and after either such
time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of
such Certificate; and
(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information
necessary to compute any tax imposed under Section 860E(e) of the Code as
a result of a Transfer of an Ownership Interest in a Residual Certificate
to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth
in this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which Opinion
of Counsel shall not be an expense of the Trust Fund, the Depositor, the
Trustee, or the Servicer, to the effect that the elimination of such
restrictions will not cause any Trust REMIC to fail to qualify as a REMIC at any
time that the Certificates are Outstanding or result in the imposition of any
tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any Ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement which, based on an Opinion of
Counsel furnished to the Trustee, is reasonably necessary (a) to ensure that the
record ownership of, or any beneficial interest in, a Residual Certificate is
not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Trustee shall deal with the
Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and requests
and directions for and votes of such representatives shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(vi) the Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants and furnished by the Depository Participants with respect to
indirect participating firms and persons shown on the books of such indirect
participating firms as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor, or (y) the Depositor notifies the
Depository of its intent to terminate the book-entry system through the
Depository and, upon receipt of notice of such intent from the Depository, the
Depository Participants holding beneficial interests in the Book-Entry
Certificates agree to initiate such termination, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully-registered Certificates (the
"Definitive Certificates") to Certificate Owners requesting the same. Upon
surrender to the Trustee of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Trustee shall issue the Definitive Certificates. None of the Servicer, the
Depositor or the Trustee shall be liable for any delay in delivery of such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. The Depositor shall provide the Trustee with an adequate
inventory of Certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Trustee, to the extent applicable with
respect to such Definitive Certificates and the Trustee shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Trustee shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Trustee and the
Certificate Registrar, duly executed by the Certificateholder or his attorney
duly authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Certificate Registrar in accordance with its customary
practice. No service charge shall be made for any registration of transfer or
exchange of Private Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Private
Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Depositor, the Servicer, and the
Trustee such security or indemnity as may be required by them to hold each of
them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith. Any replacement Certificate issued pursuant to
this Section 5.03 shall constitute complete and indefeasible evidence of
ownership, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners. The Servicer, the Trustee, the
Depositor, and any agent of the Servicer, the Depositor or the Trustee may treat
the Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and none of the Servicer, the
Trustee, the Depositor or any agent of the Servicer, the Depositor or the
Trustee shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Trustee, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor or the Servicer shall request such information in writing from the
Trustee, then the Trustee shall, within ten Business Days after the receipt of
such request, provide the Depositor, the Servicer or such Certificateholders at
such recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Trustee, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Trustee shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Trustee will
maintain or cause to be maintained at its expense an office or offices or agency
or agencies in the United States where Certificates may be surrendered for
registration of transfer or exchange. The Trustee initially designates the
offices of its agent located at DB Services Tennessee, 000 Xxxxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Transfer Unit, for purposes of
Certificate transfers, and DB Services Tennessee, 000 Xxxxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Securities Payment Unit, for
purposes of the surrender of Certificates for the final distribution. The
Trustee shall give prompt written notice to the Certificateholders of any change
in such location of any such office or agency.
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
Section 6.01 Respective Liabilities of the Depositor and the
Servicer. The Depositor and the Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by them herein.
Section 6.02 Merger or Consolidation of the Depositor or the
Servicer. (a) The Depositor and the Servicer will each keep in full effect its
existence, rights and franchises as a Delaware corporation, under the laws of
the United States or under the laws of one of the states thereof and will each
obtain and preserve its qualification to do business as a foreign corporation or
limited partnership, as applicable, in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
(b) Any Person into which the Depositor or the Servicer may be
merged or consolidated, or any Person resulting from any merger or consolidation
to which the Depositor or the Servicer shall be a party, or any Person
succeeding to the business of the Depositor or the Servicer, shall be the
successor of the Depositor or the Servicer, as the case may be, hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or surviving Person to the Servicer shall
be qualified to sell mortgage loans to, and to service mortgage loans on behalf
of, Xxxxxx Xxx or Xxxxxxx Mac, and meets the requirements of Section 7.02, and
provided, further, that such merger, consolidation or succession does not
adversely affect the then current rating or ratings on the LIBOR Certificates.
As a condition to the succession to the Servicer under this Agreement by any
Person (i) into which the Servicer may be merged or consolidated, or (ii) which
may be appointed as a successor to the Servicer, such Servicer shall provide to
the Depositor, at least 5 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably necessary
to enable the Trustee, pursuant to Section 8.12(g), to accurately and timely
report the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if
such reports under the Exchange Act are required to be filed under the Exchange
Act).
Section 6.03 Limitation on Liability of the Depositor, the
Servicer and Others. Neither the Depositor, the Servicer nor any of their
respective directors, officers, employees or agents shall be under any liability
to the Certificateholders for any action taken or for refraining from the taking
of any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor, the Servicer or any such Person against any breach of representations
or warranties made by it herein or protect the Depositor, the Servicer or any
such Person from any liability which would otherwise be imposed by reasons of
willful misfeasance, bad faith or negligence (or gross negligence in the case of
the Depositor) in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. The Depositor, the Servicer and any
director, officer, employee or agent of the Depositor and the Servicer may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder. The Depositor,
the Sponsor, the Servicer and any director, officer, employee, Affiliate or
agent of the Depositor, the Sponsor and the Servicer shall be indemnified by the
Trust Fund and held harmless against any loss, liability or expense incurred in
connection with any audit, controversy or judicial proceeding relating to a
governmental taxing authority or any legal action relating to this Agreement or
the Certificates or any other unanticipated or extraordinary expense, other than
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence (or gross negligence in the case of the Depositor) in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. Neither the Depositor nor the Servicer shall
be under any obligation to appear in, prosecute or defend any legal action that
is not incidental to its respective duties hereunder and which in its opinion
may involve it in any expense or liability; provided, however, that each of the
Depositor and the Servicer may in its discretion undertake any such action (or
direct the Trustee to undertake such actions pursuant to Section 2.07 for the
benefit of the Certificateholders) that it may deem necessary or desirable in
respect of this Agreement and the rights and duties of the parties hereto and
interests of the Trustee and the Certificateholders hereunder. In such event,
the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Depositor, and the Servicer shall be entitled to be reimbursed therefor out of
the Collection Account.
Section 6.04 Limitation on Resignation of the Servicer. Subject to
the applicable provisions of this Agreement, the Servicer shall not assign this
Agreement or resign from the obligations and duties hereby imposed on it except
(i) by mutual consent of the Servicer, the Depositor and the Trustee (ii) upon
the determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Servicer or (iii) upon
satisfaction of the following conditions: (a) the Servicer has proposed a
successor servicer to the Trustee in writing; and (b) each Rating Agency shall
have delivered a letter to the Trustee prior to the appointment of the successor
servicer stating that the proposed appointment of such successor servicer as
Servicer hereunder will not result in the reduction or withdrawal of the then
current rating of the Regular Certificates or the ratings that are in effect.
Any such determination permitting the resignation of the Servicer under clause
(ii) above shall be evidenced by an Opinion of Counsel (which Opinion shall not
be an expense of the Trustee or the Trust Fund) to such effect delivered to the
Depositor and the Trustee which Opinion of Counsel shall be in form and
substance acceptable to the Depositor and the Trustee. No such resignation shall
become effective until a successor shall have assumed the Servicer's
responsibilities and obligations hereunder.
Section 6.05 Additional Indemnification by the Servicer; Third
Party Claims.
(a) The Servicer shall indemnify the Depositor, the Sponsor and
the Trustee and any Affiliate, director, officer, employee or agent of the
Depositor and the Trustee and hold each of them harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain in any way related to (i) any breach by the
Servicer of any of its representations and warranties referred to in Section
2.03(a), (ii) any error in any tax or information return prepared by the
Servicer, or (iii) the failure of the Servicer to perform its duties and service
the Mortgage Loans in compliance with the terms of this Agreement (including,
without limitation, the failure to deliver accurate and complete information on
a timely basis pursuant to Section 4.03(d)). The Servicer shall immediately
notify the Depositor and the Trustee in writing if such claim is made by a third
party with respect to this Agreement or the Mortgage Loans, assume (with the
prior written consent of the Depositor and the Trustee) the defense of any such
claim and pay all expenses in connection therewith, including reasonable counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or the Depositor or the Trustee in respect of such claim.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Servicer shall indemnify the Depositor, the Sponsor, the Trustee
and any director, officer, employee or agent of the Depositor, the Sponsor or
the Trustee and hold them harmless against any and all claims, economic losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other related costs, fees and expenses that
any of them actually sustain, in each case that are likely foreseeable and
directly related to any failure by the Servicer or any Subservicer engaged by
such Servicer or any Subcontractor utilized by the Servicer to deliver any
information, report, certification or accountants' letter when and as required
under Sections 3.22, 3.23, 6.02 or 8.12, including without limitation any
failure by such Servicer to identify pursuant to Section 3.02(e) any
Subcontractor "participating in the servicing function" within the meaning of
Item 1122 of Regulation AB.
(c) If the indemnification provided for in this Section 6.05 is
unavailable or insufficient to hold harmless any Person entitled to
indemnification thereunder, then the Servicer shall contribute to the amount
paid or payable to the party to be indemnified as a result of the losses,
claims, damages or liabilities of such Person in such proportion as is
appropriate to reflect the relative fault of such Person, on the one hand, and
such Servicer, on the other, in connection with a breach of such Servicer's
obligations pursuant to this Section 6.05. This Section 6.05 shall survive the
termination of this Agreement or the earlier resignation or removal of the
Servicer.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. "Event of Default," wherever used
herein, means any one of the following events:
(a) any failure by the Servicer to remit to the Trustee any
payment required to be made under the terms of this Agreement which continues
unremedied for a period of one Business Day after the date upon which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Depositor, or by the Trustee, or to the Servicer, the
Depositor and the Trustee by Certificateholders entitled to at least 25% of the
Voting Rights; or
(b) any failure on the part of the Servicer duly to observe or
perform in any material respect any other of the covenants or agreements on the
part of the Servicer set forth in this Agreement, which continues unremedied for
a period of thirty days (except that such number of days shall be ten days in
the case of a failure to observe or perform any of the obligations set forth in
Sections 3.02, 3.22, 3.23, 6.02, 6.04 or 8.12; provided, however, that in the
event that the Commission grants an extension of time to the Depositor with
respect to the Exchange Act filings referenced in Section 8.12(a)) after the
earlier of (i) the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Servicer by the Depositor or
by the Trustee, or to the Servicer, the Depositor and the Trustee by
Certificateholders of Certificates entitled to at least 25% of the Voting Rights
and (ii) actual knowledge of such failure by a Servicing Officer of the
Servicer; provided, however, that in the case of a failure or breach that cannot
be cured within 30 days after notice or actual knowledge by the Servicer, the
cure period may be extended for an additional 30 days upon delivery by the
Servicer to the Trustee of a certificate to the effect that the Servicer
believes in good faith that the failure or breach can be cured within such
additional time period and the Servicer is diligently pursuing remedial action;
or
(c) the failure by the Servicer, in any month, to deliver the
Servicer Remittance Report to the Trustee, and such failure continues uncured
for more than 30 days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by the
Depositor or by the Trustee, or to the Servicer, the Depositor and the Trustee
by Certificateholders entitled to at least 25% of the Voting Rights; or
(d) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(e) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property; or
(f) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(g) with respect to the Servicer, National City Bank fails to
maintain a minimum net worth of $25,000,000; or
(h) any failure of the Servicer to make any P&I Advance on any
Remittance Date required to be made from its own funds pursuant to Section 4.01
which continues unremedied for one Business Day immediately following the
Remittance Date; or
(i) with respect to the Servicer, NCHLS attempts to assign its
right to servicing compensation under this Agreement or it attempts, without the
consent of the Depositor, to sell or otherwise dispose of all or substantially
all of its property or assets or to assign all or a portion of its servicing
responsibilities or to delegate its duties under this Agreement; or
(j) a breach of any representation and warranty of the Servicer
referred to in Section 2.03(a), which materially and adversely affects the
interests of the Certificateholders and which continues unremedied for a period
of thirty days after the date upon which written notice of such breach is given
to the Servicer by the Trustee or by the Depositor, or to the Servicer, the
Trustee and the Depositor by Certificateholders entitled to at least 25% of the
Voting Rights in the Certificates; or
(k) any reduction, withdrawal or qualification of the servicer
rating of the Servicer by any rating agency which results in the inability of
the Servicer to act as a primary or special servicer for any mortgage-backed or
asset-backed transaction rated or to be rated by any rating agency.
If an Event of Default described in clauses (a) through (k) of
this Section 7.01 shall occur or if an Event of Default under the Xxxxx Fargo
Agreements shall occur, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Trustee may, or at the
direction of Certificateholders entitled to a majority of the Voting Rights the
Trustee shall, by notice in writing to the Servicer or the Xxxxx Fargo Servicer,
as applicable (with a copy to each Rating Agency), terminate all of the rights
and obligations of the Servicer under this Agreement or the Xxxxx Fargo Servicer
under the Xxxxx Fargo Agreements, as applicable, and in and to the Mortgage
Loans serviced by the Servicer or the Xxxxx Fargo Servicer, as applicable, and
the proceeds thereof, other than its rights as a Certificateholder hereunder;
provided, however, that the Trustee shall not be required to give written notice
to the Servicer of the occurrence of an Event of Default described in clauses
(b) through (h), (j) and (k) of this Section 7.01, or to the Xxxxx Fargo
Servicer of the corresponding Event of Default (if any) under the Xxxxx Fargo
Agreement, unless and until a Responsible Officer of the Trustee has actual
knowledge of the occurrence of such an Event of Default. In the event that a
Responsible Officer of the Trustee has actual knowledge of the occurrence of an
Event of Default described in clause (a) of this Section 7.01, or a
corresponding Event of Default under the Xxxxx Fargo Agreements, the Trustee
shall give written notice to the Servicer or the Xxxxx Fargo Servicer, as
applicable, of the occurrence of such an event within one Business Day of the
first day on which such Responsible Officer obtains actual knowledge of such
occurrence; provided that failure to give such notice shall not constitute a
waiver of such Event of Default. The Trustee, upon a Responsible Officer having
actual knowledge of such default, shall deliver a written notice to the Servicer
or the Xxxxx Fargo Servicer, as applicable, of the default on any Remittance
Date on which the Servicer or the Xxxxx Fargo Servicer, as applicable, fails to
make any deposit or payment required pursuant to this Agreement (including, but
not limited to Advances, to the extent required by this Agreement or the Xxxxx
Fargo Agreements, as applicable); provided, however, that if an Event of Default
occurs due to the failure of the Servicer or the Xxxxx Fargo Servicer, as
applicable, to make an Advance to the extent required, the Trustee, as successor
Servicer, or another successor Servicer shall, prior to the next Distribution
Date, immediately make such Advance. Any such notice to the Servicer or the
Xxxxx Fargo Servicer, as applicable, shall also be given to each Rating Agency
and the Depositor. Notwithstanding any other provision of this Agreement, any
remedy with respect to clauses (a) or (h) of this Section 7.01 shall be
effective only if taken no later than 8:00 AM Eastern time on the Business Day
immediately following (i) with respect to clause (a) of this Section 7.01, the
date of written notice to the Servicer, or (ii) with respect to clause (h) of
this Section 7.01, the related Remittance Date. On and after the receipt by the
Servicer or the Xxxxx Fargo Servicer, as applicable, of such written notice, all
authority and power of the Servicer hereunder or the Xxxxx Fargo Servicer under
the Xxxxx Fargo Agreements, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the Trustee. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. Unless expressly provided in such written notice, no such termination
shall affect any obligation of the Servicer to pay amounts owed pursuant to
Article VIII. The Servicer agrees to cooperate with the Trustee in effecting the
termination of the Servicer's responsibilities and rights hereunder, including,
without limitation, the transfer to the Trustee of all cash amounts which shall
at the time be credited to the Collection Account of such predecessor Servicer,
or thereafter be received with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the Servicer
hereunder, the Servicer shall be entitled to receive from the Trust Fund, prior
to transfer of its servicing obligations hereunder, payment of all accrued and
unpaid portion of the Servicing Fees to which the Servicer would have been
entitled and to continue to receive reimbursement for all outstanding P&I
Advances and Servicing Advances, including Servicing Advances incurred prior to
but not invoiced until after the date of termination, in accordance with the
terms of this Agreement. In addition, the Servicer shall continue to be entitled
to the benefits of Section 6.03, notwithstanding any termination hereunder, with
respect to events occurring prior to such termination.
Section 7.02 Trustee to Act; Appointment of Successor Servicer. On
the day and after the time the Trustee gives, and the Servicer or the Xxxxx
Fargo Servicer, as applicable, receives, a notice of termination pursuant to
Section 7.01 or pursuant to the Xxxxx Fargo Agreements, as applicable, the
Trustee shall, subject to and to the extent provided in Sections 3.06 and 7.03,
or pursuant to the Xxxxx Fargo Agreements, as applicable, and subject to the
rights of the Trustee to appoint a successor Servicer, be the successor to the
Servicer in its capacity as servicer under this Agreement or the Xxxxx Fargo
Agreements and the transactions set forth or provided for herein and shall
immediately assume all of the obligations of the Servicer or the Xxxxx Fargo
Servicer to make P&I Advances and Servicing Advances as successor Servicer and
shall assume and be subject to all the other responsibilities, duties and
liabilities relating thereto placed on the Servicer or the Xxxxx Fargo Servicer,
as applicable, by the terms and provisions hereof or under the Xxxxx Fargo
Agreements and applicable law as soon as practicable but in no event later than
90 days after the receipt by the Servicer or the Xxxxx Fargo Servicer of the
notice of termination pursuant to Section 7.01 or pursuant to the Xxxxx Fargo
Agreements, as applicable. As compensation therefor, the Trustee shall be
entitled to all funds relating to the Mortgage Loans that the Servicer or the
Xxxxx Fargo Servicer would have been entitled to charge to the Collection
Account if the Servicer or the Xxxxx Fargo Servicer had continued to act
hereunder or thereunder including, if the Servicer or the Xxxxx Fargo Servicer
was receiving the Servicing Fee, the Servicing Fee and the income on investments
or gain related to the Collection Account (in addition to income on investments
or gain related to the Distribution Account for the benefit of the Trustee as
provided herein). Notwithstanding the foregoing, if the Trustee has become the
successor to the Servicer or the Xxxxx Fargo Servicer in accordance with this
Section 7.02 or in accordance with the Xxxxx Fargo Agreements, the Trustee may,
if it shall be unwilling to so act, or shall, if it is prohibited by applicable
law from making P&I Advances and Servicing Advances pursuant to Section 4.01 or
pursuant to the Xxxxx Fargo Agreements, as applicable, or if it is otherwise
unable to so act, or, at the written request of Certificateholders entitled to a
majority of the Voting Rights, appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution the
appointment of which does not adversely affect the then current rating of the
Certificates by each Rating Agency, as the successor to the Servicer hereunder
or the Xxxxx Fargo Servicer under the Xxxxx Fargo Agreements in the assumption
of all or any part of the responsibilities, duties or liabilities of the
Servicer hereunder or the Xxxxx Fargo Servicer under the Xxxxx Fargo Agreements.
No such appointment of a successor to the Servicer hereunder or the Xxxxx Fargo
Servicer under the Xxxxx Fargo Agreements shall be effective until the Depositor
shall have consented thereto. Any successor to the Servicer or the Xxxxx Fargo
Servicer shall be an institution which is a Xxxxxx Xxx- and Xxxxxxx Mac-approved
seller/servicer in good standing, which has a net worth of at least $30,000,000,
which is willing to service the Mortgage Loans and which executes and delivers
to the Depositor and the Trustee an agreement accepting such delegation and
assignment, containing an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the terminated Servicer
or the Xxxxx Fargo Servicer, as applicable, (other than liabilities of the
terminated Servicer under Section 6.03 incurred prior to termination of the
Servicer under Section 7.01), with like effect as if originally named as a party
to this Agreement; provided, that each Rating Agency acknowledges that its
rating of the Certificates in effect immediately prior to such assignment and
delegation will not be qualified or reduced, as a result of such assignment and
delegation. Pending appointment of a successor to the Servicer hereunder or the
Xxxxx Fargo Servicer under the Xxxxx Fargo Agreements, the Trustee, unless the
Trustee is prohibited by law from so acting, shall, subject to Section 3.05, act
in such capacity as hereinabove provided. In connection with such appointment
and assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it, the Depositor and such
successor shall agree; provided, however, that no such compensation shall be in
excess of the Servicing Fee and amounts paid to the predecessor Servicer or the
predecessor Xxxxx Fargo Servicer from investments. The Trustee and such
successor shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession. Neither the Trustee nor any other
successor Servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure of
the predecessor Servicer to deliver or provide, or any delay in delivering or
providing, any cash, information, documents or records to it.
In the event that the Servicer is terminated pursuant to Section
7.01, such terminated Servicer shall provide notices to the Mortgagors, transfer
the Servicing Files to a successor Servicer and pay all of its own out-of-pocket
costs and expenses related to such obligations. In addition, all Servicing
Transfer Costs incurred by parties other than the terminated Servicer shall be
paid by the terminated Servicer promptly upon presentation of reasonable
documentation of such costs. If such predecessor Servicer defaults in its
obligations to pay such costs, such costs shall be paid by the successor
Servicer (in which case the successor Servicer shall be entitled to
reimbursement therefor from the Trust Fund or if the successor Servicer fails to
pay, the Trustee pays such amounts from the Trust Fund.). If the Trustee is the
predecessor Servicer (except in the case where the Trustee in its role as
successor Servicer is being terminated pursuant to Section 7.01 by reason of an
Event of Default caused solely by the Trustee as the successor Servicer and not
by the predecessor Servicer's actions or omissions), such costs shall be paid by
the prior terminated Servicer promptly upon presentation of reasonable
documentation of such costs.
Any successor to the Servicer as servicer shall give notice to the
Mortgagors of such change of Servicer, in accordance with applicable federal and
state law, and shall, during the term of its service as Servicer, maintain in
force the policy or policies that the Servicer is required to maintain pursuant
to Section 3.13.
Any such successor Servicer shall be required to satisfy the
requirements of a successor Servicer under this Section 7.02.
Section 7.03 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to the Servicer or the Xxxxx Fargo
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default,
the Trustee shall transmit by mail to all Certificateholders and each Rating
Agency notice of each such Event of Default hereunder known to the Trustee,
unless such Event of Default shall have been cured or waived.
Section 7.04 No Termination Without Cause. The Trustee shall not
exercise any right to terminate the Xxxxx Fargo Servicer without cause under the
Xxxxx Fargo Agreements.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of an Event of Default and after the curing of all Events of Default
that may have occurred, shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement. In case an Event of
Default has occurred and remains uncured, the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are in
the form required by this Agreement. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own bad faith or willful misfeasance.
Unless an Event of Default known to the Trustee has occurred and
is continuing,
(a) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of the duties and obligations specifically set
forth in this Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee, and the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement which it believed in good faith
to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of the
Voting Rights relating to the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Agreement.
The Trustee shall be permitted to utilize one or more
Subcontractors for the performance of certain of its obligations under this
Agreement, provided that the Trustee complies with Section 3.02(e) as if the
Trustee were a "Servicer" pursuant to that Section. The Trustee shall indemnify
the Depositor, the Sponsor and any director, officer, employee or agent of the
Depositor or the Sponsor and hold them harmless against any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees and expenses that
any of them may sustain in any way related to the failure of the Trustee to
perform any of its obligations under Section 3.22 or Section 3.23, including
without limitation any failure by the Trustee to identify pursuant to Section
3.02(e) any Subcontractor that is a Servicing Function Participant. This
indemnity shall survive the termination of this Agreement or the earlier
resignation or removal of the Trustee.
Section 8.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected
in acting or refraining from acting upon any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties and the Trustee shall have no responsibility to
ascertain or confirm the genuineness of any signature of any such party or
parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(c) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement, nor shall
the Trustee be liable for acts or omissions of the other parties to this
Agreement or any ancillary agreement thereto, the Responsible Party, the Sponsor
or the Swap Provider or any of their respective Affiliates;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to each
Class of Certificates;
(e) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own
funds or otherwise incur any financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security and except with respect to the investment of funds in the Distribution
Account not made at the direction of the Depositor during the Trustee Float
Period);
(h) the Trustee shall not be deemed to have knowledge of an Event
of Default until a Responsible Officer of the Trustee shall have received
written notice thereof except as otherwise provided in Section 7.01; 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.
Section 8.03 Trustee Not Liable for Certificates or Mortgage
Loans. The recitals contained herein and in the Certificates shall be taken as
the statements of the Depositor and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan or
related document other than with respect to the Trustee's execution and
authentication of the Certificates. The Trustee shall not be accountable for the
use or application by the Depositor or the Servicer of any funds paid to the
Depositor or the Servicer in respect of the Mortgage Loans or deposited in or
withdrawn from the Collection Account by the Depositor or the Servicer.
The Trustee shall have no responsibility for filing or recording
any financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder (unless the Trustee shall have become the successor
Servicer).
The Trustee executes the Certificates not in its individual
capacity but solely as Trustee of the Trust Fund created by this Agreement, in
the exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Trustee on behalf of the Trust Fund in the Certificates is made and intended not
as a personal undertaking or agreement by the Trustee but is made and intended
for the purpose of binding only the Trust Fund.
Section 8.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
Section 8.05 Trustee's Fees and Expenses. As compensation for its
activities under this Agreement, the Trustee may withdraw from the Distribution
Account on each Distribution Date the Trustee Fee for the Distribution Date and,
during the Trustee Float Period, any interest or investment income earned on
funds deposited in the Distribution Account. The Trustee and any director,
officer, employee, or agent of the Trustee shall be indemnified by the Trust
Fund and held harmless against any loss, liability, or expense (including
reasonable attorneys' fees) incurred in connection with any claim or legal
action relating to:
(a) this Agreement,
(b) the Certificates or the Interest Rate Swap Agreement, or
(c) the performance of any of the Trustee's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any breach of the
Servicer's obligations in connection with this Agreement for which the Servicer
has performed its obligation to indemnify the Trustee pursuant to Section 6.05,
(ii) resulting from any breach of the Responsible Party's obligations in
connection with the Responsible Party Agreements for which the Responsible Party
has performed its obligation to indemnify the Trustee pursuant to the
Responsible Party Agreements or (iii) 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, to the extent that the Trustee must engage them to perform services
under this Agreement.
Except as otherwise provided in this Agreement or a separate
letter agreement between the Trustee and the Depositor, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
paying agent under this Agreement or for any other expenses incurred by the
Trustee; provided, however, no expense shall be reimbursed hereunder if it would
not constitute an "unanticipated expense incurred by the REMIC" within the
meaning of the REMIC Provisions.
Section 8.06 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation or association organized and doing
business under the laws of a state or the United States of America, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $50,000,000, subject to supervision or examination by
federal or state authority and with a credit rating which would not cause any of
the Rating Agencies to reduce their respective then current ratings of the
Certificates (or having provided such security from time to time as is
sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
entity serving as Trustee may have normal banking and trust relationships with
the Depositor and its Affiliates or the Servicer and the Xxxxx Fargo Servicer
and their respective Affiliates; provided, however, that such entity cannot be
an Affiliate of the Depositor, the Servicer or the Xxxxx Fargo Servicer other
than the Trustee in its role as successor to the Servicer or the Xxxxx Fargo
Servicer.
Section 8.07 Resignation and Removal of the Trustee. The Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice of resignation to the Depositor, the Servicer, the Xxxxx
Fargo Servicer and each Rating Agency not less than 60 days before the date
specified in such notice, when, subject to Section 8.08, such resignation is to
take effect, and acceptance by a successor trustee in accordance with Section
8.08 meeting the qualifications set forth in Section 8.06. If no successor
trustee meeting such qualifications shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in
accordance with Section 8.06 and shall fail to resign after written request
thereto by the Depositor, or if at any time the Trustee shall become incapable
of acting, or shall be adjudged as bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, or a tax is imposed with respect
to the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor may remove the Trustee and appoint a
successor trustee by written instrument, in triplicate, one copy of which shall
be delivered to the Trustee, one copy to the Servicer, one copy to the Xxxxx
Fargo Servicer and one copy to the successor trustee.
The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. The
successor trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.08.
Section 8.08 Successor Trustee. Any successor trustee appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee and the Servicer an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The Depositor, the
Servicer and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor trustee all such rights,
powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided
in this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.09 Merger or Consolidation of the Trustee. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.06
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding. In
connection with the succession to the Trustee under this Agreement by any Person
(i) into which the Trustee may be merged or consolidated, or (ii) which may be
appointed as a successor to the Trustee, the Trustee shall notify the Depositor
of such succession or appointment and shall furnish to the Depositor in writing
and in form and substance reasonably satisfactory to the Depositor, all
information reasonably necessary for the Trustee to accurately and timely
report, pursuant to Section 8.12(g), the event under Item 6.02 of Form 8-K
pursuant to the Exchange Act (if such reports under the Exchange Act are
required to be filed under the Exchange Act).
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer or the Xxxxx Fargo Servicer, as applicable, and the
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Fund, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund or any part thereof, whichever
is applicable, and, subject to the other provisions of this Section 8.10, such
powers, duties, obligations, rights and trusts as the Servicer or the Xxxxx
Fargo Servicer, as applicable, and the Trustee may consider appropriate. If the
Servicer or the Xxxxx Fargo Servicer, as applicable, shall not have joined in
such appointment within 15 days after the receipt by the Servicer or the Xxxxx
Fargo Servicer, as applicable, of a request to do so, or in the case an Event of
Default shall have occurred and be continuing, the Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06 and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee under this Agreement
to advance funds on behalf of the Servicer or the Xxxxx Fargo Servicer, shall be
conferred or imposed upon and exercised or performed by the Trustee and such
separate trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether as
Trustee hereunder or as successor to the Servicer hereunder or the Xxxxx Fargo
Servicer under the Xxxxx Fargo Agreements), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the applicable Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because
of any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the separate trustees and co-trustees,
when and as effectively as if given to each of them. Every instrument appointing
any separate trustee or co-trustee shall refer to this Agreement and the
conditions of this Article VIII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute
the Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be made,
as set forth in the Preliminary Statement, shall constitute, and that the
conduct of matters relating to such assets shall be such as to qualify such
assets as, a "real estate mortgage investment conduit" as defined in and in
accordance with the REMIC Provisions. In furtherance of such intention, the
Trustee covenants and agrees that it shall act as agent (and the Trustee is
hereby appointed to act as agent) on behalf of each Trust REMIC described in the
Preliminary Statement and that in such capacity it shall:
(a) prepare, sign and file in a timely manner, a U.S. Real Estate
Mortgage Investment Conduit (REMIC) Income Tax Return (Form 1066 or any
successor form adopted by the Internal Revenue Service) and prepare and file
with the Internal Revenue Service and applicable state or local tax authorities
income tax or information returns for each taxable year with respect to each
Trust REMIC described in the Preliminary Statement containing such information
and at the times and in the manner as may be required by the Code or state or
local tax laws, regulations, or rules, and furnish to Certificateholders the
schedules, statements or information at such times and in such manner as may be
required thereby;
(b) within thirty days of the Closing Date, the Trustee will apply
for an employer identification number from the Internal Revenue Service via Form
SS-4 or any other acceptable method for all tax entities and shall also furnish
to the Internal Revenue Service, on Form 8811 or as otherwise may be required by
the Code, the name, title, address, and telephone number of the person that the
Holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form, and
update such information at the time or times in the manner required by the Code;
(c) make an election that each of Pooling-Tier REMIC-1,
Pooling-Tier REMIC-2, the Lower-Tier REMIC, the Upper-Tier REMIC and the Class X
REMIC be treated as a REMIC on the federal tax return for its first taxable year
(and, if necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any original
issue discount using the prepayment assumption (as described in the Prospectus
Supplement);
(e) provide information necessary for the computation of tax
imposed on the Transfer of a Residual Certificate to a Person that is not a
Permitted Transferee (a "Non-Permitted Transferee"), or an agent (including a
broker, nominee or other middleman) of a Non-Permitted Transferee, or a
pass-through entity in which a Non-Permitted Transferee is the record holder of
an interest (the reasonable cost of computing and furnishing such information
may be charged to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are Outstanding so as
to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any Trust
REMIC created hereunder;
(h) pay, from the sources specified in the second to last
paragraph of this Section 8.11, the amount of any federal or state tax,
including prohibited transaction taxes as described below, imposed on each Trust
REMIC before its termination when and as the same shall be due and payable (but
such obligation shall not prevent the Trustee or any other appropriate Person
from contesting any such tax in appropriate proceedings and shall not prevent
the Trustee from withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings);
(i) cause federal, state or local income tax or information
returns to be signed by the Trustee or such other Person as may be required to
sign such returns by the Code or state or local laws, regulations or rules; and
(j) maintain records relating to each of the Trust REMICs,
including the income, expenses, assets, and liabilities thereof on a calendar
year basis and on the accrual method of accounting and the fair market value and
adjusted basis of the assets determined at such intervals as may be required by
the Code, as may be necessary to prepare the foregoing returns, schedules,
statements or information.
The Holder of the largest Percentage Interest of the Class RC
Certificates shall act as Tax Matters Person for Pooling-Tier REMIC-1, the
holder of the largest Percentage Interest of the Class R Certificates shall act
as the Tax Matters Person for Pooling-Tier REMIC-2, the Lower-Tier REMIC and the
Upper-Tier REMIC, and the Holder of the largest Percentage Interest of the Class
RX Certificates shall act as Tax Matters Person for the Class X REMIC, in each
case, within the meaning of Treasury Regulations Section 1.860F-4(d), and the
Trustee is hereby designated as agent of such Certificateholders for such
purpose (or if the Trustee is not so permitted, such Holder shall be the Tax
Matters Person in accordance with the REMIC Provisions). In such capacity, the
Trustee shall, as and when necessary and appropriate, represent any Trust REMIC
in any administrative or judicial proceedings relating to an examination or
audit by any governmental taxing authority, request an administrative adjustment
as to any taxable year of any Trust REMIC, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating to
any tax item of any Trust REMIC, and otherwise act on behalf of each Trust REMIC
in relation to any tax matter or controversy involving it.
The Trustee shall treat the rights of the Class P
Certificateholders to receive Prepayment Premiums, the rights of the Class X
Certificateholders to receive amounts from the Excess Reserve Fund Account and
the Supplemental Interest Trust (subject to the obligation to pay Basis Risk
Carry Forward Amounts and, without duplication, Upper-Tier Carry Forward
Amounts, and the right to receive Class IO Shortfalls) and the rights of the
LIBOR Certificateholders to receive Basis Risk Carry Forward Amounts and,
without duplication, Upper-Tier Carry Forward Amounts and the obligation to pay
Class IO Shortfalls as the beneficial ownership of interests in a grantor trust
and not as obligations of any Trust REMIC created hereunder, for federal income
tax purposes. The Trustee shall file or cause to be filed with the Internal
Revenue Service Form 1041 or such other form as may be applicable and shall
furnish or cause to be furnished, to the Class P and Class X Certificateholders
and the LIBOR Certificateholders, the respective amounts described above that
are received, in the time or times and in the manner required by the Code.
To enable the Trustee to perform its duties under this Agreement,
the Depositor shall provide to the Trustee within ten days after the Closing
Date all information or data that the Trustee requests in writing and determines
to be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Moreover, the Depositor
shall provide information to the Trustee concerning the value, if any, to each
Class of LIBOR Certificates of the right to receive Basis Risk Carry Forward
Amounts from the Excess Reserve Fund Account and Basis Risk Carry Forward
Amounts or Upper-Tier Carry Forward Amounts from the Supplemental Interest
Trust. Thereafter, the Depositor shall provide to the Trustee promptly upon
written request therefor any additional information or data that the Trustee
may, from time to time, reasonably request to enable the Trustee to perform its
duties under this Agreement; provided, however, that the Depositor shall not be
required to provide any information regarding the Mortgage Loans after the
Closing Date or any information that the Servicer or the Xxxxx Fargo Servicer is
required to provide to the Trustee pursuant to this Agreement. The Depositor
hereby indemnifies the Trustee for any losses, liabilities, damages, claims, or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any failure of the Depositor to provide, pursuant to
this paragraph, accurate information or data to the Trustee on a timely basis.
The Trustee shall not (i) cause the creation of any interests in
any Trust REMIC other than the regular and residual interests set forth in the
Preliminary Statement, (ii) receive any amount representing a fee or other
compensation for services (except as otherwise permitted by this Agreement) or
(iii) otherwise knowingly or intentionally take any action, cause the Trust Fund
to take any action or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, could (i) endanger the status of any Trust REMIC as a REMIC or (ii)
result in the imposition of a tax upon any Trust REMIC or the Trust Fund
(including but not limited to the tax on "prohibited transactions" as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth
in Section 860G(d) of the Code, or the tax on "net income from foreclosure
property") unless the Trustee receives an Opinion of Counsel (at the expense of
the party seeking to take such action or, if such party fails to pay such
expense, at the expense of the Trust Fund, but in no event at the expense of the
Trustee) to the effect that the contemplated action will not, with respect to
the Trust Fund, result in the imposition of a tax upon any Trust REMIC created
hereunder or endanger the status of any Trust REMIC.
If any tax is imposed on "prohibited transactions" of any Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Pooling-Tier REMIC-1 as defined in Section 860G(c)
of the Code, on any contribution to any Trust REMIC after the Start-up Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including,
if applicable, any minimum tax imposed on any Trust REMIC pursuant to Sections
23153 and 24874 of the California Revenue and Taxation Code, if not paid as
otherwise provided for herein, the tax shall be paid by (i) the Trustee if such
tax arises out of or results from negligence of the Trustee in the performance
of any of its obligations under this Agreement, (ii) the Servicer, in the case
of any such minimum tax, and otherwise if such tax arises out of or results from
a breach by the Servicer of any of its obligations under this Agreement, (iii)
the Sponsor if such tax arises out of or results from the Sponsor's obligation
to repurchase a Mortgage Loan pursuant to this Agreement or the Responsible
Party if such tax arises out of or results from the Sponsor's obligation to
repurchase a Mortgage Loan pursuant to the Responsible Party Agreements, or (iv)
in all other cases, or if the Trustee, the Servicer or the Sponsor fails to
honor its obligations under the preceding clause (i), (ii), or (iii), any such
tax will be paid with amounts otherwise to be distributed to the
Certificateholders, as provided in Section 4.02(a).
For as long as each Trust REMIC shall exist, the Trustee shall act
in accordance with this Agreement and shall comply with any directions of the
Depositor or the Servicer as provided herein so as to assure such continuing
treatment. The Trustee shall not (a) sell or permit the sale of all or any
portion of the Mortgage Loans unless pursuant to a repurchase or substitution in
accordance with this Agreement, or of any investment of deposits in an Account,
and (b) accept any contribution to any Trust REMIC after the Startup Day without
receipt of a REMIC Opinion.
Section 8.12 Periodic Filings. (a) The Trustee and the Servicer
shall reasonably cooperate with the Depositor in connection with the reporting
requirements of the Trust under the Exchange Act. The Trustee shall prepare for
execution by the Depositor any Forms 8-K, 10-D and 10-K required by the Exchange
Act and the rules and regulations of the Commission thereunder, in order to
permit the timely filing thereof pursuant to the terms of this Section 8.12, and
the Trustee shall file (via the Commission's Electronic Data Gathering and
Retrieval System ("XXXXX")) such Forms executed by the Depositor. The Trustee
shall have no duty to verify information received by it from other Persons
(other than Subcontractors utilized by the Trustee) in connection with its
duties under this Section 8.12.
(b) Within 15 calendar days after each Distribution Date (subject
to permitted extensions under the Exchange Act), the Trustee shall prepare and
file on behalf of the Trust any Form 10-D required by the Exchange Act, in form
and substance as required by the Exchange Act. The Trustee shall file each Form
10-D with a copy of the related Monthly Statement attached thereto. Any
disclosure in addition to the Monthly Statement that is required to be included
on Form 10-D ("Additional Form 10-D Disclosure") shall be prepared by the party
responsible for preparing such disclosure as set forth on Exhibit U hereto and
provided to the Trustee in XXXXX-compatible form at the e-mail address set forth
in Section 10.05 (in a form substantially similar to the Form attached hereto as
Exhibit Y), and the Trustee shall compile such disclosure pursuant to the
following paragraph. The Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure, except as
set forth in the next paragraph.
As set forth on Exhibit U hereto, within 3 calendar days after the
related Distribution Date, certain parties to this Agreement shall be required
to provide to the Trustee and the Depositor, to the extent known by such
applicable parties, any Additional Form 10-D Disclosure, if applicable. In
addition, the Xxxxx Fargo Servicer is obligated under the Xxxxx Fargo Agreements
to provide certain information to the Trustee. The Trustee shall compile all
such information provided to it in a Form 10-D prepared by it.
After preparing the Form 10-D, the Trustee shall forward
electronically a draft copy of the Form 10-D to the Depositor for review,
verification and execution by the Depositor. No later than 3 Business Days prior
to the 15th calendar day after the related Distribution Date, an officer of the
Depositor shall sign the Form 10-D and return an electronic or fax copy of such
signed Form 10-D (with an original executed hard copy to follow by overnight
mail) to the Trustee. If a Form 10-D cannot be filed on time or if a previously
filed Form 10-D needs to be amended, the Trustee will follow the procedures set
forth in Section 8.12(f)(ii). The signing party at the Depositor can be
contacted at the Depositor's address for notices set forth in Section
10.05(b)(2)(a), or such other address as to which the Depositor has provided
prior written notice to the Trustee. The Depositor acknowledges that the
performance by the Trustee of its duties under this Section 8.12(b) related to
the timely preparation and filing of Form 10-D is contingent upon the Servicer,
the Xxxxx Fargo Servicer, the Depositor and any other Person obligated to
provide Additional Form 10-D Disclosure as set forth on Exhibit U hereto
observing all applicable deadlines in the performance of their duties under this
Section 8.12(b) or the applicable provisions of the Xxxxx Fargo Agreements. The
Trustee shall have no liability for any loss, expense, damage, or claim arising
out of or with respect to any failure to properly prepare and/or timely file
such Form 10-D, where such failure results from the Trustee's inability or
failure to obtain or receive, on a timely basis, any information from any party
hereto (other than the Trustee or any Subcontractor utilized by the Trustee)
needed to prepare, arrange for execution or file such Form 10-D, not resulting
from its own negligence, bad faith or willful misconduct.
(c) Within 90 days after the end of each fiscal year of the Trust
or such earlier date as may be required by the Exchange Act (the "10-K Filing
Deadline"), commencing in March 2007, the Trustee shall prepare and file on
behalf of the Trust a Form 10-K, in form and substance as required by the
Exchange Act. Each such Form 10-K shall include the following items, in each
case to the extent they have been delivered to the Trustee within the applicable
time frames set forth in this Agreement, (i) an annual compliance statement for
the Servicer, the Xxxxx Fargo Servicer and each Subservicer engaged by the
Servicer and the Xxxxx Fargo Servicer, as described under Section 3.22 or under
the Xxxxx Fargo Agreements, (ii)(A) the annual reports on assessment of
compliance with applicable servicing criteria for the Trustee, the Servicer, the
Xxxxx Fargo Servicer, each Subservicer engaged by the Servicer and the Xxxxx
Fargo Servicer and each Servicing Function Participant utilized by the Servicer
and the Xxxxx Fargo Servicer or the Trustee, as described under Section 3.23 or
under the Xxxxx Fargo Agreements, and (B) if any such report on assessment of
compliance with servicing criteria described under Section 3.23 or under the
Xxxxx Fargo Agreements identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or such report on
assessment of compliance with servicing criteria described under Section 3.23 or
under the Xxxxx Fargo Agreements is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included, (iii)(A) the registered public accounting firm
attestation report for the Trustee, the Servicer, the Xxxxx Fargo Servicer, each
Subservicer engaged by the Servicer and the Xxxxx Fargo Servicer and each
Servicing Function Participant utilized by the Servicer, the Xxxxx Fargo
Servicer or the Trustee, as described under Section 3.23 or under the Xxxxx
Fargo Agreements, and (B) if any registered public accounting firm attestation
report described under Section 3.23 or under the Xxxxx Fargo Agreements
identifies any material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation why such report is not
included, and (iv) a certification in the form attached hereto as Exhibit O,
with such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the "Sarbanes Certification"), which shall be
signed by the senior officer of the Depositor in charge of securitization. Any
disclosure or information in addition to (i) through (iv) above that is required
to be included on Form 10-K ("Additional Form 10-K Disclosure") shall be
prepared by party responsible for preparing such disclosure as set forth on
Exhibit V hereto and provided to the Trustee in XXXXX-compatible form at the
e-mail address set forth in Section 10.05 (in a form substantially similar to
the Form attached hereto as Exhibit Y), and the Trustee shall compile such
disclosure pursuant to the following paragraph. The Trustee will have no duty or
liability for any failure hereunder to determine or prepare any Additional Form
10-K Disclosure, except as set forth in the next paragraph.
As set forth on Exhibit V hereto, no later than March 15th of each
year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2007, certain parties to this Agreement shall be required to
provide to the Trustee and the Depositor, to the extent known by such applicable
parties, any Additional Form 10-K Disclosure, if applicable. In addition, the
Xxxxx Fargo Servicer is obligated under the Xxxxx Fargo Agreements to provide
certain information to the Trustee. The Trustee shall compile all such
information provided to it in a Form 10-K prepared by it.
After preparing the Form 10-K, the Trustee shall forward
electronically a draft copy of the Form 10-K to the Depositor for review,
verification and execution by the Depositor. No later than 5:00 p.m. EST on the
3rd Business Day prior to the 10-K Filing Deadline, an officer of the Depositor
shall sign the Form 10-K and return an electronic or fax copy of such signed
Form 10-K (with an original executed hard copy to follow by overnight mail) to
the Trustee. If a Form 10-K cannot be filed on time or if a previously filed
Form 10-K needs to be amended, the Trustee will follow the procedures set forth
in Section 8.12(f)(ii). The signing party at the Depositor can be contacted at
the Depositor's address for notices set forth in Section 10.05(b)(2)(a), or such
other address as to which the Depositor has provided prior written notice to the
Trustee. The Depositor acknowledges that the performance by the Trustee of its
duties under this Section 8.12(c) related to the timely preparation and filing
of Form 10-K is contingent upon the Servicer and the Xxxxx Fargo Servicer (and
any Subservicer or Servicing Function Participant engaged by the Servicer or the
Xxxxx Fargo Servicer) and the Depositor and any other Person obligated to
provide Additional Form 10-K Disclosure as set forth on Exhibit V hereto,
observing all applicable deadlines in the performance of their duties under this
Section 8.12(c), Section 8.12(d), Section 3.22 and Section 3.23. The Trustee
shall have no liability for any loss, expense, damage or claim arising out of or
with respect to any failure to properly prepare and/or timely file such Form
10-K, where such failure results from the Trustee's inability or failure to
obtain or receive, on a timely basis, any information from any party hereto
(other than the Trustee or any Subcontractor utilized by the Trustee) needed to
prepare, arrange for execution or file such Form 10-K, not resulting from its
own negligence, bad faith or willful misconduct.
(d) In connection with the execution of a Sarbanes Certification,
the Trustee shall sign a certification (in the form attached hereto as Exhibit
P, with such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission) for the benefit of the Depositor and its
officers, directors and Affiliates, and the Servicer and the Xxxxx Fargo
Servicer shall sign a certification solely with respect to the Servicer or the
Xxxxx Fargo Servicer, as applicable (in the form attached hereto as Exhibit Q,
with such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission) for the benefit of the Depositor, the Trustee and
their respective officers, directors and Affiliates. Each such certification
shall be delivered to the Depositor no later than March 15th of each year (or if
such day is not a Business Day, the immediately preceding Business Day), and the
Depositor shall deliver the Sarbanes Certification no later than the time set
forth for the delivery to the Trustee of the signed Form 10-K pursuant to
Section 8.12(d) for such year. In the event that prior to the filing date of the
Form 10-K in March of each year, the Trustee, the Servicer or the Xxxxx Fargo
Servicer has actual knowledge of information material to the Sarbanes
Certification, that party shall promptly notify the Depositor and each of the
other parties signing the certifications. In addition, (i) the Trustee shall
indemnify and hold harmless the Depositor and the Sponsor and their officers,
directors, employees, agents and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon any breach of the Trustee's obligations under this Section 8.12(d) or any
material misstatement or material omission contained in any information, report,
certification or other material provided in written or electronic form pursuant
to Section 3.23 and 8.12 of this Agreement and Exhibits U, V and W to this
Agreement provided by or on behalf of the Trustee or any Subcontractor utilized
by the Trustee (excluding any information, report, certification or other
materials provided in written or electronic form by or on behalf of any Person
other than the Trustee or any Subcontractor utilized by the Trustee) or
negligence, bad faith or willful misconduct in connection therewith, and (ii)
the Servicer shall indemnify and hold harmless the Depositor, the Sponsor, the
Trustee and their respective officers, directors, employees, agents and
Affiliates from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon any breach of the Servicer's
obligations under this Section 8.12(d) or any material misstatement, omission,
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 any indemnified party, then (i) the Trustee agrees
in connection with a breach of the Trustee's obligations under this Section
8.12(d) or any material misstatement or material omission contained in any
information, report, certification or other material provided in written or
electronic form pursuant to Section 3.23 and 8.12 of this Agreement and Exhibits
U, V and W to this Agreement provided by or on behalf of the Trustee or any
Subcontractor utilized by the Trustee (excluding any information, report,
certification or other materials provided in written or electronic form by or on
behalf of any Person other than the Trustee or any Subcontractor utilized by the
Trustee) or negligence, bad faith or willful misconduct in connection therewith
that it shall contribute to the amount paid or payable by the Depositor and the
Sponsor as a result of the losses, claims, damages or liabilities of the
Depositor and the Sponsor in such proportion as is appropriate to reflect the
relative fault of the Depositor and the Sponsor on the one hand and the Trustee
on the other and (ii) 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 hand, in connection with a breach of the
Servicer's obligations under this Section 8.12(d) or any material misstatement
or omission, negligence, bad faith or willful misconduct of the Servicer in
connection therewith.
(e) Upon any filing with the Commission, the Trustee shall
promptly deliver to the Depositor a copy of each such executed report, statement
or information.
(f) (i) The obligations set forth in paragraphs (a) through (d) of
this Section shall only apply with respect to periods for which reports are
required to be filed with respect to the Trust under the Exchange Act. Prior to
January 30 of the first year in which the Trustee is able to do so under
applicable law, the Trustee shall file a Form 15 Suspension Notification with
respect to the Trust, with a copy to the Depositor. At any time after the filing
of a Form 15 Suspension Notification, if the number of Holders of the Offered
Certificates of record exceeds the number set forth in Section 15(d) of the
Exchange Act or the regulations promulgated pursuant thereto which would cause
the Trust to again become subject to the reporting requirements of the Exchange
Act, the Trustee shall recommence preparing and filing reports on Form 10-K,
10-D and 8-K as required pursuant to this Section 8.12 and the parties hereto
shall again have the obligations set forth in this Section.
(ii) In the event that the Trustee is unable to timely file with
the Commission all or any required portion of any Form 8-K, 10-D or 10-K
required to be filed pursuant to this Agreement because required
disclosure information was either not delivered to it or delivered to it
after the delivery deadlines set forth in this Agreement, the Trustee
will immediately notify the Depositor, the Servicer and the Xxxxx Fargo
Servicer. In the case of Form 10-D and 10-K, the Depositor, the Servicer
and the Trustee will thereupon cooperate to prepare a Form 12b-25 and a
10-DA and 10-KA as applicable, pursuant to Rule 12b-25 of the Exchange
Act and the Trustee shall file in accordance with this Agreement. In the
case of Form 8-K, the Trustee will, upon receipt of all disclosure
information required to be included on Form 8-K, include such disclosure
information on the next Form 10-D. In the event that any previously filed
Form 8-K, 10-D or 10-K needs to be amended, the party to this Agreement
deciding that an amendment to such Form 8-K, 10-D or 10-K is required
will notify the Depositor, the Trustee and the Servicer and such parties
will cooperate to prepare any necessary Form 8-KA, 10-DA or 10-KA. Any
Form 15, Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K shall be
signed by an officer of the Depositor. The Depositor acknowledges that
the performance by the Trustee of its duties under this Section 8.12(f)
related to the timely preparation and filing of Form 15, a Form 12b-25 or
any amendment to Form 8-K, 10-D or 10-K is contingent upon the Servicer,
the Xxxxx Fargo Servicer and the Depositor observing all applicable
deadlines in the performance of their duties under this Section 8.12 and
Sections 3.22 and 3.23 or the applicable provisions under the Xxxxx Fargo
Agreements. The Trustee shall have no liability for any loss, expense,
damage or claim arising out of or with respect to any failure to properly
prepare and/or timely file any such Form 15, Form 12b-25 or any
amendments to Forms 8-K, 10-D or 10-K, where such failure results from
the Trustee's inability or failure to obtain or receive, on a timely
basis, any information from any party hereto (other than the Trustee or
any Subcontractor utilized by the Trustee) needed to prepare, arrange for
execution or file such Form 15, Form 12b-25 or any amendments to Forms
8-K, 10-D or 10-K, not resulting from its own negligence, bad faith or
willful misconduct.
(g) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and
also if requested by the Depositor, the Trustee shall prepare and file on behalf
of the Trust any Form 8-K, as required by the Exchange Act, provided that the
Depositor shall file the initial Form 8-K in connection with the issuance of the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K ("Form 8-K Disclosure
Information") shall be prepared by the party responsible for preparing such
disclosure as set forth on Exhibit W hereto and provided to the Trustee in
XXXXX-compatible form at the e-mail address set forth in Section 10.05 (in a
form substantially similar to the Form attached hereto as Exhibit Y), which
shall be compiled by the Trustee pursuant to the following paragraph. The
Trustee will have no duty or liability for any failure hereunder to determine or
prepare any Form 8-K Disclosure Information or any Form 8-K, except as set forth
in the next paragraph.
As set forth on Exhibit W hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than noon (Eastern
time) on the 2nd Business Day after the occurrence of a Reportable Event,
certain parties to this Agreement shall be required to provide to the Depositor
and the Trustee, to the extent known by such applicable parties, any Form 8-K
Disclosure Information, if applicable. In addition, the Xxxxx Fargo Servicer is
obligated under the Xxxxx Fargo Agreements to provide certain information to the
Trustee. The Trustee shall compile all such information provided to it in a Form
8-K prepared by it.
After preparing the Form 8-K, the Trustee shall forward
electronically a draft copy of the Form 8-K to the Depositor for review,
verification and execution by the Depositor. No later than the end of the 3rd
Business Day after the Reportable Event, an officer of the Depositor shall sign
the Form 8-K and return an electronic or fax copy of such signed Form 8-K (with
an original executed hard copy to follow by overnight mail) to the Trustee. If a
Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be
amended, the Trustee will follow the procedures set forth in Section
8.12(f)(ii). The signing party at the Depositor can be contacted at the
Depositor's address for notices set forth in Section 10.05(b)(2)(a), or such
other address as to which the Depositor has provided prior written notice to the
Trustee. The Depositor acknowledges that the performance by the Trustee of its
duties under this Section 8.12(g) related to the timely preparation and filing
of Form 8-K is contingent upon the Servicer, the Xxxxx Fargo Servicer, the
Depositor and any other Person obligated to provide Form 8-K Disclosure
Information as set forth on Exhibit W hereto, observing all applicable deadlines
in the performance of their duties under this Section 8.12(g) or under the Xxxxx
Fargo Agreements. The Trustee shall have no liability for any loss, expense,
damage or claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 8-K, where such failure results from the
Trustee's inability or failure to obtain or receive, on a timely basis, any
information from any party hereto (other than the Trustee or any Subcontractor
utilized by the Trustee) needed to prepare, arrange for execution or file such
Form 8-K, not resulting from its own negligence, bad faith or willful
misconduct.
(h) The Trustee shall have no liability for any loss, expense,
damage or claim arising out of or resulting from (i) the accuracy or inaccuracy
of any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form
8-K Disclosure Information (excluding any information therein provided by the
Trustee or any Subcontractor utilized by the Trustee) provided to the Trustee in
connection with the preparation of Forms 10-D, 10-K and 8-K pursuant to this
Section 8.12, or (ii) the failure of the Depositor to timely execute and return
for filing any Forms 10-D, 10-K and 8-K required to be filed by the Trustee
pursuant to this Section 8.12, in either case, not resulting from the Trustee's
own negligence, bad faith or misconduct.
Section 8.13 Tax Treatment of Upper-Tier Carry Forward Amounts,
Basis Risk Carry Forward Amounts, the Supplemental Interest Trust and the
Interest Rate Swap Agreement. The Trustee shall treat the rights that each Class
of LIBOR Certificates has to receive payments of Upper-Tier Carry Forward
Amounts and, to the extent not paid from the Excess Reserve Fund Account, Basis
Risk Carry Forward Amounts from the Supplemental Interest Trust (together with
Basis Risk Carry Forward Amounts from the Excess Reserve Fund Account) as rights
to receive payments under a limited recourse interest rate cap contract written
by the Class X Certificateholders in favor of each such Class. Accordingly, each
Class of Certificates (excluding the Class X, Class C, Class P and the Residual
Certificates) will be comprised of two components - an Upper-Tier Regular
Interest and an interest in an interest rate cap contract, and the Class X
Certificate will be comprised of four components--(i) the Class X Interest, (ii)
the Class IO Interest, (iii) ownership of the Excess Reserve Fund Account,
subject to an obligation to pay Basis Risk Carry Forward Amounts, and (iv)
ownership of the Supplemental Interest Trust and the Interest Rate Swap
Agreement, subject to the obligation to pay Basis Risk Carry Forward Amounts
and, without duplication, Upper-Tier Carry Forward Amounts and the right to
receive Class IO Shortfalls. The Trustee shall allocate the issue price for a
Class of LIBOR Certificates among the respective components for purposes of
determining the issue price of the Upper-Tier Regular Interest component based
on information received from the Depositor. Unless otherwise advised by the
Depositor in writing, for federal income tax purposes, the Trustee 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 Amounts and, without
duplication, the related Upper-Tier Carry Forward Amount for purposes of
allocating the purchase price of an initial LIBOR Certificateholder between such
rights and the related Upper-Tier Regular Interest.
Holders of LIBOR Certificates shall also be treated as having
agreed to pay, on each Distribution Date, to the Holders of the Class X
Certificates an aggregate amount equal to the excess, if any, of (i) Net Swap
Payments and Swap Termination Payments (other than Defaulted Swap Termination
Payments) over (ii) the sum of amounts payable on the Class X Interest available
for such payments and amounts payable on the Class IO Interest (such excess, a
"Class IO Shortfall"), first from interest and then from principal distributable
on the LIBOR Certificates. A Class IO Shortfall payable from interest
collections shall be allocated pro rata among such LIBOR Certificates based on
the amount of interest otherwise payable to such Class of LIBOR Certificates,
and a Class IO Shortfall payable from principal collections shall be allocated
in reverse sequential order beginning with the most subordinate Class of LIBOR
Certificates then Outstanding.
Any payments of Class IO Shortfalls shall be treated for tax
purposes as having been received by the Holders of such Class of LIBOR
Certificates in respect of the corresponding Class of Upper-Tier Regular
Interest and as having been paid by such Holders to the Holders of the Class X
Certificates through the Supplemental Interest Trust.
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 9.02 and Section 9.03, the obligations and
responsibilities of the Depositor, the Servicer and the Trustee created hereby
with respect to the Trust Fund shall terminate upon the earlier of (a) the
purchase, on the Optional Termination Date, by the Servicer of all Mortgage
Loans (and REO Properties) at the price equal to the sum of (i) 100% of the
unpaid principal balance of each Mortgage Loan (other than in respect of REO
Property) plus accrued and unpaid interest thereon at the applicable Mortgage
Interest Rate, (ii) the lesser of (x) the appraised value of any REO Property as
determined by the higher of two appraisals completed by two independent
appraisers selected by the Person electing to terminate the Trust Fund (or in
the case of the Servicer, acting at the direction of the Majority Class C
Certificateholder, selected by the Majority Class C Certificateholder), at the
expense of such Person (or in the case of the Servicer, acting at the direction
of the Majority Class C Certificateholder, the Majority Class C
Certificateholder), plus accrued and unpaid interest on the related Mortgage
Loan at the applicable Mortgage Interest Rates and (y) the unpaid principal
balance of each Mortgage Loan related to any REO Property, in each case plus
accrued and unpaid interest thereon at the applicable Mortgage Interest Rate,
and (iii) any Swap Termination Payment owed to the Swap Provider (as provided to
the Trustee by the Swap Provider pursuant to the Interest Rate Swap Agreement)
("Termination Price") and (b) the later of (i) the maturity or other Liquidation
Event (or any Advance with respect thereto) of the last Mortgage Loan remaining
in the Trust Fund and the disposition of all REO Property and (ii) the
distribution to Certificateholders of all amounts required to be distributed to
them pursuant to this Agreement. In no event shall the trusts created hereby
continue beyond the 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.
Section 9.02 Final Distribution on the Certificates. If on any
Remittance Date, the Servicer notifies the Trustee in writing that there are no
Outstanding Mortgage Loans and no other funds or assets in the Trust Fund other
than the funds in the Collection Account, the Servicer shall direct the Trustee
promptly to send a Notice of Final Distribution to each Certificateholder and
the Swap Provider. If the Servicer (at the direction of the Majority Class C
Certificateholder) elects to terminate the Trust Fund pursuant to clause (a) of
Section 9.01, by the 25th day of the month preceding the month of the final
distribution, the Person electing to terminate the Trust Fund shall notify the
Depositor, the Servicer and the Trustee in writing of the date the electing
Person intends to terminate the Trust Fund and of the applicable Termination
Price of the Mortgage Loans and REO Properties. The Servicer, when acting at the
direction of the Majority Class C Certificateholder, shall be entitled to
reasonably rely on a representation from the Majority Class C Certificateholder
that it is the Majority Class C Certificateholder and is entitled under this
Agreement to direct the Servicer to terminate the Trust Fund.
A Notice of Final Distribution, specifying the Distribution Date
on which Certificateholders may surrender their Certificates for payment of the
final distribution and cancellation, shall be given promptly by the Trustee by
letter to Certificateholders mailed not later than the 15th day of the month of
such final distribution. Any such Notice of Final Distribution shall specify (a)
the Distribution Date upon which final distribution on the Certificates will be
made upon presentation and surrender of Certificates at the office therein
designated, (b) the amount of such final distribution, (c) the location of the
office or agency at which such presentation and surrender must be made, and (d)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Trustee will give such Notice
of Final Distribution to each Rating Agency at the time such Notice of Final
Distribution is given to Certificateholders.
In the event such Notice of Final Distribution is given and the
Person electing to terminate the Trust Fund is the Servicer (at the direction of
the Majority Class C Certificateholder), the Majority Class C Certificateholder
shall remit the applicable Termination Price in immediately available funds to
the Servicer at least two Business Days prior to the applicable Distribution
Date, and, upon receipt of such funds from the Majority Class C
Certificateholder, the Servicer shall promptly deposit such funds in the
applicable Collection Account. During the time such funds are held in such
Collection Account, such funds shall be invested, at the direction of the
Majority Class C Certificateholder, in Permitted Investments, and the Majority
Class C Certificateholder shall be entitled to all income from such investments,
and shall be responsible for, and shall reimburse the Servicer for all losses
from such investments. The Majority Class C Certificateholder shall be obligated
to reimburse the Servicer for its reasonable out-of-pocket expenses incurred in
connection with its termination of the Trust Fund at the direction of the
Majority Class C Certificateholder and shall indemnify and hold harmless the
Servicer for any losses, liabilities or expenses resulting from any claims
directly resulting from or relating to the Servicer's termination of the Trust
Fund at the direction of the Majority Class C Certificateholder, except to the
extent such losses, liabilities or expenses arise out of or result from the
Servicer's negligence, bad faith or willful misconduct. In connection with any
such termination of the Trust Fund, the Servicer shall cause all funds in the
Collection Account, including the applicable Termination Price for the Mortgage
Loans and REO Properties if the Servicer is electing to terminate the Trust
Fund, to be remitted to the Trustee for deposit in the Distribution Account on
the Business Day prior to the applicable Distribution Date. Upon such final
deposit with respect to the Trust Fund and the receipt by the Trustee of a
Request for Release therefor, the Trustee shall promptly release to the Person
electing to terminate the Trust Fund, or its designee, the Custodial Files for
the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to the Certificateholders of each Class (after
reimbursement of all amounts due to the Servicer and the Xxxxx Fargo Servicer
(including all unreimbursed Advances and any Servicing Fees accrued and unpaid
as of the date the Termination Price is paid), the Depositor and the Trustee
hereunder), in each case on the final Distribution Date and in the order set
forth in Section 4.02, in proportion to their respective Percentage Interests,
with respect to Certificateholders of the same Class, an amount up to an amount
equal to (i) as to each Class of Regular Certificates (except the Class X
Certificates), the Certificate Balance thereof plus for each such Class and the
Class X Certificates accrued interest thereon in the case of an interest bearing
Certificate and all other amounts to which such Classes are entitled pursuant to
Section 4.02, (ii) as to the Residual Certificates, the amount, if any, which
remains on deposit in the Distribution Account (other than the amounts retained
to meet claims) after application pursuant to clause (i) above.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
the Residual Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund which remain subject hereto.
Section 9.03 Additional Termination Requirements. In the event a
Person elects to terminate the Trust Fund as provided in Section 9.01, the Trust
Fund shall be terminated in accordance with the following additional
requirements, unless the Trustee has been supplied with an Opinion of Counsel,
at the expense of the electing Person, to the effect that the failure to comply
with the requirements of this Section 9.03 will not (i) result in the imposition
of taxes on "prohibited transactions" on any Trust REMIC as defined in Section
860F of the Code, or (ii) cause any Trust REMIC to fail to qualify as a REMIC at
any time that any Certificates are Outstanding:
(a) The Trustee shall sell all of the assets of the Trust Fund to
the Person electing to terminate the Trust Fund, or its designee, and, within 90
days of such sale, shall distribute to the Certificateholders the proceeds of
such sale in complete liquidation of each of the Trust REMICs; and
(b) The Trustee shall attach a statement to the final federal
income tax return for each of the Trust REMICs stating that pursuant to Treasury
Regulations Section 1.860F 1, the first day of the 90 day liquidation period for
each such Trust REMIC was the date on which the Trustee sold the assets of the
Trust Fund to the electing Person.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Amendment. This Agreement may be amended from time
to time by the Depositor, the Servicer and the Trustee without the consent of
any of the Certificateholders (i) to cure any ambiguity or mistake, (ii) to
correct any defective provision herein or to supplement any provision herein
which may be inconsistent with any other provision herein, (iii) to add to the
duties of the Depositor or the Servicer, (iv) to add any other provisions with
respect to matters or questions arising hereunder, (v) to modify, alter, amend,
add to or rescind any of the terms or provisions contained in this Agreement or
(vi) to comply with any requirements in Regulation AB; provided, that any
amendment pursuant to clause (iv) or (v) above shall not, as evidenced by an
Opinion of Counsel (which Opinion of Counsel shall not be an expense of the
Trustee or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder; provided, further, that the amendment shall
not be deemed to adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Depositor and the Servicer also may
at any time and from time to time amend this Agreement, but without the consent
of the Certificateholders to modify, eliminate or add to any of its provisions
to such extent as shall be necessary or helpful to (i) maintain the
qualification of each Trust REMIC under the REMIC Provisions, (ii) avoid or
minimize the risk of the imposition of any tax on any Trust REMIC pursuant to
the Code that would be a claim at any time prior to the final redemption of the
Certificates or (iii) comply with any other requirements of the Code; provided,
that the Trustee has been provided an Opinion of Counsel, which opinion shall be
an expense of the party requesting such opinion but in any case shall not be an
expense of the Trustee or the Trust Fund, to the effect that such action is
necessary or helpful to, as applicable, (i) maintain such qualification, (ii)
avoid or minimize the risk of the imposition of such a tax or (iii) comply with
any such requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates evidencing Percentage Interests aggregating not less than 66(2)/3%
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
clause (i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating not less than
66(2)/3%, or (iii) reduce the aforesaid percentages of Certificates the Holders
of which are required to consent to any such amendment, without the consent of
the Holders of all such Certificates then Outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless (i) it shall
have first received an Opinion of Counsel, which opinion shall not be an expense
of the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any Trust REMIC or the Certificateholders or
cause any Trust REMIC to fail to qualify as a REMIC or the grantor trust to fail
to qualify as a grantor trust at any time that any Certificates are Outstanding
and (ii) the party seeking such amendment shall have provided written notice to
the Rating Agencies (with a copy of such notice to the Trustee) of such
amendment, stating the provisions of the Agreement to be amended.
Notwithstanding the foregoing provisions of this Section 10.01,
with respect to any amendment that significantly modifies the permitted
activities of the Trustee or the Servicer, any Certificate beneficially owned by
the Depositor or any of its Affiliates shall be deemed not to be Outstanding
(and shall not be considered when determining the percentage of
Certificateholders consenting or when calculating the total number of
Certificates entitled to consent) for purposes of determining if the requisite
consents of Certificateholders under this Section 10.01 have been obtained.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 10.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into
an amendment which modifies its obligations or liabilities without its consent
and in all cases without receiving an Opinion of Counsel (which Opinion shall
not be an expense of the Trustee or the Trust Fund), satisfactory to the Trustee
that (i) such amendment is permitted and is not prohibited by this Agreement and
that all requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any material respect
the interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to this
Section 10.01.
Notwithstanding the foregoing, any amendment to this Agreement
shall require the prior written consent of the Swap Provider if such amendment
materially and adversely affects the rights or interests of the Swap Provider.
Section 10.02 Recordation of Agreement; Counterparts. This
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the expense of the Trust, but only upon receipt of
an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 10.04 Intention of Parties. It is the express intent of
the parties hereto that the conveyance (i) of the Mortgage Loans by the
Depositor and (ii) of the Trust Fund by the Depositor to the Trustee each be,
and be construed as, an absolute sale thereof. It is, further, not the intention
of the parties that such conveyances be deemed a pledge thereof. However, in the
event that, notwithstanding the intent of the parties, such assets are held to
be the property of the Depositor, as the case may be, or if for any other reason
this Agreement is held or deemed to create a security interest in either such
assets, then (i) this Agreement shall be deemed to be a security agreement
within the meaning of the Uniform Commercial Code of the State of New York and
(ii) the conveyances provided for in this Agreement shall be deemed to be an
assignment and a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Depositor, for the benefit of the Certificateholders, shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement.
Section 10.05 Notices. (a) The Trustee shall provide notice to
each Rating Agency with respect to each of the following of which it has actual
knowledge, within a reasonable amount after gaining such actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Servicer, the Xxxxx Fargo
Servicer or the Trustee and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Sections 2.03, 2.07 or 3.28; and
5. The final payment to Certificateholders.
(b) In addition, the Trustee shall promptly furnish to each Rating
Agency copies of the following:
1. Each report to Certificateholders described in Section 4.03.
2. Any notice of a purchase of a Mortgage Loan pursuant to Section
3.28.
All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case of
the Depositor, to GS Mortgage Securities Corp., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Principal Finance Group/Xxxxxxxxxxx X. Xxxxxxx and Asset
Management Group/Senior Asset Manager (and, in the case of the Officer's
Certificate delivered pursuant to Section 3.22, to PricewaterhouseCoopers LLP,
000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, Attention:
Xxxxxxxx Xxxxxxx), or such other address as may be hereafter furnished to the
Trustee and the Servicer by the Depositor in writing; (b) in the case of the
Servicer, to National City Home Loan Services, Inc., 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxx, or such other address as may
be hereafter furnished to the Depositor, the Trustee and the Swap Provider by
NCHLS in writing; (c) in the case of the Trustee, to the Corporate Trust Office,
or such other address as the Trustee may hereafter furnish to the Depositor, the
Swap Provider and NCHLS; provided, however, all reports, statements,
certifications and information required to be provided to the Trustee pursuant
to Section 8.12 for filing shall be electronically forwarded to
XXXxx.Xxxxxxxxxxxxx@xx.xxx; and (d) Xxxxxxx Xxxxx Capital Markets, 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, or such other
address as may be hereafter furnished to the Depositor, the Servicer and the
Trustee in writing and (e) in the case of each of the Rating Agencies, the
address specified therefor in the definition corresponding to the name of such
Rating Agency. Notices to Certificateholders shall be deemed given when mailed,
first class postage prepaid, to their respective addresses appearing in the
Certificate Register.
Section 10.06 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 10.07 Assignment; Sales; Advance Facilities.
Notwithstanding anything to the contrary contained herein, except as provided in
Section 6.04, this Agreement may be assigned by the Servicer with the prior
written consent of the Depositor and with written notice to the Trustee. In
addition, for so long as the Servicer is acting as the Servicer hereunder (i)
the Servicer is hereby authorized to enter into an advance facility ("Advance
Facility") under which (A) the Servicer sells, assigns or pledges to an
Advancing Person the Servicer's rights under this Agreement to be reimbursed for
any P&I Advances or Servicing Advances and/or (B) an Advancing Person agrees to
fund some or all P&I Advances or Servicing Advances required to be made by the
Servicer pursuant to this Agreement and (ii) the Servicer is hereby authorized
to assign its rights to the Servicing Fee; it being understood that neither the
Trust Fund nor any party hereto shall have a right or claim to an Advance
Reimbursement Amount so assigned or to the portion of the Servicing Fee so
assigned; it being further understood that upon resignation or termination of
the Servicer and reimbursement of all amounts due to the Servicer hereunder, the
assignment of further Advance reimbursement rights to such Advance Facility (in
the case of clause (i)) and such assignment (in the case of clause (ii)) shall
be terminated with respect to amounts due related to this Agreement. No consent
of the Trustee, Certificateholders, or any other party is required before the
Servicer may enter into an Advance Facility. Notwithstanding the existence of
any Advance Facility under which an Advancing Person agrees to fund P&I Advances
and/or Servicing Advances on the Servicer's behalf, the Servicer shall remain
obligated pursuant to this Agreement to make P&I Advances and Servicing Advances
pursuant to and as required by this Agreement, and shall not be relieved of such
obligations by virtue of such Advance Facility. The Trustee shall have no
oversight obligations with respect to such Advance Facility.
(a) Advance reimbursement amounts ("Advance Reimbursement
Amounts") shall consist solely of amounts in respect of P&I Advances and/or
Servicing Advances made with respect to the Mortgage Loans for which the
Servicer would be permitted to reimburse itself in accordance with this
Agreement, assuming the Servicer had made the related P&I Advance(s) and/or
Servicing Advance(s).
(b) The Servicer shall maintain and provide to any successor
Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced
by, pledged or assigned to, and reimbursed to any Advancing Person. The
successor Servicer shall be entitled to rely on any such information provided by
the predecessor Servicer, and the successor Servicer shall not be liable for any
errors in such information.
(c) An Advancing Person who purchases or receives an assignment or
pledge of the rights to be reimbursed for P&I Advances and/or Servicing
Advances, and/or whose obligations hereunder are limited to the funding of P&I
Advances and/or Servicing Advances shall not be required to meet the criteria
for qualification of a Subservicer set forth in this Agreement.
(d) Advance Reimbursement Amounts distributed with respect to each
Mortgage Loan shall be allocated to outstanding xxxxxxxxxxxx X&X Advances or
Servicing Advances (as the case may be) made with respect to that Mortgage Loan
on a "first-in, first out" (FIFO) basis. Such documentation shall also require
the Servicer to provide to the related Advancing Person or its designee
loan-by-loan information with respect to each such Advance Reimbursement Amount
distributed to such Advancing Person or Advance Facility trustee on each
Distribution Date, to enable the Advancing Person or Advance Facility trustee to
make the FIFO allocation of each such Advance Reimbursement Amount with respect
to each Mortgage Loan. The Servicer shall remain entitled to be reimbursed by
the Advancing Person or Advance Facility trustee for all P&I Advances and
Servicing Advances funded by the Servicer to the extent the related rights to be
reimbursed therefor have not been sold, assigned or pledged to an Advancing
Person.
(e) Any amendment to this Section 10.07 or to any other provision
of this Agreement that may be necessary or appropriate to effect the terms of an
Advance Facility as described generally in this Section 10.07, including
amendments to add provisions relating to a successor Servicer, may be entered
into by the Trustee, the Depositor and the Servicer without the consent of any
Certificateholder, notwithstanding anything to the contrary in this Agreement,
provided, that the Trustee has been provided an Opinion of Counsel that such
amendment has no material adverse effect on the Certificateholders which opinion
shall be an expense of the Servicer entering into the Advance Facility but in
any case shall not be an expense of the Trustee or the Trust Fund; provided,
further, that the amendment shall not be deemed to adversely affect in any
material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency (instead of
obtaining an Opinion of Counsel) stating that the amendment would not result in
the downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such rating letter in and
of itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. Prior to entering into an Advance Facility, the
Servicer shall notify the lender under such facility in writing that: (a) the
Advances financed by and/or pledged to the lender are obligations owed to the
Servicer on a non-recourse basis payable only from the cash flows and proceeds
received under this Agreement for reimbursement of Advances only to the extent
provided herein, and the Trustee and the Trust are not otherwise obligated or
liable to repay any Advances financed by the lender; (b) the Servicer will be
responsible for remitting to the lender the applicable amounts collected by it
as reimbursement for Advances funded by the lender, subject to the restrictions
and priorities created in this Agreement; and (c) the Trustee shall not have any
responsibility to track or monitor the administration of the financing
arrangement between the Servicer and the lender.
Section 10.08 Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust created hereby, nor entitle such Certificateholder's
legal representative or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a petition or winding up of the Trust
created hereby, or otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Trustee a written notice
of an Event of Default and of the continuance thereof, as herein provided, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this Section 10.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 10.09 Inspection and Audit Rights. The Servicer agrees
that on reasonable prior notice, it will permit any representative of the
Depositor, or the Trustee during the Servicer's normal business hours, to
examine all the books of account, records, reports and other papers of the
Servicer relating to the applicable Mortgage Loans, to make copies and extracts
therefrom, to cause such books to be audited by independent certified public
accountants selected by the Depositor or the Trustee and to discuss its affairs,
finances and accounts relating to such Mortgage Loans with its officers,
employees and independent public accountants (and by this provision the Servicer
hereby authorizes said accountants to discuss with such representative such
affairs, finances and accounts), all at such reasonable times and as often as
may be reasonably requested. Any reasonable out-of-pocket expense of the
Servicer incident to the exercise by the Depositor, or the Trustee of any right
under this Section 10.09 shall be borne by the Servicer. The Servicer may impose
commercially reasonable restrictions on dissemination of information the
Servicer defines as confidential.
Nothing in this Section 10.09 shall limit the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of the Servicer to provide access as
provided in this Section 10.09 as a result of such obligation shall not
constitute a breach of this Section. Nothing in this Section 10.09 shall require
the Servicer to collect, create, collate or otherwise generate any information
that it does not generate in its usual course of business. The Servicer shall
not be required to make copies of or to ship documents to any Person who is not
a party to this Agreement, and then only if provisions have been made for the
reimbursement of the costs thereof.
Section 10.10 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 10.11 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW)
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 10.12 Limitation of Damages. NOTWITHSTANDING ANYTHING
CONTAINED HEREIN TO THE CONTRARY, THE PARTIES AGREE THAT NO PARTY SHALL BE
LIABLE TO ANY OTHER PARTY FOR ANY PUNITIVE DAMAGES WHATSOEVER, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL
OR EQUITABLE PRINCIPLE, PROVIDED, HOWEVER, THAT SUCH LIMITATION SHALL NOT BE
APPLICABLE WITH RESPECT TO THIRD PARTY CLAIMS MADE AGAINST A PARTY.
Section 10.13 Rights of the Swap Provider. The Swap Provider shall
be deemed a third-party beneficiary of this Agreement to the same extent as if
it were a party hereto and shall have the right to enforce its rights under this
Agreement.
Section 10.14 No Solicitation. From and after the Closing Date,
the Servicer agrees that it will not take any action or permit or cause any
action to be taken by any of its agents or Affiliates, or by any independent
contractors or independent mortgage brokerage companies on its behalf, to
personally, by telephone, mail or electronic mail, specifically target through
direct solicitations, the Mortgagors under the Mortgage Loans for the purpose of
refinancing such Mortgage Loans; provided, however, that the Servicer may
solicit any Mortgagor for whom the Servicer has become aware of or received a
request for payoff, or a written or verbal communication from Mortgagor or
his/her agent indicating a desire to prepay the related Mortgage Loan and,
provided, further, that it is understood and agreed that promotions undertaken
by the Servicer or any of its Affiliates which (i) concern optional insurance
products (excluding single premium insurance) or other financial products or
services (excluding any mortgage related products such as home equity lines of
credit and second mortgage products), or (ii) are directed to the general public
at large or certain segments thereof exclusive of the Mortgagors as a targeted
group and, including mass mailings based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this Section 10.14, nor is the Servicer prohibited from responding to
unsolicited requests or inquiries made by a Mortgagor or his or her agent.
Section 10.15 Regulation AB Compliance; Intent of the Parties;
Reasonableness. The parties hereto acknowledge that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agree to comply with requests made by the Depositor in good faith for delivery
of information under these provisions on the basis of evolving interpretations
of Regulation AB. In connection with the Trust, the Servicer and the Trustee
shall cooperate fully with the Depositor to deliver to the Depositor (including
its assignees or designees), any and all statements, reports, certifications,
records and any other information available to such party and reasonably
necessary in the good faith determination of the Depositor to permit the
Depositor to comply with the provisions of Regulation AB.
* * * * * * *
IN WITNESS WHEREOF, the Depositor, the Trustee and the Servicer
has 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
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
solely as Trustee and not
in its individual capacity
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Signer
NATIONAL CITY HOME LOAN
SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
SCHEDULE I
Mortgage Loan Schedule
[Available Upon Request to the Trustee]
SCHEDULE II
FFMLT Mortgage Loan Trust 2006-FF13,
Mortgage Pass-Through Certificates
Representations and Warranties of National City Home Loan
Services, Inc., as Servicer
National City Home Loan Services, Inc. ("NCHLS") hereby makes the
representations and warranties set forth in this Schedule II to the Depositor
and the Trustee, as of the Closing Date, or if so specified herein, as of the
Cut-off Date:
(1) NCHLS is a corporation organized under the laws of the State
of Delaware and is an operating subsidiary of National City Bank. As a
national bank operating subsidiary, it is regulated by the Office of the
Comptroller of the Currency and is subject to applicable laws and
regulations. NCHLS is duly authorized to service mortgage loans and to
carry on its business as now being conducted as an operating subsidiary
of a national bank and has any applicable licenses necessary to carry on
its business as now being conducted and is, if applicable, qualified and
in good standing in each state where a Mortgaged Property is located if
the applicable laws of such state require licensing or qualification in
order to conduct business of the type conducted by NCHLS, and in any
event NCHLS is, if applicable, in compliance with the laws of any such
state to the extent necessary to service the related Mortgage Loan and to
ensure for the Seller the enforceability of the related Mortgage Loan in
accordance with the terms of this Pooling and Servicing Agreement; NCHLS
has the full corporate power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution, delivery
and performance of this Agreement (including all instruments or transfer
to be delivered pursuant to this Agreement) by NCHLS and the consummation
of the transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and enforceable
obligation of NCHLS; and all requisite corporate action has been taken by
NCHLS to make this Agreement valid and binding upon NCHLS in accordance
with its terms, subject to: (1) bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, including, without limitation, the effect of
statutory or ether laws regarding fraudulent conveyances or preferential
transfers, and (2) general principles of equity upon the specific
enforceability of any of the remedies, covenants or other provisions of
this Pooling and Servicing Agreement and upon the availability of
injunctive relief or other equitable remedies and the application of
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) as such principles relate
to, limit or affect the enforcement of creditors' rights generally and
the discretion of the court before which any proceeding for such
enforcement may be brought;
(2) The consummation of the transactions contemplated by this
Pooling and Servicing Agreement are in the ordinary course of business of
NCHLS;
(3) Neither the execution and delivery of this Pooling and
Servicing 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 NCHLS's charter
or by-laws or any legal restriction or any agreement or instrument to
which NCHLS 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 NCHLS or its property is subject, or impair the ability
of the Sponsor to realize on the Mortgage Loans, or impair the value of
the Mortgage Loans;
(4) NCHLS is a 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;
(5) NCHLS does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant contained in
this Pooling and Servicing Agreement;
(6) There is no action, suit, proceeding or investigation pending
or, to the best of NCHLS's knowledge, threatened against NCHLS 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 NCHLS, or in any material impairment of the right
or ability of NCHLS to carry on its business substantially as now
conducted, or in any material liability on the part of NCHLS, 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 NCHLS contemplated herein, or which would be likely to
impair materially the ability of NCHLS to perform under the terms of this
Pooling and Servicing Agreement;
(7) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by NCHLS of or compliance by NCHLS with this Agreement or the
servicing of the Mortgage Loans as evidenced by the consummation of the
transactions contemplated by this Pooling and Servicing Agreement, or if
required, such approval has been obtained prior to the Closing Date;
(8) Neither this Agreement nor any statement, report or other
document furnished or to be furnished pursuant to this Pooling and
Servicing Agreement or in connection with the transactions contemplated
hereby contains any untrue statement of fact;
(9) Prior to the date hereof, each Mortgage Loan has been serviced
in all material respects in strict compliance with Accepted Servicing
Practices and NCHLS has reported the Mortgagor credit files to each of
the three credit repositories on a monthly basis in a timely manner;
With respect to each NCHLS Serviced Mortgage Loan, to the extent
NCHLS serviced such NCHLS Serviced Mortgage Loan and to the extent NCHLS
provided monthly reports to the three credit repositories, NCHLS has fully
furnished, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and unfavorable)
on its borrower credit files to Equifax, Experian, and Trans Union Credit
Information Company (three of the credit repositories), on a monthly basis.
EXHIBIT A-1
FORM OF CLASS A, CLASS M AND CLASS B CERTIFICATES
[To be added to the Class B-1 and Class B-2 Certificates while they remain
Private Certificates: IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR CERTIFICATE (THE "TRANSFEROR
CERTIFICATE") IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (I) THE TRUSTEE RECEIVES A RULE 144A LETTER (THE "144A LETTER") IN THE
FORM OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR A LETTER (THE "NON-RULE
144A INVESTMENT LETTER") IN THE FORM OF EXHIBIT K TO THE AGREEMENT REFERRED TO
HEREIN OR (II) THE 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.
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE
DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
CERTIFICATE AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
In the event that a transfer of a Private Certificate which is a Book-Entry
Certificate is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer will be deemed to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will be
deemed to have made as of the transfer date each of the certifications set forth
in the Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate.]
Unless this Certificate is presented by an authorized representative of the
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
AS LONG AS THE INTEREST RATE SWAP AGREEMENT IS IN EFFECT, EACH BENEFICIAL OWNER
OF THIS CERTIFICATE, OR ANY INTEREST THEREIN, SHALL BE DEEMED TO HAVE
REPRESENTED THAT EITHER (I) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A
PLAN SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE, NOR A PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR ARRANGEMENT NOR USING THE ASSETS OF ANY SUCH PLAN OR
ARRANGEMENT OR (II) THE ACQUISITION AND HOLDING OF THIS CERTIFICATE ARE ELIGIBLE
FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AT LEAST ONE OF PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 84-14, XXXX 00-0, XXXX 00-0, XXXX 95-60 OR PTCE 96-23
OR A COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
Certificate No. :
Cut-off Date : September 1, 2006
First Distribution Date : October 25, 2006
Initial Certificate Balance of
this Certificate ("Denomination") :
Initial Certificate Balances of
all Certificates of this Class : Class Class Certificate Balance
Class A-1 $244,303,000
Class A-2A $737,527,000
Class A-2B $218,496,000
Class A-2C $326,660,000
Class A-2D $188,322,000
Class M-1 $ 73,195,000
Class M-2 $ 65,769,000
Class M-3 $ 37,128,000
Class M-4 $ 36,067,000
Class M-5 $ 32,885,000
Class M-6 $ 30,763,000
Class M-7 $ 29,702,000
Class M-8 $ 18,034,000
Class M-9 $ 15,912,000
Class B-1 $11,668,000
Class B-2 $21,216,000
CUSIP : Class CUSIP No.
Class X-0 00000X XX 9
Class A-2A 30247D AB 7
Class X-0X 00000X XX 0
Xxxxx X-0X 00000X AD 3
Class X-0X 00000X XX 1
Class M-1 30247D AF 8
Class M-2 30247D AG 6
Class M-3 30247D AH 4
Class M-4 30247D AJ 0
Class M-5 30247D AK 7
Class M-6 30247D AL 5
Class M-7 30247D AM 3
Class M-8 30247D AN 1
Class M-9 30247D AP 6
Class B-1 30247D AU 5
Class B-2 30247D AV 3
ISIN : Class
Class A-1 US30247DAA90
Class A-2A US30247DAB73
Class A-2B US30247DAC56
Class A-2C US30247DAD30
Class A-2D US30247DAE13
Class M-1 US30247DAF87
Class M-2 US30247DAG60
Class M-3 US30247DAH44
Class M-4 US30247DAJ00
Class M-5 US30247DAK72
Class M-6 US30247DAL55
Class M-7 US30247DAM39
Class M-8 US30247DAN12
Class M-9 US30247DAP69
Class B-1 US30247DAU54
Class B-2 US30247DAV38
GS MORTGAGE SECURITIES CORP.
FFMLT Trust 2006-FF13
Mortgage Pass-Through Certificates, Series 2006-FF13
[Class A-] [Class M-] [Class B-]
evidencing a percentage interest in the
distributions allocable to the Certificates of
the above-referenced Class.
Principal in respect of this Certificate is distributable monthly
as set forth herein. Accordingly, the Certificate Balance at any time may be
less than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Trustee or any other party to the Agreement referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_________] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), National City Home Loan Services, Inc.,
as servicer (the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
***
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
not in its individual
capacity, but solely as
Trustee
By: _____________________________
Authenticated:
By: ___________________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
FFMLT Trust 2006-FF13
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as FFMLT Trust 2006-FF13 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer
of immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes 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 Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or
the Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
On any Distribution Date 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 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
Dated:
_____________________________
Signature by or on behalf
of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Applicable statements should be mailed to______________________________________,
_______________________________________________________________________________.
This information is provided by ________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT B
FORM OF CLASS P CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR CERTIFICATE IN THE FORM
OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT J TO THE AGREEMENT REFERRED
TO HEREIN OR (ii) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE, OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION LETTER SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : September 1, 2006
First Distribution Date : October 25, 2006
Percentage Interest of this
Certificate ("Denomination") : [__]%
CUSIP : 30247D AX 9
ISIN : US30247DAX93
GS MORTGAGE SECURITIES CORP.
FFMLT Trust 2006-FF13
Mortgage Pass-Through Certificates, Series 2006-FF13
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 Trustee or
any other party to the Agreement referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), National City Home Loan Services, Inc.,
as servicer (the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
offices designated by the Trustee for such purpose.
No transfer of a Certificate of this Class shall be made unless
such disposition is exempt from the registration requirements of the Securities
Act of 1933, as amended (the "1933 Act"), and any applicable state securities
laws or is made in accordance with the 1933 Act and such laws. In the event of
any such transfer, the Trustee shall require the transferor to execute a
transferor certificate (in substantially the form attached to the Pooling and
Servicing Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Trustee that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from the
1933 Act or is being made pursuant to the 1933 Act, which Opinion of Counsel
shall be an expense of the transferor.
No transfer of a Certificate of this Class shall be made unless
the Trustee shall have received a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan
subject to Section 406 of ERISA, 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 Trustee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
***
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
not in its individual
capacity,
but solely as Trustee
By: _____________________________
Authenticated:
By _________________________________________
Authorized Signatory of DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its
individual capacity, but solely as
Trustee
GS MORTGAGE SECURITIES CORP.
FFMLT Trust 2006-FF13
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as FFMLT Trust 2006-FF13 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer
of immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes 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 Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or
the Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
On any Distribution Date 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 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
Dated:
_____________________________
Signature by or on behalf
of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Applicable statements should be mailed to______________________________________,
_______________________________________________________________________________.
This information is provided by ________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT C
FORM OF CLASS C CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR CERTIFICATE IN THE FORM
OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT J TO THE AGREEMENT REFERRED
TO HEREIN OR (II) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY
PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW
WITHOUT THE REPRESENTATION LETTER SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. : C-1
Cut-off Date : September 1, 2006
First Distribution Date : October 25, 2006
Percentage Interest of this
Certificate ("Denomination") : [___]%
CUSIP : 30247D AQ 4
ISIN : US30247DAQ43
GS MORTGAGE SECURITIES CORP.
FFMLT Trust 2006-FF13
Mortgage Pass-Through Certificates, Series 2006-FF13
Class C
evidencing a percentage interest in the
distributions allocable to the Certificates of
the above-referenced Class.
This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Trustee or any other
party to the Agreement referred to below or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that [_____________] is the registered owner of the
Percentage Interest evidenced by this Certificate in certain monthly
distributions pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), National City Home Loan Services, Inc.,
as servicer (the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will not be
entitled to any distributions pursuant to the Agreement. The only rights of this
Class under the Agreement is to make a request as set forth in Article IX of the
Agreement.
No transfer of a Certificate of this Class shall be made unless
such disposition is exempt from the registration requirements of the Securities
Act of 1933, as amended (the "1933 Act"), and any applicable state securities
laws or is made in accordance with the 1933 Act and such laws. In the event of
any such transfer, the Trustee shall require the transferor to execute a
transferor certificate (in substantially the form attached to the Agreement) and
deliver either (i) a Rule 144A Letter, in either case substantially in the form
attached to the Agreement, or (ii) a written Opinion of Counsel to the Trustee
that such transfer may be made pursuant to an exemption, describing the
applicable exemption and the basis therefor, from the 1933 Act or is being made
pursuant to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in its individual
capacity, but solely as Trustee
By: _____________________________
Authenticated:
By: __________________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL
TRUST COMPANY, not in its
individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
FFMLT Trust 2006-FF13
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as FFMLT Trust 2006-FF13 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and the Depositor and any agent of the Trustee or the
Depositor may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, 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 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
Dated:
_____________________________
Signature by or on behalf
of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Applicable statements should be mailed to______________________________________,
_______________________________________________________________________________.
This information is provided by ________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D-1
FORM OF CLASS R CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN THREE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH
REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : September 1, 2006
First Distribution Date : October 25, 2006
Initial Certificate Balance of
this Certificate ("Denomination") : $50
Initial Certificate Balance of all
Certificates of this Class : $50
CUSIP : 30247D AS 0
ISIN : US30247DAS09
GS MORTGAGE SECURITIES CORP.
FFMLT Trust 2006-FF13
Mortgage Pass-Through Certificates, Series 2006-FF13
Class R
evidencing a percentage interest in the
distributions allocable to the Certificates of
the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class R Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Trustee or any other party to the Agreement referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_____________] is the registered owner of the
Percentage Interest evidenced by this Certificate in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), National City Home Loan Services, Inc.,
as servicer (the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class R
Certificate at the offices designated by the Trustee for such purposes or such
other location specified in the notice to Certificateholders.
No transfer of a Class R Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan or arrangement subject to
Section 4975 of the Code or a plan subject to Similar Law, or a person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer, which representation letter shall not be an
expense of the Trustee, the Servicer or the Trust Fund. In the event that such
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of
the Code or a plan subject to Similar Law, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
such attempted transfer or acquisition shall be void and of no effect.
Each Holder of this Class R Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class R Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class R Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class R Certificate shall be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class R Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit H to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class R Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class R Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class R
Certificate, (C) not to cause income with respect to the Class R Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this Class R
Certificate or to cause the Transfer of the Ownership Interest in this Class R
Certificate to any other Person if it has actual knowledge that such Person is
not a Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class R Certificate in violation of the provisions
herein shall be absolutely null and void and shall vest no rights in the
purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
not in its individual capacity,
but solely as Trustee
By: _____________________________
Authenticated:
By: ___________________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
FFMLT Trust 2006-FF13
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as FFMLT Trust 2006-FF13 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee 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 Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes 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 Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and the Depositor and any agent of the Trustee or the
Depositor may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, 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 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
Dated:
_____________________________
Signature by or on behalf
of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Applicable statements should be mailed to______________________________________,
_______________________________________________________________________________.
This information is provided by ________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D-2
FORM OF CLASS RC CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH
REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : September 1, 2006
First Distribution Date : October 25, 2006
Initial Certificate Balance of
this Certificate ("Denomination") : $100
Initial Certificate Balances of
all Certificates of this Class : $100
CUSIP : 30247D AR 2
ISIN : US30247DAR26
GS MORTGAGE SECURITIES CORP.
FFMLT Trust 2006-FF13
Mortgage Pass-Through Certificates, Series 2006-FF13
Class RC
evidencing a percentage interest in the
distributions allocable to the Certificates of
the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class RC Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Trustee or any other party to the Agreement referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_____________] is the registered owner of the
Percentage Interest evidenced by this Certificate in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), National City Home Loan Services, Inc.,
as servicer (the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class RC
Certificate at the offices designated by the Trustee for such purposes or such
other location specified in the notice to Certificateholders.
No transfer of a Class RC Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan or arrangement subject to
Section 4975 of the Code or a plan subject to Similar Law, or a person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer, which representation letter shall not be an
expense of the Trustee, the Servicer or the Trust Fund. In the event that such
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of
the Code or a plan subject to Similar Law, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
such attempted transfer or acquisition shall be void and of no effect.
Each Holder of this Class RC Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class RC Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class RC Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class RC Certificate shall be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class RC Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit H to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class RC Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class RC Certificate,
(B) to obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of this
Class RC Certificate, (C) not to cause income with respect to the Class RC
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person and (D) not to Transfer the Ownership Interest in this
Class RC Certificate or to cause the Transfer of the Ownership Interest in this
Class RC Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee and (iv) any attempted or purported
Transfer of the Ownership Interest in this Class RC Certificate in violation of
the provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
not in its individual capacity,
but solely as Trustee
By: _____________________________
Authenticated:
By: ___________________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
FFMLT Trust 2006-FF13
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as FFMLT Trust 2006-FF13 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer
of immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes 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 Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or
the Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
On any Distribution Date 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 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
Dated:
_____________________________
Signature by or on behalf
of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Applicable statements should be mailed to______________________________________,
_______________________________________________________________________________.
This information is provided by ________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT D-3
FORM OF CLASS RX CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR PROVISIONS
OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN. IN THE EVENT THAT SUCH
REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT,
SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : RX-1
Cut-off Date : September 1, 2006
First Distribution Date : October 25, 2006
Initial Certificate Balance of
this Certificate ("Denomination") : $50
Initial Certificate Balances of
all Certificates of this Class : $50
CUSIP : 30247D AT 8
ISIN : US30247DAT81
GS MORTGAGE SECURITIES CORP.
FFMLT Trust 2006-FF13
Mortgage Pass-Through Certificates, Series 2006-FF13
Class RX
evidencing a percentage interest in the
distributions allocable to the Certificates of
the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class RX Certificate is not entitled to
distributions in respect of interest. This Certificate does not evidence an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Trustee or any other party to the Agreement referred to below or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_____________] is the registered owner of the
Percentage Interest evidenced by this Certificate in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), National City Home Loan Services, Inc.,
as servicer (the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class RX
Certificate at the offices designated by the Trustee for such purposes or such
other location specified in the notice to Certificateholders.
No transfer of a Class RX Certificate shall be made unless the
Trustee shall have received a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan or arrangement subject to
Section 4975 of the Code or a plan subject to Similar Law, or a person acting on
behalf of any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such transfer, which representation letter shall not be an
expense of the Trustee, the Servicer or the Trust Fund. In the event that such
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA or a plan subject to Section 4975 of
the Code or a plan subject to Similar Law, or a person acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement,
such attempted transfer or acquisition shall be void and of no effect.
Each Holder of this Class RX Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class RX Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class RX Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class RX Certificate shall be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class RX Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit H to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class RX Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class RX Certificate,
(B) to obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of this
Class RX Certificate, (C) not to cause income with respect to the Class RX
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person and (D) not to Transfer the Ownership Interest in this
Class RX Certificate or to cause the Transfer of the Ownership Interest in this
Class RX Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee and (iv) any attempted or purported
Transfer of the Ownership Interest in this Class RX Certificate in violation of
the provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
not in its individual capacity,
but solely as Trustee
By: _____________________________
Authenticated:
By: ___________________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
FFMLT Trust 2006-FF13
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as FFMLT Trust 2006-FF13 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer
of immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes 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 Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor and the Trustee and any agent of the Depositor or
the Trustee may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and neither the Depositor, the Trustee, nor
any such agent shall be affected by any notice to the contrary.
On any Distribution Date 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 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
Dated:
_____________________________
Signature by or on behalf
of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Applicable statements should be mailed to______________________________________,
_______________________________________________________________________________.
This information is provided by ________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT E
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS TWO
"REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER ASSETS.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE TRUSTEE A TRANSFEROR CERTIFICATE IN THE FORM
OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND EITHER (i) THE TRUSTEE
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT J TO THE AGREEMENT REFERRED
TO HEREIN OR (ii) THE TRUSTEE RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE
EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT
THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN
ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A
REPRESENTATION LETTER THAT IT IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND THE
PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A PROHIBITED TRANSACTION WITHIN THE
MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT
SUBJECT THE TRUSTEE, THE DEPOSITOR OR THE SERVICER TO ANY OBLIGATION IN ADDITION
TO THOSE EXPRESSLY UNDERTAKEN IN THE AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF
THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I
OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION
LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE
SHALL BE VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : September 1, 2006
First Distribution Date : October 25, 2006
Percentage Interest of this
Certificate ("Denomination") : [__]%
CUSIP : 30247D AW 1
ISIN : US30247DAW11
GS MORTGAGE SECURITIES CORP.
FFMLT Trust 2006-FF13
Mortgage Pass-Through Certificates, Series 2006-FF13
Class X
evidencing a percentage interest in the
distributions allocable to the Certificates of
the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Class X Certificate has no Certificate Balance
and is not entitled to distributions in respect of principal or interest. This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Trustee or any other party to the Agreement
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that [_____________] is the registered owner of the
Percentage Interest evidenced by this Certificate in certain monthly
distributions pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), National City Home Loan Services, Inc.,
as servicer (the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the
Trust Fund will be made only upon presentment and surrender of this Class X
Certificate at the offices designated by the Trustee for such purposes or such
other location specified in the notice to Certificateholders.
No transfer of a Class X Certificate shall be made unless the
Trustee shall have received either (i) a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan or arrangement subject to Section 406 of ERISA, a plan or
arrangement subject to Section 4975 of the Code or a plan subject to Similar
Law, or a person acting on behalf of any such plan or arrangement nor using the
assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Trustee, the Depositor, the
Servicer or the Trust Fund, or (ii) if the Class X Certificate has been the
subject of an ERISA Qualifying Underwriting and the transferee is an insurance
company, a representation letter that it is purchasing such Certificates with
the assets of its general account and that the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60, or (iii) in the
case of a Class X Certificate presented for registration in the name of an
employee benefit plan subject to ERISA, or a plan or arrangement subject to
Section 4975 of the Code (or comparable provisions of any subsequent enactments)
or a plan subject to Similar Law, or a trustee of any such plan or any other
person acting on behalf of any such plan or arrangement or using such plan's or
arrangement's assets, an Opinion of Counsel satisfactory to the Trustee, which
Opinion of Counsel shall not be an expense of the Trustee, the Depositor, the
Servicer or the Trust Fund, addressed to the Trustee, to the effect that the
purchase or holding of such Certificate will not constitute or result in a
non-exempt prohibited transaction within the meaning of ERISA, Section 4975 of
the Code or any Similar Law and will not subject the Trustee, the Depositor or
the Servicer to any obligation in addition to those expressly undertaken in the
Agreement or to any liability. In the event that such representation is
violated, or any attempt is made to transfer to a plan or arrangement subject to
Section 406 of ERISA or a plan subject to Section 4975 of the Code or a plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, such attempted
transfer or acquisition shall be void and of no effect.
Each Holder of this Class X Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class X Certificate to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in this Class X Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class X Certificate shall be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class X Certificate may be registered on the Closing Date or
thereafter transferred, and the Trustee shall not register the Transfer of this
Certificate unless, in addition to the certificates required to be delivered to
the Trustee under Section 5.02(b) of the Agreement, the Trustee shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit I to the Agreement, (iii) each Person
holding or acquiring any Ownership Interest in this Class X Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest this Class X Certificate, (B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of this Class X
Certificate, (C) not to cause income with respect to the Class X Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this Class X
Certificate or to cause the Transfer of the Ownership Interest in this Class X
Certificate to any other Person if it has actual knowledge that such Person is
not a Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class X Certificate in violation of the provisions
herein shall be absolutely null and void and shall vest no rights in the
purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Trustee.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
not in its individual capacity,
but solely as Trustee
By: _____________________________
Authenticated:
By: ___________________________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
GS MORTGAGE SECURITIES CORP.
FFMLT Trust 2006-FF13
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as FFMLT Trust 2006-FF13 Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date (or if such day
is not a Business Day, on the immediately preceding Business Day).
Distributions on this Certificate shall be made by wire transfer
of immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days prior
to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final distribution
on each Certificate will be made in like manner, but only upon presentment and
surrender of such Certificate at the offices designated by the Trustee for such
purposes 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 Servicer and the Trustee with the consent of the Holders
of Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders of
any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Trustee upon surrender of this Certificate for
registration of transfer at the offices designated by the Trustee for such
purposes or such other location specified in the notice to Certificateholders,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest in the Trust Fund will be issued to the
designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor, the
Trustee, nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date 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 9.01 of the Agreement
will have the option to repurchase, in whole, from the Trust Fund all remaining
Mortgage Loans and all property acquired in respect of the Mortgage Loans at a
purchase price determined as provided in the Agreement. The obligations and
responsibilities created by the Agreement will terminate as provided in Section
9.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto ___________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address: _________________________________________
________________________________________________________________________________
Dated:
_____________________________
Signature by or on behalf
of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ________________________________________________,
_______________________________________________________________________________,
for the account of ____________________________________________________________,
account number ______________, or, if mailed by check, to _____________________.
Applicable statements should be mailed to______________________________________,
_______________________________________________________________________________.
This information is provided by ________________________________,
the assignee named above, or __________________________________________________,
as its agent.
EXHIBIT F
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
______________________
______________________
Re: Pooling and Servicing Agreement among GS Mortgage
Securities Corp., as Depositor, National City Home Loan
Services, Inc., as Servicer, and Deutsche Bank National
Trust Company, as Trustee, FFMLT Trust, 2006-FF13
-------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, for each Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Mortgage Loan listed in the attached schedule of exceptions), certifies that
it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) except with respect to each MERS Designated Mortgage Loan, an
executed Assignment of Mortgage (which may be included in a blanket
assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability, recordability or
genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan or the perfection or priority of any Mortgage. Notwithstanding anything
herein to the contrary, the Trustee has made no determination and makes no
representations as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as Noteholder or assignee
thereof, in and to that Mortgage Note or (ii) any assignment is in recordable
form or sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
as Trustee
By:______________________________
Name:____________________________
Title:___________________________
EXHIBIT G
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF TRUSTEE
[date]
[Depositor]
[Servicer]
________________________
________________________
Re: Pooling and Servicing Agreement among GS Mortgage
Securities Corp., as Depositor, National City Home Loan
Services, Inc., as Servicer, and Deutsche Bank National
Trust Company, as Trustee, FFMLT Trust, 2006-FF13
-------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned, as
Trustee, hereby certifies that as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or listed on the
attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in
Section 2.01 of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator
to the last endorsee.
(ii) The original recorded Mortgage or a certified copy thereof.
(iii) Except with respect to each MERS Designated Mortgage Loan,
an executed Assignment of Mortgage endorsed in blank in the form provided
in Section 2.01 of the Pooling and Servicing Agreement; or, if the
Trustee has actual knowledge that the related Mortgage has not been
returned from the applicable recording office, a copy of the Assignment
of Mortgage (excluding information to be provided by the recording
office).
(iv) Except with respect to each MERS Designated Mortgage Loan,
the original or duplicate original recorded assignment or assignments of
the Mortgage endorsed in blank showing a complete chain of assignment
from the originator to the last endorsee.
(v) The original or duplicate original lender's title policy or a
copy thereof certified by the title company and all riders thereto or,
any one of an original title binder, an original preliminary title report
or an original title commitment, or a copy thereof certified by the title
company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (1), (2) and (13) of
the Mortgage Loan Schedule and the Data Tape Information accurately reflects
information set forth in the Custodial File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Pooling and Servicing Agreement. The Trustee makes
no representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File of any of the Mortgage Loans identified on the Mortgage
Loan Schedule or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan or the perfection or priority of any
Mortgage. Notwithstanding anything herein to the contrary, the Trustee has made
no determination and makes no representations as to whether (i) any endorsement
is sufficient to transfer all right, title and interest of the party so
endorsing, as Noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or sufficient to effect the assignment
of and transfer to the assignee thereof, under the Mortgage to which the
assignment relates.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
as Trustee
By:________________________________
Name:______________________________
Title:_____________________________
EXHIBIT H
FORM OF RESIDUAL TRANSFER AFFIDAVIT
FFMLT Trust 2006-FF13,
Mortgage Pass-Through Certificates
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Residual Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement dated as
of September 1, 2006 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), National City Home Loan Services, Inc., as servicer
(the "Servicer"), and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). Capitalized terms used, but not defined herein or in Exhibit 1
hereto, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee for the benefit of the Depositor and the Trustee.
2. The Transferee is, as of the date hereof, and will be, as of
the date of the Transfer, a Permitted Transferee. The Transferee is acquiring
its Ownership Interest in the Certificate for its own account. The Transferee
has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c)
of the Agreement and understands the legal consequences of the acquisition of an
Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by and
to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit I to the Agreement (a "Transferor Certificate") to the
effect that such Transferee has no actual knowledge that the Person to which the
Transfer is to be made is not a Permitted Transferee.
7. The Transferee has historically paid its debts as they have
come due, intends to pay its debts as they come due in the future, and
understands that the taxes payable with respect to the Certificate may exceed
the cash flow with respect thereto in some or all periods and intends to pay
such taxes as they become due. The Transferee does not have the intention to
impede the assessment or collection of any tax legally required to be paid with
respect to the Certificate.
8. The Transferee's taxpayer identification number is __________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30) and the Agreement.
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
Person.
12. Check one of the following:
[_] The present value of the anticipated tax liabilities
associated with holding the Certificate, as applicable, does not exceed the sum
of:
(i) the present value of any consideration given to the
Transferee to acquire such Certificate;
(ii) the present value of the expected future distributions on
such Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC
generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[ ] The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to
which income from the Certificate will only be taxed in the
United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S.
Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess
of $100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction
that satisfies the requirements of Sections
1.860E-1(c)(4)(i), (ii) and (iii) and Section
1.860E-1(c)(5) of the U.S. Treasury Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and
investment rates, prepayment and loss assumptions, expense
and reinvestment assumptions, tax rates and other factors
specific to the Transferee) that it has determined in good
faith.
[_] None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any Federal, state or local law that is substantially similar to
Title I of ERISA or Section 4975 of the Code, and the Transferee is not acting
on behalf of or investing plan assets of such a plan.
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed, duly
attested, this __ day of ________, 20__.
_________________________________
Print Name of Transferee
By: _____________________________
Name:
Title:
[Corporate Seal]
ATTEST:
___________________________________________
[Assistant] Secretary
Personally appeared before me the above-named __________, known or
proved to me to be the same person who executed the foregoing instrument and to
be the ___________ of the Transferee, and acknowledged that he executed the same
as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this __ day of ________, 20__.
___________________________________
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
EXHIBIT I
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Deutsche Bank National Trust Company,
as Trustee
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Re: XXXXX Xxxxx, 0000-XX00, Xxxxxxxx Pass-Through Certificates, Class
[__]
------------------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
_________________________________
Print Name of Transferor
By:______________________________
Authorized Officer
EXHIBIT J
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Deutsche Bank National Trust Company,
as Trustee
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Re: FFMLT Trust 2006-FF13, Mortgage Pass-Through Certificates, Class
[__ ]
----------------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are purchasing a Class B-1 or Class B-2
Certificate or we are not an employee benefit plan that is subject to Title I of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or a
plan or arrangement that is subject to Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a plan subject to any Federal, state or
local law materially similar to the foregoing provisions of ERISA or the Code,
nor are we acting on behalf of any such plan or arrangement nor using the assets
of any such plan or arrangement to effect such acquisition, or, with respect to
a Class X Certificate, the purchaser is an insurance company that is purchasing
this certificate with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60, (e) we have
not, nor has anyone acting on our behalf offered, transferred, pledged, sold or
otherwise disposed of the Certificates, any interest in the Certificates or any
other similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates under
the Securities Act or that would render the disposition of the Certificates a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates, and (f) we are a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us is being
made in reliance on Rule 144A. We are acquiring the Certificates for our own
account or for resale pursuant to Rule 144A and further, we understand that such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
ANNEX 1 TO EXHIBIT 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 underwritten by
insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency
of a State, territory or the District of Columbia.
____ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small
business investment company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958.
____ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
_________________________________
Print Name of Transferee
By: _____________________________
Name:
Title:
Date:____________________________
--------------------------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
ANNEX 2 TO EXHIBIT I
--------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities (other
than the excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Buyer or the Buyer's Family of Investment Companies, the cost of
such securities was used, except (i) where the Buyer or the Buyer's Family of
Investment Companies reports its securities holdings in its financial statements
on the basis of their market value, and (ii) no current information with respect
to the cost of those securities has been published. If clause (ii) in the
preceding sentence applies, the securities may be valued at market.
____ The Buyer owned $____________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which
owned in the aggregate $________ in securities (other than
the excluded securities referred to below) as of the end of
the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to which
this certification relates of any changes in the information and conclusions
herein. Until such notice is given, the Buyer's purchase of the Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
_________________________________
Print Name of Transferee
By: _____________________________
Name:
Title:
IF AN ADVISER:
_________________________________
Print Name of Buyer
Date:____________________________
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
_____________________
Date
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Re: FFMLT Trust 2006-FF13, Mortgage Pass-Through
Certificates,
Series 2006-FF13, Class B [_]
--------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
institutional "accredited investor" (within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Act, and have such knowledge and experience
in financial and business matters that we are capable of evaluating the merits
and risks of investments in the Certificates, (c) we have had the opportunity to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates, (d)
either we are purchasing a Class B-1 or Class B-2 Certificate, or we are not an
employee benefit plan that is subject to Title I of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or a plan or arrangement that
is subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code") or a plan subject to any federal, state or local law materially similar
to the foregoing provisions of ERISA or the Code, nor are we acting on behalf of
any such plan or arrangement nor using the assets of any such plan or
arrangement to effect such acquisition, or, with respect to a Class X
Certificate, the purchaser is an insurance company that is purchasing this
certificate with funds contained in an "insurance company general account" (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60")) and the purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60, (e) we are acquiring the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory to
the addressees of this Certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser or
transferee has otherwise complied with any conditions for transfer set forth in
the Pooling and Servicing Agreement.
_________________________________
Print Name of Transferee
By: _____________________________
Name:
Title:
Date:____________________________
EXHIBIT L
FORM OF REQUEST FOR RELEASE
(for Trustee)
To: [Address]
Re:
In connection with the administration of the Mortgage Loans held
by you as the Trustee on behalf of the Certificateholders we request the
release, and acknowledge receipt, of the (Custodial File/[specify documents])
for the Mortgage Loan described below, for the reason indicated.
Mortgagor's Name, Address & Zip Code:
-------------------------------------
Mortgage Loan Number:
---------------------
Reason for Requesting Documents (check one)
-------------------------------------------
____1. Mortgage Loan Paid in Full. (The Company hereby certifies that
all amounts received in connection therewith have been credited
to the Collection Account as provided in the Pooling and
Servicing Agreement.)
____2. Mortgage Loan Repurchase Pursuant to Section 2.03, 2.07 or 3.28
of the Pooling and Servicing Agreement. (The Company hereby
certifies that the repurchase price has been credited to the
Collection Account as provided in the Pooling and Servicing
Agreement.)
____3. Mortgage Loan Liquidated by _________________. (The Company
hereby certifies that all proceeds of foreclosure, insurance,
condemnation or other liquidation have been finally received and
credited to the Collection Account pursuant to the Pooling and
Servicing Agreement.)
____4. Mortgage Loan in Foreclosure.
____5. Other
(explain)._______________________________________________________
If box 1, 2 or 3 above is checked, and if all or part of the Custodial File was
previously released to us, please release to us our previous request and receipt
on file with you, as well as any additional documents in your possession
relating to the specified Mortgage Loan.
If Box 4 or 5 above is checked, upon our return of all of the above documents to
you as the Trustee, please acknowledge your receipt by signing in the space
indicated below, and returning this form, if requested.
Address to which {Trustee
Deliver the Trustee's Mortgage File: _________________________________
_________________________________
_________________________________
By:______________________________
(authorized signer)
Issuer:__________________________
Address:_________________________
_________________________________
Date:____________________________
Trustee
-------
Acknowledged receipt by:
Deutsche Bank National Trust Company, as Trustee
By: ____________________________________________
Name:
Title:
Date:
EXHIBIT M
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall
include each of the following items, which shall be available for inspection by
the Sponsor and which shall be retained by the Servicer or delivered to and
retained by the Trustee, as applicable:
(a) The original Mortgage Note bearing all intervening endorsements,
showing a complete chain of endorsement from the originator to the
last endorsee endorsed "Pay to the order of _______________,
without recourse" and signed (which may be by facsimile signature)
in the name of the last endorsee. To the extent that there is no
room on the face of any Mortgage Note for an endorsement, the
endorsement may be contained on an allonge, unless state law does
not so allow and the Trustee has been advised by the Responsible
Party that state law does not so allow;
(b) The original of any guaranty executed in connection with the
Mortgage Note;
(c) The original Mortgage with evidence of recording thereon or a
certified true copy of such Mortgage submitted for recording. If
in connection with any Mortgage Loan, the Responsible Party 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, such Responsible Party (to
the extent that it has not previously delivered the same to the
Sponsor or the Trustee) shall deliver or cause to be delivered to
the Trustee, a photocopy of such Mortgage, together with (A) in
the case of a delay caused by the public recording office, an
officer's certificate of the Responsible Party, or evidence of
certification on the face of such photocopy of such Mortgage, 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
Trustee upon receipt thereof by the Responsible Party; or (B) 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 provided), with evidence of recording
thereon or a certified true copy of such agreement submitted for
recording;
(e) except with respect to each MERS Designated Mortgage Loan, the
original Assignment of Mortgage for each Mortgage Loan endorsed in
blank and in recordable form;
(f) The originals of all intervening Assignments of Mortgage (if any)
evidencing a complete chain of assignment from the applicable
originator (or MERS with respect to each MERS Designated Mortgage
Loan) to the last endorsee with evidence of recording thereon, or
if any such intervening assignment has not been returned from the
applicable recording office or has been lost or if such public
recording office retains the original recorded Assignments of
Mortgage, the Responsible Party (to the extent that it has not
previously delivered the same to the Sponsor or the Trustee) shall
deliver or cause to be delivered to the Trustee, a photocopy of
such intervening assignment, together with (A) in the case of a
delay caused by the public recording office, an officer's
certificate of the Responsible Party, or evidence of certification
on the face of such photocopy of such intervening assignment, or
certified by the title company, escrow agent, or closing attorney
stating that such intervening Assignment of Mortgage has been
dispatched to the appropriate public recording office for
recordation and that such original recorded intervening Assignment
of Mortgage or a copy of such intervening Assignment of Mortgage
certified by the appropriate public recording office to be a true
and complete copy of the original recorded intervening assignment
of mortgage will be promptly delivered to the Trustee upon receipt
thereof by Responsible Party, or (B) in the case of an intervening
assignment where a public recording office retains the original
recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public
recording office, a copy of such intervening assignment certified
by such public recording office to be a true and complete copy of
the original recorded intervening assignment;
(g) The original mortgagee title insurance policy or attorney's
opinion of title and abstract of title 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 of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage (if
provided);
(i) Residential loan application;
(j) Mortgage Loan closing statement;
(k) Verification of employment and income, if applicable;
(l) Verification of acceptable evidence of source and amount of down
payment;
(m) Credit report on Mortgagor;
(n) Residential appraisal report.
(o) Photograph of the Mortgaged Property;
(p) Survey of the Mortgaged Property;
(q) 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;
(r) All required disclosure statements;
(s) If required in an appraisal, termite report, structural engineer's
report, water potability and septic certification;
(t) Sales contract, if applicable; and
(u) Original powers of attorney, if applicable, with evidence of
recording thereon, if required.
Evidence of payment of taxes and insurance, insurance claim files,
correspondence, current and historical computerized data files (which include
records of tax receipts and payment history from the date of origination), and
all other processing, underwriting and closing papers and records which are
customarily contained in a mortgage loan file and which are required to document
the Mortgage Loan or to service the Mortgage Loan.
EXHIBIT N
SERVICER REPORTING REQUIREMENTS
Data File Layout
----------------------------------------------------------------------------------------------------------------------------
XXXXXXX XXXXX LOAN SERVICER INFORMATION REQUEST LIST
Legend:
A=Available at Inception
T=Tech staff to resolve
B=Best efforts to provide data
N=Not available
----------------------------------------------------------------------------------------------------------------------------
FIELD NAME FIELD DESCRIPTION FORMAT
----------------------------------------------------------------------------------------------------------------------------
ONE TIME, STATIC FIELDS Legend
----------------------------------------------------------------------------------------------------------------------------
Loan Number A Loan Number currently being used to service this loan. Text
----------------------------------------------------------------------------------------------------------------------------
Prior Loan Number A Prior Loan Number (if any). If servicing has transferred Text
this should contain the Loan Number used by the previous
servicer.
----------------------------------------------------------------------------------------------------------------------------
Trustee File Number T Trustee ID used to file documents. This can be the Text
Trustee's only id or a category used to arrange documents
into proper pools.
----------------------------------------------------------------------------------------------------------------------------
Trustee Loan Number T Trustee secondary ID used to file documents. Often this is Text
used in conjunction with Trustee File Number to uniquely
identify loans.
----------------------------------------------------------------------------------------------------------------------------
Origination Date A Origination Date shown on loan documents. Date
----------------------------------------------------------------------------------------------------------------------------
Original Balance A Original amount of loan granted to borrower. In the case of Numeric
construction loans this should be the full amount extended
on which the monthly payments are based.
----------------------------------------------------------------------------------------------------------------------------
First Payment Date A This is the contractual date when the first payment was to be made. If the loan has
been modified this should be the first scheduled payment date following the
modification.
----------------------------------------------------------------------------------------------------------------------------
Original Maturity Date A This is the contractual date when the last payment on the Date
loan is scheduled to be made. For balloons it should be the
balloon date. For modified loans it should not be the
modified maturity date.
----------------------------------------------------------------------------------------------------------------------------
Original Term A The number of months from First Payment Date to Maturity Number
Date inclusive.
----------------------------------------------------------------------------------------------------------------------------
Balloon Flag A Code/literal to identify balloon loans. Example: Y, N. Text
----------------------------------------------------------------------------------------------------------------------------
Loan Type A Code/literal to identify the loan type. See Enumerations Text
worksheet.
----------------------------------------------------------------------------------------------------------------------------
Amortization Type A Generic category to describe loan type. See Enumerations Text
worksheet.
----------------------------------------------------------------------------------------------------------------------------
Original Amortization Term A Original Amortization Term of the loan in number of months. Number
For fully amortizing loans would be the same as Original
Term. For balloon loans this would exceed Original Term.
For IO loans this would have no value.
----------------------------------------------------------------------------------------------------------------------------
Interest Calculation Method A The basis on which interest is calculated. See Enumerations
worksheet.
----------------------------------------------------------------------------------------------------------------------------
Daily Simple Interest Flag T Flag to identify loans where interest is due is calculated based on the date that
each payment is actually received.
----------------------------------------------------------------------------------------------------------------------------
Original Principal and A Original contractual principal and interest payment amount. Number
Interest
----------------------------------------------------------------------------------------------------------------------------
Original Interest Rate A Original contractual interest rate for loan.
----------------------------------------------------------------------------------------------------------------------------
Negative Amortization Flag A Code/literal to identify loans where negative amortization Text
is allowed. Example: Y=neg am allowed, N=no neg am allowed.
----------------------------------------------------------------------------------------------------------------------------
Negam Percent Cap A Maximum percentage of original balance that a loan may Number
negatively amortize by. Example: 1.25, 1,10.
----------------------------------------------------------------------------------------------------------------------------
Servicing Fee A Servicing Fee rate due servicer. Example: 0.25%. Number
----------------------------------------------------------------------------------------------------------------------------
Property Type A Code/literal that identifies the type of property securing Text
the loan. See Enumerations worksheet.
----------------------------------------------------------------------------------------------------------------------------
Property Address A Property address, not billing address. Text
----------------------------------------------------------------------------------------------------------------------------
Property City A Property city. Text
----------------------------------------------------------------------------------------------------------------------------
Property State A Property state. Text
----------------------------------------------------------------------------------------------------------------------------
Property Zip A Property zip. Number
----------------------------------------------------------------------------------------------------------------------------
Borrower Name A Name of borrower. Preferably in a fixed format. Example: Text
XXXXX XXXX W.
----------------------------------------------------------------------------------------------------------------------------
CoBorrower Name A Name of Co borrower. Preferably in a fixed format. Example: Text
XXXXX XXXX W.
----------------------------------------------------------------------------------------------------------------------------
Borrower Social Security Eleven character ID. Example: 000-00-0000. Number
Number/TIN
A ---------------------------------------------------------------------------------------------
CoBorrower Social Security Eleven character ID. Example: 000-00-0000. Number
Number/TIN
A
----------------------------------------------------------------------------------------------------------------------------
Original FICO score A Credit bureau score obtained at application. Number
----------------------------------------------------------------------------------------------------------------------------
Original Credit Grade A Internal credit grade assigned at origination. Text
----------------------------------------------------------------------------------------------------------------------------
Original Loan To Value Ratio A Ratio representing the Original Loan Balance to the lower of the Original Appraised
Value or Original Purchase Price. Example: 80.00.
----------------------------------------------------------------------------------------------------------------------------
Original Appraised Value A Appraised value at time of application. Number
----------------------------------------------------------------------------------------------------------------------------
Original Appraisal Date A Date of the original Appraisal Date
----------------------------------------------------------------------------------------------------------------------------
Original Appraisal Firm A Name of the Appraisal firm Text
----------------------------------------------------------------------------------------------------------------------------
Original Purchase Price A Price paid for home. Number
----------------------------------------------------------------------------------------------------------------------------
Purchase BPO A BPO at the time of Purchase by GS. Number
----------------------------------------------------------------------------------------------------------------------------
Purchase BPO Date A Date of the Purchase BPO Date
----------------------------------------------------------------------------------------------------------------------------
Lien Position A Number used to identify the lien position in effect at the Number
time of application. Example: 1, 2, 3
----------------------------------------------------------------------------------------------------------------------------
PMI Provider A Name or code for company providing private mortgage
insurance.
----------------------------------------------------------------------------------------------------------------------------
PMI Coverage Percentage A Percentage of insurance provided by PMI agreement.
----------------------------------------------------------------------------------------------------------------------------
PMI Certificate ID A Unique ID to identify PMI insurance certificate.
----------------------------------------------------------------------------------------------------------------------------
Occupancy Type A Occupancy status at time of application. See Enumerations Text
worksheet.
----------------------------------------------------------------------------------------------------------------------------
Purpose of Loan A Code/literal used to identify the original purpose of the Text
loan. See Enumerations worksheet.
----------------------------------------------------------------------------------------------------------------------------
Prepayment Flag A Code/Flag to determine if loan was originated with a Text
prepayment penalty.
----------------------------------------------------------------------------------------------------------------------------
Prepayment Penalty Type T Code/literal to identify characteristics of penalty. Text
Example: 6 MO INT ON 80% XXXX, 5/4/3/2/1, 3%.
----------------------------------------------------------------------------------------------------------------------------
Prepayment Term A Original number of months that penalty was imposed. Number
----------------------------------------------------------------------------------------------------------------------------
Front Ratio T Front End Ratio at time of application. Mortgage debt to Number
borrower income.
----------------------------------------------------------------------------------------------------------------------------
Back Ratio T Back End Ratio at time of application. Total debt to Number
borrower income.
----------------------------------------------------------------------------------------------------------------------------
MONTHLY LOAN DATA UPDATES
----------------------------------------------------------------------------------------------------------------------------
As Of Date A As Of Date for data sent. Date
----------------------------------------------------------------------------------------------------------------------------
Loan Number A Loan Number currently being used to service this loan. Number
----------------------------------------------------------------------------------------------------------------------------
Investor Number A This is the servicer assigned number for reporting purposes. Number
----------------------------------------------------------------------------------------------------------------------------
Investor Category A This is the servicer assigned category for reporting
purposes.
----------------------------------------------------------------------------------------------------------------------------
Current Maturity Date A This is the actual date when the last payment on the loan Date
is scheduled to be made. For balloons it should be the
balloon date. For modified loans it should be the modified
maturity date.
----------------------------------------------------------------------------------------------------------------------------
Remaining Term A The Remaining Term of the loan Number
----------------------------------------------------------------------------------------------------------------------------
Current Principal & Interest A Principal & Interest in effect for currently outstanding Number
Payment payment.
----------------------------------------------------------------------------------------------------------------------------
Current Interest Rate A Interest Rate in effect for currently outstanding payment. Number
----------------------------------------------------------------------------------------------------------------------------
Next Due Date A Date next payment is due.
----------------------------------------------------------------------------------------------------------------------------
Interest Paid To Date A Date interest is paid to. Typically for 30/360 loans it is one month prior to Next
Due Date.
----------------------------------------------------------------------------------------------------------------------------
Last Payment Date A Date last payment was made. Date
----------------------------------------------------------------------------------------------------------------------------
Current Balance A Actual outstanding balance of loan. Number
----------------------------------------------------------------------------------------------------------------------------
Current Balance Net Present T The net present value of the current balance Number
Value
----------------------------------------------------------------------------------------------------------------------------
Days Past Due A Number of days loan is past due.
----------------------------------------------------------------------------------------------------------------------------
Delinquency Convention Indicates if ABS or MBS method for reporting delinquencies
is used.
----------------------------------------------------------------------------------------------------------------------------
Delinquency Status A Indicates delinquency reported. Example: 30, 60, 90. Number
----------------------------------------------------------------------------------------------------------------------------
Status of Loan A Code/literal used to identify loan status. See Enumerations Text
worksheet.
----------------------------------------------------------------------------------------------------------------------------
12 Month Pay String T 12 character string representing the timing of payments received on a rolling 12
month basis. String should begin with January and end with December.
----------------------------------------------------------------------------------------------------------------------------
Time 30 Days Delinquent in Past 12 Indicates the number of times a loan payment has been made 30 or more days
Months delinquent in the past 12 months.
A
----------------------------------------------------------------------------------------------------------------------------
Time 60 Days Delinquent in Past 12 Indicates the number of times a loan payment has been made 60 or more days
Months delinquent in the past 12 months.
A
----------------------------------------------------------------------------------------------------------------------------
Time 90 Days Delinquent in Past 12 Indicates the number of times a loan payment has been made 90 or more days
Months delinquent in the past 12 months.
A
----------------------------------------------------------------------------------------------------------------------------
Last Modification Date B Date that loan was last modified.
----------------------------------------------------------------------------------------------------------------------------
Last Extension Date B Date loan term was last extended.
----------------------------------------------------------------------------------------------------------------------------
Total Extension Months B Number of months loan has been extended in total.
----------------------------------------------------------------------------------------------------------------------------
Restructured Interest B Total amount of restructured interest.
----------------------------------------------------------------------------------------------------------------------------
Property Sale Date A Date property sold. Date
----------------------------------------------------------------------------------------------------------------------------
Debt To Income Ratio A Debt To Income Ratio Number
----------------------------------------------------------------------------------------------------------------------------
Senior Lien Amount A Most recently recorded senior lien amount. Number
----------------------------------------------------------------------------------------------------------------------------
Recent Property Valuation A Most recent appraised value or BPO value. Number
----------------------------------------------------------------------------------------------------------------------------
Recent Property Valuation Date A Date of most recent valuation. Date
----------------------------------------------------------------------------------------------------------------------------
Valuation Method A Identify method used to obtain new valuation. See Text
----------------------------------------------------------------------------------------------------------------------------
Valuation Firm T Name of the Firm who appraised the property Text
----------------------------------------------------------------------------------------------------------------------------
Current FICO T Current FICO score. Number
----------------------------------------------------------------------------------------------------------------------------
FICO Date T FICO Date. Date
----------------------------------------------------------------------------------------------------------------------------
MONTHLY SERVICING UPDATES
----------------------------------------------------------------------------------------------------------------------------
Borrower Payments
----------------------------------------------------------------------------------------------------------------------------
Total Monthly Payment A Total cash received from borrower. Number
----------------------------------------------------------------------------------------------------------------------------
Total Monthly Payment A Cash applied to principal. Number
Principal
----------------------------------------------------------------------------------------------------------------------------
Total Monthly Payment Interest A Cash applied to interest. Number
----------------------------------------------------------------------------------------------------------------------------
Total Monthly Payment Penalties / Fee Cash applied to fees. Text
----------------------------------------------------------------------------------------------------------------------------
A
Total Monthly Escrow Payment A Cash applied to escrow account. Number
----------------------------------------------------------------------------------------------------------------------------
Total Monthly Prepayment T Total amount borrower prepaid Number
----------------------------------------------------------------------------------------------------------------------------
Amount
Payment Date A Date the payment was made. Date
----------------------------------------------------------------------------------------------------------------------------
Scheduled P&I A Borrower Scheduled P&I payment for the month Number
----------------------------------------------------------------------------------------------------------------------------
REO Rent Collection A Collection of rent on an REO Property
----------------------------------------------------------------------------------------------------------------------------
Servicer Payments
----------------------------------------------------------------------------------------------------------------------------
Monthly Escrow Advances A Net escrow advances made or recovered by servicer. Positive Number
value denotes payments made by servicer.
----------------------------------------------------------------------------------------------------------------------------
Monthly Corporate Advances A Net corporate advances made or recovered by servicer. Number
Positive value denotes payments made by servicer.
----------------------------------------------------------------------------------------------------------------------------
Monthly Non Recoverable Corporate Net Non Recoverable Corporate Advances made or recovered by Number
Advances Servicer. Positive value denotes payments made by Servicer.
A
----------------------------------------------------------------------------------------------------------------------------
Principal Advances A Total outstanding principal advances made by servicer. Number
----------------------------------------------------------------------------------------------------------------------------
Interest Advances A Total outstanding interest advances made by servicer. Number
----------------------------------------------------------------------------------------------------------------------------
LPMI Flag A Code/Flag to determine if PMI is paid by owner of loan Text
----------------------------------------------------------------------------------------------------------------------------
LPMI Rate A Rate per annum of LPMI premiums Number
----------------------------------------------------------------------------------------------------------------------------
Account Balances
----------------------------------------------------------------------------------------------------------------------------
Beginning Scheduled Balance A Beginning scheduled loan balance. If the loan is serviced Number
on a scheduled balance basis
----------------------------------------------------------------------------------------------------------------------------
Ending Scheduled Balance A Ending scheduled loan balance. If the loan is serviced on a
scheduled balance basis
----------------------------------------------------------------------------------------------------------------------------
Escrow Balance A Current balance of escrow account (borrower's positive Number
funds).
----------------------------------------------------------------------------------------------------------------------------
Escrow Advance Balance A Total outstanding escrow advance balance. Number
----------------------------------------------------------------------------------------------------------------------------
Recoverable Corporate Advance A Total outstanding Recoverable corporate advance balance Number
Balance amount.
----------------------------------------------------------------------------------------------------------------------------
Non Recoverable Corporate Advance Total outstanding Non Recoverable corporate advance balance Number
Balance amount.
A
----------------------------------------------------------------------------------------------------------------------------
Suspense Account Balance A Total suspense account balance Number
----------------------------------------------------------------------------------------------------------------------------
Accrued Interest A Total Accrued Interest on loan. Number
----------------------------------------------------------------------------------------------------------------------------
Account Management Statistics
----------------------------------------------------------------------------------------------------------------------------
Forced Placed Insurance Flag T Code indicating loan is on forced placed insurance.
----------------------------------------------------------------------------------------------------------------------------
Annual Forced Placed Insurance T Amount of forced placed policy.
----------------------------------------------------------------------------------------------------------------------------
Stop Advance Flag B Code indicating loan has been placed in a stop advance Text
status. Example: Y=Stop Advance.
----------------------------------------------------------------------------------------------------------------------------
Stop Advance Recovered B Amount of principal and interest advances recovered at stop
date.
----------------------------------------------------------------------------------------------------------------------------
Stop Advance Start Date B Date loan was initially placed on a stop advance status. Date
----------------------------------------------------------------------------------------------------------------------------
Stop Advance Reversal Date B Date stop advance status was reversed. Date
----------------------------------------------------------------------------------------------------------------------------
Stop Advance Reversal Amount B Amount of advances reversed. Number
----------------------------------------------------------------------------------------------------------------------------
Last Contact Date A Date of Servicer's last contact with the borrower. Date
----------------------------------------------------------------------------------------------------------------------------
Last Attempt Date A Date of the Servicer's last attempt to contact the borrower. Date
----------------------------------------------------------------------------------------------------------------------------
Bankruptcy Flag A Flag indicating loan is in bankruptcy. Text
----------------------------------------------------------------------------------------------------------------------------
Bankruptcy Chapter A Chapter of bankruptcy (7, 11, 12, 13). Text
----------------------------------------------------------------------------------------------------------------------------
Bankruptcy Start Date A Bankruptcy filing date. Date
----------------------------------------------------------------------------------------------------------------------------
Bankruptcy End Date A Dismissal/Discharge date. Date
----------------------------------------------------------------------------------------------------------------------------
Bankruptcy Post Petition Due A Payment due date of Bankruptcy payment plan. In essence the Date
Date new due date.
----------------------------------------------------------------------------------------------------------------------------
Motion for Relief Request Date A Motion for Relief Request Date. Date
----------------------------------------------------------------------------------------------------------------------------
Motion for Relief Filing Date A Date
----------------------------------------------------------------------------------------------------------------------------
Motion for Relief Hearing Date A Motion for Relief Hearing Date. Date
----------------------------------------------------------------------------------------------------------------------------
Motion for Relief Granted Date A Motion for Relief Granted Date. Date
----------------------------------------------------------------------------------------------------------------------------
Motion for Relief Denied Date N Date the motion was Denied (if applicable) Date
---------------------------------------------------------------------------------------------------------------------------
In Demand Flag T Code indicating demand letter has been sent. Text
----------------------------------------------------------------------------------------------------------------------------
In Demand Start Date T Date demand letter was sent. Date
----------------------------------------------------------------------------------------------------------------------------
In Demand End Date T Expiration of demand letter. Date
----------------------------------------------------------------------------------------------------------------------------
Foreclosure Start Date A Date foreclosure flag placed on loan. Date
----------------------------------------------------------------------------------------------------------------------------
Due Date At Referral T The revised due date on any payment modification. Date
----------------------------------------------------------------------------------------------------------------------------
Foreclosure Estimated End Date T On loans that are in Foreclosure the Servicer's estimate of when the FCL will be
completed.
----------------------------------------------------------------------------------------------------------------------------
Foreclosure Sale Date A Date of actual foreclosure sale. Date
----------------------------------------------------------------------------------------------------------------------------
Foreclosure end date T Date of recording of foreclosure deed. Date
----------------------------------------------------------------------------------------------------------------------------
First Legal Date A Date of first legal action taken on foreclosure. Date
----------------------------------------------------------------------------------------------------------------------------
Foreclosure Resolution Flag B Indicates if the loan has moved out of foreclosure (i.e. Number
Did not go to REO).
----------------------------------------------------------------------------------------------------------------------------
Foreclosure Resolution Type B Method used by the servicer to prevent the foreclosed loan from moving into REO
(i.e. Reinstated, Paid Off, Worked out Repayment plan.).
----------------------------------------------------------------------------------------------------------------------------
Foreclosure On Hold B Flag indicating that the loan is in foreclosure but on hold.
----------------------------------------------------------------------------------------------------------------------------
Foreclosure Hold Start Date B Date indicating when the loan's foreclosure proceedings Date
were put on hold.
----------------------------------------------------------------------------------------------------------------------------
Bankruptcy Cash Delays B Number of days an active foreclosure has been in BK subsequent to its initial
foreclosure start date.
----------------------------------------------------------------------------------------------------------------------------
Forbearance Cash Delays B Number of days an active foreclosure has been in forbearance subsequent to its
initial foreclosure start date.
----------------------------------------------------------------------------------------------------------------------------
Non - Cash Delays B Number of allowable days that a loan's foreclosure proceedings have been on hold
due to a non cash delay (i.e. Title problem...) [again as per Fannie time line]
----------------------------------------------------------------------------------------------------------------------------
Forbearance Start Date A Date forbearance plan was initiated. Date
----------------------------------------------------------------------------------------------------------------------------
Forbearance Payment A Amount of payment under Forbearance plan. Number
----------------------------------------------------------------------------------------------------------------------------
Forbearance End Date A Date forbearance plan scheduled to be complete. Date
----------------------------------------------------------------------------------------------------------------------------
Eviction Start Date A Date eviction flag placed on loan. Date
----------------------------------------------------------------------------------------------------------------------------
Eviction End Date A Date property is vacated. Date
----------------------------------------------------------------------------------------------------------------------------
REO Start Date A Date REO flag placed on loan (including any redemption Date
periods).
----------------------------------------------------------------------------------------------------------------------------
REO End Date A Date property is sold. Date
----------------------------------------------------------------------------------------------------------------------------
REO Sub Status A Status while within REO. See Enumerations worksheet.
----------------------------------------------------------------------------------------------------------------------------
Not Acquired Date T Date that the REO enters "Not Acquired" sub status Date
----------------------------------------------------------------------------------------------------------------------------
Eviction Date A Date that the REO enters "Eviction" sub status Date
----------------------------------------------------------------------------------------------------------------------------
Possession Date T Date that the REO enters "Possession" sub status Date
----------------------------------------------------------------------------------------------------------------------------
Listed Date A Date that the REO enters "Listed" sub status Date
----------------------------------------------------------------------------------------------------------------------------
Under Contract Date T Date that the REO enters "Under Contract" sub status Date
----------------------------------------------------------------------------------------------------------------------------
Estimated Sale Date A Servicer estimated closing date on loan Date
----------------------------------------------------------------------------------------------------------------------------
Days In REO A Number of Days from the REO becomes marketable to the As of Number
Date
----------------------------------------------------------------------------------------------------------------------------
Estimated Sales Price A Servicer estimated REO Sales Price Number
----------------------------------------------------------------------------------------------------------------------------
Possession Date A Date when the servicer takes possession of the property. Date we have full access
to the property, eviction completed
----------------------------------------------------------------------------------------------------------------------------
Redemption End Date A Legal time period, determined by State, when borrower can redeem their property.
Property not available for sale until redemption completed (no beginning date, just
an end date)
----------------------------------------------------------------------------------------------------------------------------
Initial Listing Price A First listing price of property. Number
----------------------------------------------------------------------------------------------------------------------------
Initial Listing Date A Date of the first listing price of property Date
----------------------------------------------------------------------------------------------------------------------------
Current List Price A Most recent listing price of property. Number
----------------------------------------------------------------------------------------------------------------------------
Current List Date A Date of the most recent listing price of property. Date
----------------------------------------------------------------------------------------------------------------------------
Reason For Default A Servicer Code representing the Reason for Default. See Enumerations worksheet.
----------------------------------------------------------------------------------------------------------------------------
LIQUIDATED LOANS (Liquidated and Paid Off loans)
----------------------------------------------------------------------------------------------------------------------------
Termination Type A Type of liquidation. See Enumerations worksheet. Text
----------------------------------------------------------------------------------------------------------------------------
Balance at Termination A Actual Principal balance at time of termination. Number
----------------------------------------------------------------------------------------------------------------------------
Scheduled Sale Date A Dates of planned sales for properties in Foreclosure Date
----------------------------------------------------------------------------------------------------------------------------
Property Sales Price A Sales price if liquidation was short sale or REO sale. Number
----------------------------------------------------------------------------------------------------------------------------
Liquidation Date A Date property liquidated. Date
----------------------------------------------------------------------------------------------------------------------------
Gross Total Proceeds A Gross Total Proceeds. Number
----------------------------------------------------------------------------------------------------------------------------
Net Total Proceeds A Gross total proceeds less expenses.
----------------------------------------------------------------------------------------------------------------------------
Principal Advanced A Total of principal advanced at time of liquidation. Number
----------------------------------------------------------------------------------------------------------------------------
Interest Advanced A Total of interest advanced at time of liquidation. Number
----------------------------------------------------------------------------------------------------------------------------
Deferred Interest T Amount of deferred interest on the loan @ liquidation Number
----------------------------------------------------------------------------------------------------------------------------
Accrued Servicing Fee Recovered T Servicing fee recovered at time of liquidation. Number
----------------------------------------------------------------------------------------------------------------------------
Corporate Advances Recovered at The amount of the Total Corporate Advance balance recovered at Number
Termination A termination
----------------------------------------------------------------------------------------------------------------------------
Escrow Advances Recovered at The amount of the Total Escrow Advance balance recovered at Number
Termination A termination
----------------------------------------------------------------------------------------------------------------------------
Commission A The broker commission amount on liquidation Number
----------------------------------------------------------------------------------------------------------------------------
Seller Concession A The dollar amt of seller concessions upon liquidation. Number
----------------------------------------------------------------------------------------------------------------------------
Taxes A Taxes paid on liquidation Number
----------------------------------------------------------------------------------------------------------------------------
Repairs A Cost of Repairs to property Number
----------------------------------------------------------------------------------------------------------------------------
Water and Sewer A Water & Sewer costs Number
----------------------------------------------------------------------------------------------------------------------------
Expenses Recovered at A The amount of the Total Expenses recovered at termination Number
Termination
----------------------------------------------------------------------------------------------------------------------------
Corporate Advances at A Corporate advance balance at time of liquidation. Number
Termination
----------------------------------------------------------------------------------------------------------------------------
Escrow Advances at Termination T Escrow advance balance at time of liquidation. Number
----------------------------------------------------------------------------------------------------------------------------
Days from Acquisition to Close A Days from Acquisition to Close Number
----------------------------------------------------------------------------------------------------------------------------
Days from Possession to Close A Days from Possession to Close Number
----------------------------------------------------------------------------------------------------------------------------
Charge-off amount A Loss amount. Number
----------------------------------------------------------------------------------------------------------------------------
Severity A Severity percentage.
Severity Formula A Formula for calculating Severity percentage. Text
----------------------------------------------------------------------------------------------------------------------------
Potential Deficiency Judgment N Flag indicating loan is referred for deficiency collections. Text
----------------------------------------------------------------------------------------------------------------------------
Flag
----------------------------------------------------------------------------------------------------------------------------
Potential Deficiency Amount N Deficiency balance reported to borrower/IRS. Number
----------------------------------------------------------------------------------------------------------------------------
Deficiency Proceeds (this N Deficiency proceeds collected in current month. Number
period)
----------------------------------------------------------------------------------------------------------------------------
Deficiency Proceeds Total (to N Deficiency proceeds collected to date. Number
date)
----------------------------------------------------------------------------------------------------------------------------
Deficiency Vendor Expense N Deficiency vendor out of pocket expenses. Number
----------------------------------------------------------------------------------------------------------------------------
Deficiency Servicer Expense N Deficiency vendor collection fee Number
----------------------------------------------------------------------------------------------------------------------------
Hazard Insurance Claim Date B Date hazard claim filed. Date
----------------------------------------------------------------------------------------------------------------------------
Hazard Insurance Claim Due Date B Date hazard claim due. Number
----------------------------------------------------------------------------------------------------------------------------
Hazard Insurance Claim Amount B Amount of hazard claim. Date
----------------------------------------------------------------------------------------------------------------------------
Hazard Insurance Claim Paid Amount of hazard claim paid to investor. Number
Amount B
----------------------------------------------------------------------------------------------------------------------------
MI Insurance Claim Date A Date MI claim filed.
----------------------------------------------------------------------------------------------------------------------------
MI Insurance Claim Due Date A Date MI claim is due to be paid.
----------------------------------------------------------------------------------------------------------------------------
MI Insurance Claim Amount A Expected MI proceeds.
----------------------------------------------------------------------------------------------------------------------------
MI Insurance Claim Paid Amount A Actual MI proceeds received.
----------------------------------------------------------------------------------------------------------------------------
Servicer Hold Back Amount B Amount servicer withholds for future trailing expenses.
----------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Interest Calculation Method
--------------------------------------------------------------------------------
3360 30/360
A360 Actual/360
A365 Actual/365
AA Actual/Actual
--------------------------------------------------------------------------------
Loan Type
--------------------------------------------------------------------------------
COMI Conventional, with mi. Collecting a premium
from the borrower for mortgage insurance and
is FHA and is VA
CONV Conventional, no mi
FHA FHA Mortgage
HEL Home Equity Line of credit
CC Credit Card
A Auto
B Boats
RV RV's
MFG Manufactured Housing
ATV ATV
VA VA Mortgage
OTH Other
--------------------------------------------------------------------------------
Occupancy Type
--------------------------------------------------------------------------------
2ND 2nd Home
NOO Non Owner Occupied
OO Owner Occupied
VA Vacant
--------------------------------------------------------------------------------
Property Type
--------------------------------------------------------------------------------
2F 2 Family
3F 3 Family
4F 4 Family
2-4F 2-4 Family
AUTO Automobile
BOAT Boat
COND Condominium
COOP Cooperative
HR-CONDO High Rise Condo
HVAC HVAC
MF Multi Family
MH Manufactured Housing
MX Mixed Use
OF Office
OTH Other
PUDA PUD - Attached
PUDD PUD - Detached
PWR PowerSports
RT Retail
RV Recreational Vehicle
SF Single Family
TH TownHouse
--------------------------------------------------------------------------------
Purpose of Loan
--------------------------------------------------------------------------------
PUR Purchase
RELO Relocation
REFI Rate/Term Refinance
CASH Cash Out Refinance
DEBT Cash Out Debt Consolidation
IMPR Cash Out Home Improvement
EDUC Cash Out Medical or Educational Expense
TIT1 Title One Home Improvement
CONST New Construction
REO Facilitate REO
--------------------------------------------------------------------------------
Status of Loan
--------------------------------------------------------------------------------
BU Bankrupt - Unknown Status
C Current
DISP Dispute
F Foreclosure
NE Non Equity (NPV of current balance < $7,500)
FB Forbearance
ID In Demand
LIT Litigation
NLS No Longer Serviced
PO Paid Off- Borrower paid down entire balance
REO Real Estate Owned - MUST Include a REO sub
status
RSLD Resolved
LIQ Liquidated - MUST include a Termination Type
U Unknown
--------------------------------------------------------------------------------
Termination Type
--------------------------------------------------------------------------------
CO Charge Off
COC Charge Off with cash possible
NLPO Negotiated Loan Payoff
NS Negotiated Sale
PO Paid Off
PPOC PPO with More Cash Possible
REOS REO Sale
TPPO Third Party Paid Off
--------------------------------------------------------------------------------
Valuation Method
--------------------------------------------------------------------------------
DB Drive By
WT Walk Through
OTH Other
APPR Appraisal
DD Due Diligence
PRFC Pre Foreclosure
SUPP Supplemental
RR Re-review
--------------------------------------------------------------------------------
REO Sub Status
--------------------------------------------------------------------------------
AC Acquired
PS Possession
EV Eviction
LS Listed
UC Under Contract
--------------------------------------------------------------------------------
Reason For Default
--------------------------------------------------------------------------------
ABP Abandonment of Property
BF Business Failure
CI Curtailment Of Income
D Death
EO Excessive Obligations
ILL Illness
ITR Inability To Rent
MD Marital Difficulties
MS Military Service
MI Mortgagor Incarcerated
N No Reason
PD Payment Dispute
PP Property Problem
SP Servicing Problems
TOP Transfer Of Ownership Pen
UC Unable To Contact
UEMP Unemployment
EXHIBIT O
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM-10-K
Re: FFMLT Trust 2006-FF13 (the "Trust") Mortgage Pass-Through
Certificates, Series 2006-FF13, issued pursuant to the Pooling
and Servicing Agreement, dated as of September 1, 2006 (the
"Pooling and Servicing Agreement"), among GS Mortgage Securities
Corp., as depositor (the "Depositor"), National City Home Loan
Services, Inc., as servicer ("NCHLS"), and Deutsche Bank
National Trust Company, as trustee (the "Trustee")
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K ("Annual
Report"), and all reports on Form 10-D (collectively with this Annual Report,
the "Reports") required to be filed in respect of period covered by this Annual
Report, of the Trust;
2. Based on my knowledge, the Reports, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
this Annual Report;
3. Based on my knowledge, all of the distribution, servicing and
other information required to be provided under Form 10-D for the period covered
by this Annual Report is included in the Reports;
4. Based on my knowledge and the compliance statements required in
this Annual Report under Item 1123 of Regulation AB, and except as disclosed in
the Reports, the Servicer has fulfilled its obligations under the Pooling and
Servicing Agreement in all material respects; and
5. All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria required to be included in this
Annual Report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules 13a-18 and 15d-18 have been included as an exhibit to this Annual Report,
except as otherwise disclosed in this Annual Report. Any material instances of
non-compliance described in such reports have been disclosed in this Annual
Report.
In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties: the Trustee
and the Servicer.
Date: _________________________
_________________________________
[Signature]
[Title]
EXHIBIT P
FORM OF TRUSTEE CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: FFMLT Trust 2006-FF13 (the "Trust") Mortgage Pass-Through
Certificates, Series 2006-FF13, issued pursuant to the Pooling and
Servicing Agreement, dated as of September 1, 2006 (the "Pooling
and Servicing Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), National City Home Loan Services,
Inc., as servicer ("NCHLS"), and Deutsche Bank National Trust
Company, as trustee (the "Trustee")
-----------------------------------------------------------------
The Trustee hereby certifies to the Depositor, and its officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal
year [___] (the "Annual Report"), and all reports on Form 10-D required to be
filed in respect of period covered by the Annual Report (collectively with the
Annual Report, the "Reports"), of the Trust;
2. To my knowledge, the Reports, taken as a whole, do not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
the Annual Report, it being understood that the Trustee is not responsible for
verifying the accuracy or completeness of information in the Reports (a)
provided by Persons other than the Trustee or any Subcontractor utilized by the
Trustee or (b) relating to Persons other than the Trustee or any Subcontractor
utilized by the Trustee as to which a Responsible Officer of the Trustee does
not have actual knowledge;
3. To my knowledge, the distribution or servicing information
required to be provided to the Trustee by the Servicer under the Pooling and
Servicing Agreement for inclusion in the Reports is included in the Reports; and
4. The report on assessment of compliance with servicing criteria
for asset-backed securities applicable to the Trustee and each Subcontractor
utilized by the Trustee and their related attestation reports on assessment of
compliance with servicing criteria applicable to it required to be included in
the Annual Report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules 13a-18 and 15d-18 has been included as an exhibit to the Annual Report.
Any material instances of non-compliance are described in such report and have
been disclosed in the Annual Report.
Date: _________________________
DEUTSCHE BANK NATIONAL TRUST COMPANY
By: _______________________________
Name: _______________________________
Title: _______________________________
EXHIBIT Q
FORM OF SERVICER CERTIFICATION TO BE PROVIDED TO DEPOSITOR
Re: FFMLT Trust 2006-FF13 (the "Trust") Mortgage Pass-Through
Certificates, Series 2006-FF13, issued pursuant to the Pooling and
Servicing Agreement, dated as of September 1, 2006 (the "Pooling
and Servicing Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), National City Home Loan Services,
Inc., as servicer ("NCHLS"), and Deutsche Bank National Trust
Company, as trustee (the "Trustee")
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The Servicer (the "Servicer"), certifies to the Depositor and the
Trustee, and their respective officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
(1) The Servicer has reviewed the servicer compliance statement of
the Servicer and the compliance statements of each Subservicer, if any, engaged
by the Servicer provided to the Depositor and the Trustee for the Trust's fiscal
year [___] in accordance with Item 1123 of Regulation AB (each a "Compliance
Statement"), the report on assessment of the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria") and reports on assessment of compliance with servicing criteria for
asset-backed securities of the Servicer and of each Subservicer or
Subcontractor, if any, engaged or utilized by the Servicer provided to the
Depositor and the Trustee for the Trust's fiscal year [___] in accordance with
Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended (the
"Exchange Act") and Item 1122 of Regulation AB (each a "Servicing Assessment"),
the registered public accounting firm's attestation report provided in
accordance with Rules 13a-18 and 15d-18 under the Exchange Act and Section
1122(b) of Regulation AB related to each Servicing Assessment (each an
"Attestation Report"), and all servicing reports, officer's certificates and
other information relating to the servicing of the Mortgage Loans by the
Servicer during 200[_] that were delivered or caused to be delivered by the
Servicer pursuant to the Agreement (collectively, the "Servicing Information");
(2) Based on the Servicer's knowledge, the Servicing Information,
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in the
light of the circumstances under which such statements were made, not misleading
with respect to the period of time covered by the Servicing Information;
(3) Based on the Company's knowledge, the servicing information
required to be provided to the Trustee by the Servicer pursuant to the Pooling
and Servicing Agreement has been provided to the Trustee;
(4) Based on the Company's knowledge and the compliance review
conducted in preparing Compliance Statement of the Servicer and, if applicable,
reviewing each Compliance Statement of each Subservicer, if any, engaged by the
Servicer, and except as disclosed Compliance Statement[(s)], Servicing
Assessment[(s)] or Attestation Report[(s)], the Servicer [(directly and through
its Subservicers, if any)] has fulfilled its obligations under the Pooling and
Servicing Agreement in all material respects.
(5) Each Servicing Assessment of the Servicer and of each
Subservicer or Subcontractor, if any, engaged or utilized by the Servicer and
its related Attestation Report required to be included in the Annual Report in
accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and
15d-18 has been provided to the Depositor and the Trustee. Any material
instances of non-compliance are described in any such Servicing Assessment or
Attestation Report.
NATIONAL CITY HOME LOAN SERVICES, INC.
Date: _________________________
_________________________________
[Signature] [Title]
EXHIBIT R
FORM OF POWER OF ATTORNEY
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
NATIONAL CITY HOME LOAN SERVICES, INC.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: _________________________________
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Deutsche Bank National Trust Company,
having its principal place of business at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000-0000, as Trustee (the "Trustee") pursuant to that Pooling and
Servicing Agreement among GS Mortgage Securities Corp. (the "Depositor"),
National City Home Loan Services, Inc. (the "Servicer"), and the Trustee, dated
as of September 1, 2006 (the "Pooling and Servicing Agreement"), hereby
constitutes and appoints the Servicer, by and through the Servicer's officers,
the Trustee's true and lawful Attorney-in-Fact, in the Trustee's name, place and
stead and for the Trustee's benefit, in connection with all mortgage loans
serviced by the Servicer pursuant to the Pooling and Servicing Agreement solely
for the purpose of performing such acts and executing such documents in the name
of the Trustee necessary and appropriate to effectuate the following enumerated
transactions in respect of any of the mortgages or deeds of trust (the
"Mortgages" and the "Deeds of Trust" respectively) and promissory notes secured
thereby (the "Mortgage Notes") for which the undersigned is acting as Trustee
for various certificateholders (whether the undersigned is named therein as
mortgagee or beneficiary or has become mortgagee by virtue of endorsement of the
Mortgage Note secured by any such Mortgage or Deed of Trust) and for which the
Servicer is acting as servicer, all subject to the terms of the Pooling and
Servicing Agreement.
This Appointment shall apply only to the following enumerated transactions and
nothing herein or in the Pooling and Servicing Agreement shall be construed to
the contrary:
(1) The modification or re-recording of a Mortgage or Deed of
Trust, where said modification or re-recording is solely for the purpose
of correcting the Mortgage or Deed of Trust to conform same to the
original intent of the parties thereto or to correct title errors
discovered after such title insurance was issued; provided that (i) said
modification or re-recording, in either instance, does not adversely
affect the lien of the Mortgage or Deed of Trust as insured and (ii)
otherwise conforms to the provisions of the Pooling and Servicing
Agreement.
(2) The subordination of the lien of a Mortgage or Deed of Trust
to an easement in favor of a public utility company of a government
agency or unit with powers of eminent domain; this section shall include,
without limitation, the execution of partial satisfactions/releases,
partial reconveyances or the execution or requests to trustees to
accomplish same.
(3) The conveyance of the properties to the mortgage insurer, or
the closing of the title to the property to be acquired as real estate
owned, or conveyance of title to real estate owned.
(4) The completion of loan assumption agreements.
(5) The full satisfaction/release of a Mortgage or Deed of Trust
or full conveyance upon payment and discharge of all sums secured
thereby, including, without limitation, cancellation of the related
Mortgage Note.
(6) The assignment of any Mortgage or Deed of Trust and the
related Mortgage Note, in connection with the repurchase of the mortgage
loan secured and evidenced thereby.
(7) The full assignment of a Mortgage or Deed of Trust upon
payment and discharge of all sums secured thereby in conjunction with the
refinancing thereof, including, without limitation, the assignment of the
related Mortgage Note.
(8) With respect to a Mortgage or Deed of Trust, the foreclosure,
the taking of a deed in lieu of foreclosure, or the completion of
judicial or non-judicial foreclosure or termination, cancellation or
rescission of any such foreclosure, including, without limitation, any
and all of the following acts:
a. the substitution of trustee(s) serving under a Deed of
Trust, in accordance with state law and the Deed of Trust;
b. the preparation and issuance of statements of breach or
non-performance;
c. the preparation and filing of notices of default and/or
notices of sale;
d. the cancellation/rescission of notices of default and/or
notices of sale;
e. the taking of deed in lieu of foreclosure; and
f. the preparation and execution of such other documents and
performance of such other actions as may be necessary under
the terms of the Mortgage, Deed of Trust or state law to
expeditiously complete said transactions in paragraphs 8.a.
through 8.e. above.
(9) With respect to the sale of property acquired through a
foreclosure or deed-in lieu of foreclosure, including, without
limitation, the execution of the following documentation:
a. listing agreements;
b. purchase and sale agreements;
x. xxxxx/warranty/quit claim deeds or any other deed causing
the transfer of title of the property to a party contracted
to purchase same;
d. escrow instructions; and
e. any and all documents necessary to effect the transfer of
property.
(10) The modification or amendment of escrow agreements
established for repairs to the mortgaged property or reserves for
replacement of personal property.
The undersigned gives said Attorney-in-Fact full power and authority to
execute such instruments and to do and perform all and every act and thing
necessary and proper to carry into effect the power or powers granted by or
under this Limited Power of Attorney as fully as the undersigned might or
could do, and hereby does ratify and confirm to all that said Attorney-in-Fact
shall be effective as of _________.
This appointment is to be construed and interpreted as a limited power of
attorney. The enumeration of specific items, rights, acts or powers herein is
not intended to, nor does it give rise to, and it is not to be construed as a
general power of attorney.
Nothing contained herein shall (i) limit in any manner any indemnification
provided by the Servicer to the Trustee under the Pooling and Servicing
Agreement, or (ii) be construed to grant the Servicer the power to initiate or
defend any suit, litigation or proceeding in the name of Deutsche Bank National
Trust Company except as specifically provided for herein. If the Servicer
receives any notice of suit, litigation or proceeding in the name of Deutsche
Bank National Trust Company, then the Servicer shall promptly forward a copy of
same to the Trustee.
This limited power of attorney is not intended to extend the powers granted to
the Servicer under the Pooling and Servicing Agreement or to allow the Servicer
to take any action with respect to Mortgages, Deeds of Trust or Mortgage Notes
not authorized by the Pooling and Servicing Agreement.
The Servicer hereby agrees to indemnify and hold the Trustee and its directors,
officers, employees and agents harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever incurred by
reason or result of or in connection with the exercise by the Servicer of the
powers granted to it hereunder. The foregoing indemnity shall survive the
termination of this Limited Power of Attorney and the Pooling and Servicing
Agreement or the earlier resignation or removal of the Trustee under the Pooling
and Servicing Agreement.
This Limited Power of Attorney is entered into and shall be governed by the laws
of the State of New York, without regard to conflicts of law principles of such
state.
Third parties without actual notice may rely upon the exercise of the power
granted under this Limited Power of Attorney; and may be satisfied that this
Limited Power of Attorney shall continue in full force and effect and has not
been revoked unless an instrument of revocation has been made in writing by the
undersigned.
IN WITNESS WHEREOF, Deutsche Bank National Trust Company as Trustee pursuant to
that Pooling and Servicing Agreement among the Depositor, the Servicer and the
Trustee, dated as of September 1, 2006 (FFMLT Trust 2006-FF13 Mortgage
Pass-Through Certificates, Series 2006-FF13), has caused its corporate seal to
be hereto affixed and these presents to be signed and acknowledged in its name
and behalf by a duly elected and authorized signatory this __ day of ________,
200__.
By: Deutsche Bank National
Trust Company
as Trustee for FFMLT Trust
2006-FF13 Mortgage
Pass-Through Certificates,
Series 2006-FF13
By: _____________________________
Name:
Title:
Acknowledged and Agreed:
National City Home Loan Services, Inc.
By: __________________________________
Name:
Title:
STATE OF ________
COUNTY OF _______
On ___________, 200__, before me, the undersigned, a Notary Public in and for
said state, personally appeared _______________, of Deutsche Bank National Trust
Company as Trustee for FFMLT Trust 2006-FF13 Mortgage Pass-Through Certificates,
Series 2006-FF13, personally known to me to be the person whose name is
subscribed to the within instrument and acknowledged to me that he/she executed
that same in his/her authorized capacity, and that by his/her signature on the
instrument the entity upon behalf of which the person acted and executed the
instrument.
WITNESS my hand and official seal.
(SEAL)
_____________________________________
Notary Public
My Commission Expires __________________
EXHIBIT S
RESPONSIBLE PARTY AGREEMENTS
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND RECOGNITION AGREEMENT, dated September 28, 2006
("Agreement"), among Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership ("Assignor"), GS Mortgage Securities Corp., a Delaware corporation
("Assignee") and First Franklin Financial Corporation, a Delaware corporation
(the "Company"):
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 (x) 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") including, without limitation, interest and principal payments
after September 1, 2006 and (b) except as described below, that certain Flow
Mortgage Loan Purchase and Warranties Agreement, dated as of February 27, 2004,
as amended by Amendment No. 1 thereto, dated as of November 29, 2004, by
Amendment No. 2 thereto, dated as of January 20, 2006 and as modified by that
certain Regulation AB Compliance Addendum, dated as of January 31, 2006 (as so
amended, the "Purchase Agreement"), between the Assignor, as purchaser (the
"Assignor"), and the Company, as seller, solely insofar as the Purchase
Agreement relates to the Mortgage Loans and (y) other than as provided below
with respect to the enforcement of representations and warranties, none of the
obligations of the Assignor under the Purchase Agreement.
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Purchase Agreement that are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement, (ii) the
rights of the Assignor under Subsection 8.05, Section 12 and Subsection 13.01 of
the Purchase Agreement, (iii) the rights retained by the Assignor pursuant to
Section 6 hereof, and (iv) any rights of the Assignor under the letter
agreement, relating to the Mortgage Loans, dated as of May 11, 2006 (the
"Purchase Price and Terms Agreement") among the Company, the Assignor and the
Servicer (as defined below).
Recognition of the Company
2. From and after the date hereof (the "Securitization Closing
Date"), the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Purchase Agreement
(solely to the extent set forth herein) and this Agreement to FFMLT Trust
2006-FF13 (the "Trust") created pursuant to a Pooling and Servicing Agreement,
dated as of September 1, 2006 (the "Pooling Agreement"), among the Assignee,
Deutsche Bank National Trust Company, as trustee (including its successors in
interest and any successor trustees under the Pooling Agreement, the "Trustee"),
and National City Home Loan Services, Inc., as servicer, (including its
successors in interest and any successor servicers under the Pooling Agreement,
the "Servicer"). The Company hereby acknowledges and agrees that from and after
the date hereof (i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations of the
Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Mortgage Loans, (iii) the Trust
(including the Trustee and the Servicer acting on the Trust's behalf) shall have
all the rights and remedies available to the Assignor, insofar as they relate to
the Mortgage Loans, under the Purchase Agreement, including, without limitation,
the enforcement of the document delivery requirements set forth in Subsection
6.03 of the Purchase Agreement, and shall be entitled to enforce all of the
obligations of the Company thereunder insofar as they relate to the Mortgage
Loans, including without limitation, the remedies for breaches of
representations and warranties set forth in Section 8.03 of the Purchase
Agreement, and (iv) all references to the Assignor (insofar as they relate to
the rights, title and interest and, with respect to obligations of the Assignor,
only insofar as they relate to the enforcement of the representations,
warranties and covenants of the Company) under the Purchase Agreement insofar as
they relate to the Mortgage Loans, shall be deemed to refer to the Trust
(including the Trustee and the Servicer acting on the Trust's behalf). Neither
the Company nor the Assignor shall amend or agree to amend, modify, waive, or
otherwise alter any of the terms or provisions of the Purchase Agreement which
amendment, modification, waiver or other alteration would in any way affect the
Mortgage Loans or the Company's performance under the Purchase Agreement with
respect to the Mortgage Loans without the prior written consent of the Trustee.
Representations and Warranties of the Company
3. The Company warrants and represents to the Assignor, the Assignee
and the Trust (including the Trustee and the Servicer acting on the Trust's
behalf) as of the date hereof that:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(b) The Company has full power and authority to execute, deliver and
perform its obligations under this Agreement. The execution by the Company of
this Agreement is in the ordinary course of the Company's business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company's charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party or by which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have been
duly authorized by all necessary corporate action on part of the Company. This
Agreement has been duly executed and delivered by the Company, and, upon the due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability may be
limited by bankruptcy, reorganization, insolvency, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
(c) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be obtained
or made by the Company in connection with the execution, delivery or performance
by the Company of this Agreement;
(d) There is no action, suit, proceeding or investigation pending
or, to the best of the company's knowledge, threatened against the Company,
before any court, administrative agency or other tribunal, which would draw into
question the validity of this Agreement or the Purchase Agreement, or which,
either in any one instance or in the aggregate, is likely to result in any
material adverse change in the ability of the Company to perform its obligations
under this Agreement or the Purchase Agreement, and the Company is solvent; and
(e) No Mortgage Loan is a High Cost or Covered Loan, as applicable,
and no Mortgage Loan originated on or after October 1, 2002 through March 6,
2003 is governed by the Georgia Fair Lending Act. For the purposes of this
Section 3(e) the following definitions shall apply:
(i) Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
(ii) Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
(iii) Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time.
(iv) 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 is defined in clause (1) of the definition of that
term in the New Jersey Home Ownership Security Act of 2002), "high risk
home," "predatory" or similar loan under any other applicable state,
federal or local law (or a similarly classified loan using different
terminology under an applicable law imposing heightened regulatory
scrutiny or additional legal liability for residential mortgage loans
having high interest rates, points and/or fees) or (c) categorized as High
Cost 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. However, this definition shall
not apply if it is wholly invalidated by a court of final jurisdiction.
4. Pursuant to Section 12 of the Purchase Agreement, the Company
hereby represents and warrants, for the benefit of the Assignor, the Assignee
and the Trust, that (i) the representations and warranties set forth in
Subsection 8.01 of the Purchase Agreement are true and correct as of the date
hereof as if such representations and warranties were made on the date hereof;
(ii) the representations and warranties set forth in Subsection 8.02 of the
Purchase Agreement are true and correct, with respect to each Mortgage Loan, as
of the Closing Date (as defined in the Purchase Agreement).
5. Solely for the purposes of this Agreement, Section 8.02(k) of the
Purchase Agreement is hereby deleted in its entirety and replaced with the
following:
"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, subject to bankruptcy laws and similar laws of
general application affecting creditor's rights and subject to the application
of the rules of equity, including those respecting the availability of specific
performance. All parties to the Mortgage Note, the Mortgage and any other such
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any such agreement, and
the Mortgage Note, the Mortgage and any other such related agreement have been
duly and properly executed by other such related parties. The documents,
instruments and agreements submitted for loan underwriting were not falsified
and contain no untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the information and
statements therein not misleading. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken place
on the part of the Seller or any other Person, including without limitation, the
Mortgagor, any appraiser, any builder or developer, or any other party involved
in the origination or servicing of the Mortgage Loan. The Seller has reviewed
all of the documents constituting the Servicing File and has made such inquiries
as it deems necessary to make and confirm the accuracy of the representations
set forth herein;"
Remedies for Breach of Representations and Warranties of the Company
6. The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee and
the Servicer acting on the Trust's behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3 and 4
hereof shall be as set forth in Subsection 8.03 of the Purchase Agreement as if
they were set forth herein (including without limitation the repurchase and
indemnity obligations set forth therein, including its obligation to repurchase
any Mortgage Loan in breach of the representations in clauses vv, ww, xx, zz,
eee, fff and hhh of Subsection 8.02 of the Purchase Agreement within not more
than 60 days of such discovery or receipt of notice of such breach).
7. In the event a Mortgage Loan is required to be repurchased
pursuant to the Purchase Agreement (including any repurchases pursuant to
Subsection 8.04 of the Purchase Agreement), the Company shall pay to (a) the
Trust the then outstanding principal balance of such Mortgage Loan as of the
date of such repurchase, plus (ii) accrued interest on such Mortgage Loan at the
mortgage interest rate from the date on which interest had last been paid
through the date of such repurchase, plus (iii) the amount of any outstanding
advances owed to the Servicer, plus (iv) all reasonable costs and expenses
incurred by the Trust, the Assignor or the Servicer arising out of or based upon
such breach, including, without limitation, reasonable costs and expenses
incurred in the enforcement of the Company's repurchase obligation thereunder
plus (v) any costs and damages incurred by the Trust, the Assignor, the Assignee
or the Servicer in connection with any violation of any applicable predatory or
abusive lending law by such Mortgage Loan and (b) the Assignor an amount equal
to the product of (i) the excess of the purchase price percentage for such
Mortgage Loan as set forth in the Purchase Price and Terms Agreement between the
Assignor and the Company over 100% and (ii) the then outstanding principal
balance of such Mortgage Loan as of the date of such repurchase. It is hereby
understood that the right to such excess over par is not being sold or assigned
hereunder and rather is being retained by the Assignor.
8. In the event a Mortgage Loan is required to be repurchased
pursuant to Paragraph O of the Purchase Price and Terms Agreement, the Company
shall pay to the Trust the Repurchase Price (as defined in the Purchase
Agreement), and the Company shall pay to the Assignor the amount by which the
repurchase price set forth in Section Q of the PPTA exceeds such Repurchase
Price.
Representations and Warranties of the Assignor
9. The Assignor warrants and represents to the Assignee and the
Trust as of the date hereof that, with respect to each Mortgage Loan:
(a) The Assignor is the sole owner of record and holder of the
Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The Mortgage
Loan is not assigned or pledged, and the Assignor has good, indefeasible and
marketable title thereto, and has full right to transfer and sell the Mortgage
Loan to the Assignee free and clear of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest, and has full right
and authority subject to no interest or participation of, or agreement with, any
other party, to sell and assign each Mortgage Loan pursuant to this Agreement
and following the sale of each Mortgage Loan, the Assignee will own such
Mortgage Loan free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest. The Assignor intends to
relinquish all rights to possess, control and monitor the Mortgage Loan;
(b) The Assignor has not waived the performance by the Mortgagor of
any action, if the Mortgagor's failure to perform such action would cause the
Mortgage Loan to be in default, nor has the Company waived any default resulting
from any action or inaction by the Mortgagor;
(c) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity and disclosure
laws, all applicable predatory and abusive lending laws or unfair and deceptive
practices applicable to the Mortgage Loan, including, without limitation, any
provisions related to Prepayment Penalties, have been complied with and the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations;
(d) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable. No Mortgage Loan is covered by the Home Ownership and Equity
Protection Act of 1994 and no Mortgage Loan is in violation of any comparable
state or local law. No Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act. For the
purposes of this Section 7(d) the following definitions shall apply:
(i) Covered Loan: A Mortgage Loan categorized as Covered
pursuant to Appendix E of Standard & Poor's Glossary.
(ii) Home Loan: A Mortgage Loan categorized as Home Loan
pursuant to Appendix E of Standard & Poor's Glossary.
(iii) Standard & Poor's Glossary: Version 5.7(d) of the
Standard & Poor's LEVELS(R) Glossary, or such version as may be in
effect from time to time.
(iv) High Cost Loan: A Mortgage Loan (a) covered by the Home
Ownership and Equity Protection Act of 1994, (b) a "high cost home,"
"threshold," "covered," (excluding New Jersey "Covered Home Loans"
as that term is defined in clause (1) of the definition of that term
in the New Jersey Home Ownership Security Act of 2002), "high risk
home," "predatory" or similar loan under any other applicable state,
federal or local law (or a similarly classified loan using different
terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having
high interest rates, points and/or fees) or (c) categorized as High
Cost pursuant to Appendix E of Standard & Poor's Glossary. For
avoidance of doubt, the parties agree that this definition shall
apply to any law regardless of whether such law is presently, or in
the future becomes, the subject of judicial review or litigation.
(e) None of the Mortgage Loans has a Prepayment Penalty period in
excess of three years; and
(f) Bring Down. To the Assignor's knowledge, nothing has occurred or
failed to occur from and after the Closing Date set forth in such Purchase
Agreement to the Securitization Closing Date that would cause any of the
representations and warranties relating to the applicable Mortgage Loans set
forth in Subsection 8.02 of such Purchase Agreement to be incorrect in any
material respects as of the date hereof as if made on the date hereof.
Remedies for Breach of Representations and Warranties of the Assignor
10. The Assignor hereby acknowledges and agrees that in the event of
any breach of any of the representations and warranties with respect to any
Mortgage Loan made by the Assignor set forth in Section 7 hereof that materially
and adversely affects the value of such Mortgage Loan or the interest of the
Assignee or the Trust therein and such breach is not cured by the Assignor, it
shall, subject to the substitution provisions set in forth in Section 11 hereof,
purchase or cause the purchase of the applicable Mortgage Loan at the Repurchase
Price (as defined in the Pooling Agreement) within 60 days of the earlier of
either discovery by or notice to the Assignor of such breach of a representation
or warranty. It is understood and agreed that the obligation of the Assignor set
forth herein to cure, repurchase or substitute for a Mortgage Loan in breach of
a representation or warranty contained in Section 8 hereof constitutes the sole
remedy of the Trust or any other person or entity against the Assignor with
respect to such breach.
Substitution Obligation for Breach of a Representation or Warranty
11. The Company and Assignor hereby acknowledge and agree that if
either the Company or the Assignor, as applicable, discovers or receives notice
of any breach of any of the representations and warranties made by the Company
in Subsection 8.02 of the Purchase Agreement or made by the Assignor pursuant to
Section 9 hereof, as applicable, within two years of the Securitization Closing
Date, the Company or the Assignor, as applicable, shall, at the Trust's option,
and provided that the Company or Assignor has a Substitute Mortgage Loan (as
defined below), rather than repurchase such Mortgage Loan as provided above,
remove such Mortgage Loan and substitute in its place a Substitute Mortgage Loan
or Mortgage Loans, provided that any such substitution shall be effected not
later than two years after the Securitization Closing Date. If the Company or
Assignor, as applicable, has no Substitute Mortgage Loan, the Company or
Assignor, as applicable, shall, if such breach is not cured, repurchase the
deficient Mortgage Loan. Any repurchase of a Mortgage Loan or Mortgage Loans
pursuant to the foregoing provisions shall be accomplished by direct remittance
of the applicable repurchase price to the Trust or its designee in accordance
with the Trust's instructions.
At the time of substitution, the Company or the Assignor, as
applicable, shall arrange for the reassignment of the deleted Mortgage Loan to
the Trust and the delivery to the Trust of any documents held by the Trustee
relating to the deleted Mortgage Loan. In the event of a substitution, the
Company or the Assignor, as applicable, shall (i) simultaneously with such
reassignment, give written notice to the Trust that such substitution has taken
place, (ii) amend or cooperate with the Trust in amending the applicable
Mortgage Loan Schedule to reflect the withdrawal of the deleted Mortgage Loan
and (iii) identify a Substitute Mortgage Loan and amend or cooperate with the
Trust in amending the applicable Mortgage Loan Schedule to reflect the addition
of such Substitute Mortgage Loan. In connection with any such substitution, the
Company or the Assignor, as applicable, shall be deemed to have made as to such
Substitute Mortgage Loan the representations and warranties set forth in
Subsection 8.02 of the Purchase Agreement except that all such representations
and warranties set forth in this Agreement shall be deemed made as of the date
of such substitution. The Assignor or Company, as applicable, shall effect such
substitution by delivering to the Trustee or to its designee the documents
required by the Pooling Agreement, with the Mortgage Note endorsed as required
by the Pooling Agreement. No substitution will be made in any calendar month
after the initial determination date for such month. The Assignor or Company, as
applicable, shall remit directly to the Trust or its designee in accordance with
the Trust's instructions, the monthly payment less the servicing fee due, if
any, on such Substitute Mortgage Loan or Mortgage Loans in the month following
the date of such substitution. Monthly payments due with respect to Substitute
Mortgage Loans in the month of substitution shall be retained by the Assignor.
For the month of substitution, distributions to the Trust shall include the
monthly payment due on any deleted Mortgage Loan in the month of substitution,
and the Assignor or Company, as applicable, shall thereafter be entitled to
retain all amounts subsequently received by the Assignor or Company, as
applicable, in respect of such deleted Mortgage Loan.
For any month in which the Company or the Assignor substitutes a
Substitute Mortgage Loan for a deleted Mortgage Loan, the Trust shall determine
the amount (if any) by which the aggregate principal balance of all Substitute
Mortgage Loans as of the date of substitution is less than the aggregate stated
principal balance of all deleted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall shall be distributed by the Assignor or the Company, as applicable,
directly to the Trust or its designee in accordance with the Trust's
instructions within two (2) business days of such substitution.
Any cause of action against the Company or the Assignor relating to
or arising out of the breach of any representations and warranties made in
Subsection 8.02 of the Purchase Agreement or Section 9 hereof, as applicable,
shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the
Trust or notice thereof by the Company or the Assignor to the Trust, (ii)
failure by the Company or the Assignor to cure such breach, repurchase such
Mortgage Loan or substitute a Substitute Mortgage Loan as specified above, and
(iii) demand upon the Company or Assignor by the Trust for compliance with this
Agreement.
A Substitute Mortgage Loan ("Substitute Mortgage Loan") is a
mortgage loan eligible to be substituted by the Company or Assignor for a
deleted Mortgage Loan which must, on the date of such substitution, (i) have an
outstanding principal balance, after deduction of all scheduled payments due in
the month of substitution (or in the case of a substitution of more than one
mortgage loan for a deleted Mortgage Loan, an aggregate principal balance), not
in excess of the outstanding principal balance of the deleted Mortgage Loan (the
amount of any shortfall will be paid by the Company or Assignor to the Trust or
its designee in the month of substitution); (ii) have a mortgage interest rate
not less than, and not more than 1% greater than, the mortgage interest rate of
the deleted Mortgage Loan; (iii) have a remaining term to maturity not greater
than, and not more than one year less than, that of the deleted Mortgage Loan;
(iv) be of the same type as the deleted Mortgage Loan (i.e., fixed rate or
adjustable rate with same Periodic Mortgage Interest Rate Cap and Index); and
(v) comply with each representation and warranty (respecting individual Mortgage
Loans) set forth in Subsection 8.02 of the Purchase Agreement.
Miscellaneous
12. This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
13. No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced, with the prior
written consent of the Trustee.
14. This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the Trustee and
the Servicer acting on the Trust's behalf). Any entity into which the Assignor,
Assignee or Company may be merged or consolidated shall, without the requirement
for any further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
15. Each of this Agreement and the Purchase Agreement shall survive
the conveyance of the Mortgage Loans and the assignment of the Purchase
Agreement (to the extent assigned hereunder) by the Assignor to the Assignee and
by Assignee to the Trust and nothing contained herein shall supersede or amend
the terms of the Purchase Agreement.
16. This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
17. In the event that any provision of this Agreement conflicts with
any provision of the Purchase Agreement with respect to the Mortgage Loans, the
terms of this Agreement shall control.
18. Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to such
terms in the Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
-------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
XXXXXXX XXXXX MORTGAGE COMPANY,
a New York limited partnership
By: XXXXXXX SACHS REAL ESTATE FUNDING
CORP., a New York corporation, its
General Partner
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
FIRST FRANKLIN FINANCIAL CORPORATION
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: EVP
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
Mortgage Loan Schedule
(Available Upon Request)
==============================================================================
FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
---------------------
XXXXXXX XXXXX MORTGAGE COMPANY
Purchaser
FIRST FRANKLIN FINANCIAL CORPORATION,
Seller
---------------------
Dated as of February 27, 2004
Conventional,
Fixed and Adjustable Rate, B/C Residential Mortgage Loans
==============================================================================
TABLE OF CONTENTS
SECTION 1. DEFINITIONS.................................................
SECTION 2. AGREEMENT TO PURCHASE.......................................
SECTION 3. MORTGAGE LOAN SCHEDULES.....................................
SECTION 4. PURCHASE PRICE..............................................
SECTION 5. EXAMINATION OF MORTGAGE FILES...............................
SECTION 6. CONVEYANCE FROM SELLER TO PURCHASER.........................
Subsection 6.01 Conveyance of Mortgage Loans..........................
Subsection 6.02 Books and Records.....................................
Subsection 6.03 Delivery of Mortgage Files............................
Subsection 6.04 Quality Control Procedures............................
SECTION 7. SERVICING OF THE MORTGAGE LOANS.............................
SECTION 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLER;
REMEDIES FOR BREACH.........................................
Subsection 8.01 Representations and Warranties Regarding the
Seller................................................
Subsection 8.02 Representations and Warranties Regarding
Individual Mortgage Loans.............................
Subsection 8.03 Remedies for Breach of Representations and
Warranties............................................
Subsection 8.04 Repurchase of Mortgage Loans With Early Payment
Defaults..............................................
Subsection 8.05 Repurchase of Certain Mortgage Loans That Prepay
in Full...............................................
SECTION 9. CLOSING.....................................................
SECTION 10. CLOSING DOCUMENTS...........................................
SECTION 11. COSTS.......................................................
SECTION 12. COOPERATION OF SELLER WITH A RECONSTITUTION.................
SECTION 13. THE SELLER..................................................
Subsection 13.01 Additional Indemnification by the Seller; Third
Party Claims..........................................
Subsection 13.02 Merger or Consolidation of the Seller.................
SECTION 14. FINANCIAL STATEMENTS........................................
SECTION 15. GRANT OF SECURITY INTEREST..................................
SECTION 16. NOTICES.....................................................
SECTION 17. SEVERABILITY CLAUSE.........................................
SECTION 18. COUNTERPARTS................................................
SECTION 19. GOVERNING LAW...............................................
SECTION 20. INTENTION OF THE PARTIES....................................
SECTION 21. SUCCESSORS AND ASSIGNS; ASSIGNMENT OF PURCHASE AGREEMENT....
SECTION 22. WAIVERS.....................................................
SECTION 23. EXHIBITS....................................................
SECTION 24. GENERAL INTERPRETIVE PRINCIPLES.............................
SECTION 25. REPRODUCTION OF DOCUMENTS...................................
SECTION 26. FURTHER AGREEMENTS..........................................
SECTION 27. RECORDATION OF ASSIGNMENTS OF MORTGAGE.ERROR! BOOKMARK NOT
DEFINED.
SECTION 28. NO SOLICITATION.............................................
SECTION 29. WAIVER OF TRIAL BY JURY.....................................
SECTION 30. SUBMISSION TO JURISDICTION; WAIVERS.........................
EXHIBITS
EXHIBIT A CONTENTS OF EACH MORTGAGE FILE
EXHIBIT B CONTENTS OF EACH CREDIT FILE
EXHIBIT C FORM OF SELLER'S OFFICER'S CERTIFICATE
EXHIBIT D FORM OF OPINION OF COUNSEL TO THE SELLER
EXHIBIT E FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT F FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT G FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT H RESERVED
EXHIBIT I RESERVED
EXHIBIT J SELLER'S UNDERWRITING GUIDELINES
EXHIBIT K RESERVED
EXHIBIT L DELINQUENT MORTGAGE LOANS
EXHIBIT M ASSIGNMENT AND CONVEYANCE
Exhibit M
FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT
This FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT (the
"Agreement"), dated as of February 27, 2004, by and between Xxxxxxx Xxxxx
Mortgage Company, a New York limited partnership, having an office at 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Purchaser") and First Franklin Financial
Corporation, a Delaware corporation, having an office at 0000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000 (the "Seller").
W I T N E S S E T H:
WHEREAS, from time to time, the Seller desires to sell to the
Purchaser, and, from time to time, the Purchaser desires to purchase from the
Seller, certain conventional adjustable and fixed rate B/C, residential first
and second lien mortgage loans (the "Mortgage Loans") on a servicing released
basis as described herein, and which shall be delivered as a pool of whole
loans;
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of trust
or other security instrument creating a first or second lien on a residential
dwelling located in the jurisdiction indicated on the related Mortgage Loan
Schedule;
WHEREAS, the Purchaser and the Seller wish to prescribe the
manner of the conveyance and control of the Mortgage Loans; and
WHEREAS, following its purchase of the Mortgage Loans from the
Seller, the Purchaser desires to sell some or all of the Mortgage Loans to one
or more purchasers as a whole loan transfer or a public or private, rated or
unrated mortgage pass-through transaction;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Purchaser and the
Seller agree as follows:
SECTION 1. Definitions.
For purposes of this Agreement the following capitalized terms shall
have the respective meanings set forth below.
Accepted Servicing Practices: With respect to any Mortgage Loan
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located and incorporating
the Delinquency Collection Policies and Procedures and in accordance with
applicable law.
Act: The National Housing Act, as amended from time to time.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan
purchased pursuant to this Agreement.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agency Transfer: A Xxxxxx Xxx Transfer or a Xxxxxxx Mac Transfer.
Agreement: This Flow Mortgage Loan Purchase and Warranties Agreement
and all amendments hereof and supplements hereto.
ALTA: The American Land Title Association or any successor thereto.
Appraised Value: (i) With respect to any First Lien Loan, the value
set forth in an appraisal made in connection with the origination of the related
Mortgage Loan as the value of the related Mortgaged Property, and (ii) with
respect to any Second Lien Loan, the value, determined pursuant to the Seller's
Underwriting Guidelines, of the related Mortgaged Property as of the origination
of the Second Lien Loan..
Appropriate Federal Banking Agency: Appropriate Federal Banking
Agency shall have the meaning ascribed to it by Section 1813(q) of Title 12 of
the United States Code, as amended from time to time.
Assignment and Assumption Agreement: As defined in Section 22.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
BIF: The Bank Insurance Fund, or any successor thereto.
Business Day: Any day other than (i) a Saturday or Sunday, (ii) a
day on which banking and savings and loan institutions in the State of New York
or executive order to be closed, or (iii) the State in which the Purchaser's or
the Seller's operations are located, are authorized or obligated by law to be
closed.
Closing Date: The date or dates set forth on the related Purchase
Price and Terms Agreement on which the Purchaser from time to time shall
purchase and the Seller from time to time shall sell, the Mortgage Loans listed
on the related Mortgage Loan Schedule
CLTV: As of any date and as to any Second Lien Loan, the ratio,
expressed as a percentage, of the (a) sum of (i) the outstanding principal
balance of the Second Lien Loan and (ii) the outstanding principal balance as of
such date of any mortgage loan or mortgage loans that are senior or equal in
priority to the Second Lien Loan and which are secured by the same Mortgaged
Property to (b) the Appraised Value.
Code: Internal Revenue Code of 1986, as amended.
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
documents contained in the related Mortgage File.
Credit File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit B annexed hereto, and any additional documents required
to be added to the credit File pursuant to this Agreement.
Custodial Agreement: The agreement between the Purchaser and the
Custodian governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other documents constituting the Mortgage
Files.
Custodian: Deutsche Bank National Trust Company, or its successor in
interest or permitted assigns, or any successor to the Custodian under the
Custodial Agreement as therein provided.
Cut-off Date: The date set forth on the related Purchase Price and
Terms Agreement.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased by the
Seller in accordance with the terms of this Agreement.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Eligible Account: Any of (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 or
Prime-1 by Xxxxx'x (or a comparable rating if another Rating Agency is specified
by the Purchaser by written notice to the Seller) at the time any amounts are
held on deposit therein, (ii) an account or accounts the deposits in which are
fully insured by the FDIC, or (iii) a trust account or accounts maintained with
a federal or state chartered depository institution or trust company acting in
its fiduciary capacity.
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.
Xxxxxx Mae: Xxxxxx Xxx, f/k/a the Federal National Mortgage
Association, or any successor thereto.
Xxxxxx Mae Guides: The Xxxxxx Xxx Selling Guide and the Xxxxxx Mae
Servicing Guide and all amendments or additions thereto.
Xxxxxx Xxx Transfer: As defined in Section 12 hereof.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
First Lien Loan: Any Mortgage Loan secured by a first lien Mortgage
on the related Mortgaged Property.
Fitch: Fitch, Inc., or its successor in interest.
Fixed Rate Mortgage Loan: A Mortgage Loan that accrues interest on a
fixed Mortgage Interest Rate set forth in the related Mortgage Note.
Xxxxxxx Mac: Xxxxxxx Mac, f/k/a the Federal Home Loan Mortgage
Corporation, or any successor thereto.
Xxxxxxx Mac Transfer: As defined in Section 13 hereof.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which amount
is added to the Index in accordance with the terms of the related Mortgage Note
to determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for such Mortgage Loan.
High Cost Loan: A Mortgage Loan classified as (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994 or (b) a "high cost,"
"threshold," "covered", "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).
Index: With respect to each Adjustable Rate Mortgage Loan, a rate
per annum set forth on Exhibit I hereto.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Insured Depository Institution: Insured Depository Institution shall
have the meaning ascribed to such term by Section 1813(c)(2) of Title 12 of the
United States Code, as amended from time to time.
Interest Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the related
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Interim Servicer: First Franklin Financial Corporation
Interim Servicing Agreement: Shall mean the servicing agreement
between the Seller and a Interim Servicer providing for the servicing and
administration of the related Mortgage Loans by such Interim Servicer for the
benefit of the Seller
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the amount per annum set forth on the related Mortgage Loan Schedule.
Limited Documentation Program: The guidelines under which the Seller
generally originates Mortgage Loans principally on the basis of the
Loan-to-Value Ratio of the related Mortgage Loan and the creditworthiness of the
Mortgagor.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise or the sale
of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the outstanding principal amount of the
Mortgage Loan as of the related Cut-off Date (unless otherwise indicated), to
the lesser of (a) the Appraised Value of the Mortgaged Property at origination
and (b) if the Mortgage Loan was made to finance the acquisition of the related
Mortgaged Property, the purchase price of the Mortgaged Property.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc., and any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien, in the case of a First Lien Loan, or
a second lien, in the case of a Second Lien Loan, on an unsubordinated estate in
fee simple in real property securing the Mortgage Note; except that with respect
to real property located in jurisdictions in which the use of leasehold estates
for residential properties is a widely-accepted practice, the mortgage, deed of
trust or other instrument securing the Mortgage Note may secure and create a
first lien, in the case of a First Lien Loan, or a second lien, in the case of a
Second Lien Loan, upon a leasehold estate of the Mortgagor.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit A annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne on the
Mortgage Note with respect to each Mortgage Loan.
Mortgage Interest Rate Cap: With respect to an Adjustable Rate
Mortgage Loan, the limit on each Mortgage Interest Rate adjustment as set forth
in the related Mortgage Note.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this Agreement, each Mortgage Loan originally sold and subject to this Agreement
being identified on the related Mortgage Loan Schedule, which Mortgage Loan
includes without limitation the Mortgage File, the Credit File, the Servicing
File, the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, Servicing Rights, Prepayment
Penalties, and all other rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan, excluding replaced or repurchased
mortgage loans.
Mortgage Loan Package: A pool of Mortgage Loans sold to the
Purchaser by the Seller on a Closing Date.
Mortgage Loan Schedule: With respect to each Mortgage Loan Package,
a schedule of Mortgage Loans annexed to the related Assignment and Conveyance as
Exhibit 1, setting forth the following information with respect to each Mortgage
Loan: (1) the Seller's Mortgage Loan identifying number; (2) the Mortgagor's
name; (3) the street address of the Mortgaged Property including the city, state
and zip code; (4) a code indicating whether the Mortgaged Property is
owner-occupied, a second home or investment property; (5) the number and type of
residential units constituting the Mortgaged Property (i.e. a single family
residence, a 2-4 family residence, a unit in a condominium project or a unit in
a planned unit development, manufactured housing); (6) the original months to
maturity or the remaining months to maturity from the related Cut-off Date, in
any case based on the original amortization schedule and, if different, the
maturity expressed in the same manner but based on the actual amortization
schedule; (7) the Loan-to-Value Ratio at origination; (8) with respect to First
Lien Loans, the LTV and with respect to Second Lien Loans, the CLTV; (9) the
Mortgage Interest Rate as of the related Cut-off Date; (10) the date on which
the Monthly Payment was due on the Mortgage Loan and, if such date is not
consistent with the Due Date currently in effect, such Due Date; (11) the stated
maturity date; (12) the amount of the Monthly Payment as of the related Cut-off
Date; (13) the last payment date on which a Monthly Payment was actually applied
to pay interest and the outstanding principal balance; (14) the original
principal amount of the Mortgage Loan; (15) 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; (16) with respect to Adjustable Rate Mortgage Loans, the Interest
Rate Adjustment Date; (17) with respect to Adjustable Rate Mortgage Loans, the
Gross Margin; (18) with respect to Adjustable Rate Mortgage Loans, the Lifetime
Rate Cap under the terms of the Mortgage Note; (19) with respect to Adjustable
Rate Mortgage Loans, a code indicating the type of Index; (20) with respect to
Adjustable Rate Mortgage Loans, the Periodic Rate Cap under the terms of the
Mortgage Note; (21) with respect to Adjustable Rate Mortgage Loans, the Periodic
Rate Floor under the terms of the Mortgage Note; (22) the type of Mortgage Loan
(i.e., Fixed Rate, Adjustable Rate); (23) a code indicating the purpose of the
loan (i.e., purchase, rate and term refinance, equity take-out refinance); (24)
a code indicating the documentation style (i.e. full, alternative or reduced);
(25) the loan credit classification (as described in the Underwriting
Guidelines); (26) whether such Mortgage Loan provides for a Prepayment Penalty;
(27) the Prepayment Penalty period of such Mortgage Loan, if applicable; (28)
the Mortgage Interest Rate as of origination; (29) the credit risk score (FICO
score) at origination; (30) the date of origination; (31) the Mortgage Interest
Rate adjustment period; (32) the Mortgage Interest Rate floor; (33) the Mortgage
Interest Rate calculation method (i.e., 30/360, simple interest, other); (34) a
code indicating whether the Mortgage Loan is a Section 32 Mortgage Loan; (35) a
code indicating whether the Mortgage Loan is assumable; (36) a code indicating
whether the Mortgage Loan has been modified; (37) the one year payment history;
(38) the Due Date for the first Monthly Payment; (39) the original Monthly
Payment due; (40) with respect to the related Mortgagor, the debt-to-income
ratio; (41) the Appraised Value of the Mortgaged Property; and (42) the sales
price of the Mortgaged Property if the Mortgage Loan was originated in
connection with the purchase of the Mortgaged Property. With respect to the
Mortgage Loans in the aggregate, the 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; and (4) the weighted average maturity of the Mortgage Loans.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: The Mortgage Interest Rate with respect
to a Mortgage Loan minus the Servicing Fee Rate payable to the Servicer.
OCC: Office of the Comptroller of the Currency, and its successors
in interest.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or a President or a Vice President and
by the Treasurer or the Secretary or one of the Assistant Treasurers or
Assistant Secretaries of the Seller, and delivered to the Purchaser as required
by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
for the Seller, reasonably acceptable to the Purchaser. .
OTS: Office of Thrift Supervision, and any successor thereto.
Periodic Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase 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 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.
Preliminary Mortgage Loan Schedule: As defined in Section 3.
Prepayment Penalty: With respect to each Mortgage Loan, the fee, if
any, payable upon the prepayment, in whole or in part, of such Mortgage Loan, as
set forth in the related Mortgage Note.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal (Northeast
edition).
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
including any Prepayment Penalty or premium thereon and which is not accompanied
by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Purchase Price: The price paid on the related Closing Date by the
Purchaser to the Seller in exchange for the Mortgage Loans in a Mortgage Loan
Package as calculated in Section 4 of this Agreement.
Purchase Price and Terms Agreement: With respect to each purchase of
a Mortgage Loan Package hereunder, that certain letter agreement setting forth
the general terms and conditions of such transaction consummated herein and
identifying the Mortgage Loans to be purchased hereunder, by and between the
Seller and the Purchaser.
Purchaser: Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership, and its successors in interest and assigns, and any successor to
the Purchaser under this Agreement as herein provided.
Qualified Appraiser: An appraiser, duly appointed by the Seller, who
had no interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by such appraiser both satisfy the requirements of Title XI of
the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
Qualified Insurer: An insurance company duly qualified as such under
the laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, approved as an insurer by Xxxxxx
Mae and Xxxxxxx Mac and whose claims paying ability is rated in the highest
rating category by any of the Rating Agencies with respect to primary mortgage
insurance and in the two highest rating categories by A.M. Best's with respect
to hazard and flood insurance (or such other rating as may be required by a
Rating Agency in connection with a Securitization Transfer in order to achieve
the desired ratings for the securities to be issued in connection with such
Securitization Transfer)..
Rating Agency: Any of Fitch, Moody's or Standard & Poor's, or their
respective successors designated by the Purchaser.
Reconstitution: A Whole Loan Transfer, Agency Transfer or a
Securitization Transfer.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1, Subtitle A of the Code, and related provisions and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Repurchase Price: With respect to any Mortgage Loan for which a
breach of a representation or warranty under this Agreement is found, a price
equal to the then outstanding principal balance of the Mortgage Loan to be
repurchased, plus accrued interest thereon at the Mortgage Interest Rate from
the date on which interest had last been paid through the date of such
repurchase, plus the amount of any outstanding advances owed to any servicer,
and plus all costs and expenses incurred by the Purchaser or any servicer
arising out of or based upon such breach, including without limitation costs and
expenses incurred in the enforcement of the Seller's repurchase obligation
hereunder.
RESPA: Real Estate Settlement Procedures Act, as amended from time
to time.
Second Lien Loan: A Mortgage Loan secured by a second lien Mortgage
on the related Mortgaged Property.
Securitization Transfer: The sale or transfer of some or all of the
Mortgage Loans to a trust or other entity as part of a publicly-issued or
privately-placed, rated or unrated mortgage pass-through or other
mortgage-backed securities transaction.
Seller: First Franklin Financial Corporation, its successors in
interest and assigns.
Servicing Agreement: An agreement entered into by the Purchaser and
the Successor Servicer, providing for the Successor Servicer to service the
Mortgage Loans as specified by the Servicing Agreement after the termination of
any Interim Servicer by the Purchaser.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Interim Servicer consisting of originals of all documents in the
Mortgage File which are not delivered to the Purchaser or the Custodian and
copies of the documents in the Mortgage File which have been delivered to the
Custodian as provided in Section 6.03 hereof.
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received by
the Seller or Servicer for servicing the Mortgage Loans; (c) any late fees,
penalties or similar payments with respect to the Mortgage Loans but not
including any Prepayment Penalties; (d) all agreements or documents creating,
defining or evidencing any such servicing rights to the extent they relate to
such servicing rights and all rights of the Seller thereunder; (e) Escrow
Payments or other similar payments with respect to the Mortgage Loans and any
amounts actually collected by the Seller with respect thereto; (f) all accounts
and other rights to payment related to any of the property described in this
paragraph; and (g) any and all documents, files, records, servicing files,
servicing documents, servicing records, data tapes, computer records, or other
information pertaining to the Mortgage Loans or pertaining to the past, present
or prospective servicing of the Mortgage Loans.
Standard & Poor's: Standard & Poor's Rating Services, a division of
The XxXxxx-Xxxx Companies Inc., and its successors in interest.
Stated Principal Balance: As to each Mortgage Loan, (i) the
principal balance of the Mortgage Loan at the related Cut-off Date after giving
effect to payments of principal due on or before such date, to the extent
actually received, minus (ii) all amounts previously distributed to the
Purchaser with respect to the related Mortgage Loan representing payments or
recoveries of principal.
Successor Servicer: Any servicer appointed by the Purchaser pursuant
to the Servicing Agreement.
Transfer Date: The date on which the Purchaser, or its designee,
shall receive the transfer of servicing responsibilities and begin to perform
the servicing of all or a portion of the Mortgage Loans, and the Interim
Servicer shall cease all servicing responsibilities under the Interim Servicing
Agreement, as set forth in the related Purchase Price and Terms Agreement.
Underwriting Guidelines: The underwriting guidelines of the Seller,
a copy of which is attached hereto as Exhibit J.
Well Capitalized: Well Capitalized shall mean, with respect to any
Insured Depository Institution, the maintenance by such Insured Depository
Institution of capital ratios at or above the required minimum levels for such
capital category under the regulations promulgated pursuant to Section 1831(o)
of the United States Code, as amended from time to time, by the Appropriate
Federal Banking Agency for such institution, as such regulation may be amended
from time to time.
Whole Loan Transfer: The sale or transfer by Purchaser of some or
all of the Mortgage Loans in a whole loan or participation format.
SECTION 2. Agreement to Purchase.
The Seller, on each related Closing Date, agrees to sell, and the
Purchaser agrees to purchase, Mortgage Loans having an aggregate principal
balance on the related Cut-off Date in an amount as set forth in the related
Purchase Price and Terms Agreement, or in such other amount as agreed by the
Purchaser and the Seller as evidenced by the aggregate principal balance of the
Mortgage Loans accepted by the Purchaser on the related Closing Date.
SECTION 3. Mortgage Loan Schedules.
The Seller shall provide the Purchaser with certain information
constituting a preliminary listing of the Mortgage Loans in the Mortgage Loan
Package to be purchased on a Closing Date in accordance with the related
Purchase Price and Terms Agreement and this Agreement (a "Preliminary Mortgage
Schedule").
The Seller shall deliver the related Mortgage Loan Schedule for the
Mortgage Loans in the Mortgage Loan Package to be purchased on a Closing Date to
the Purchaser at least two (2) Business Days prior to the related Closing Date
or such later date on which the Purchaser has identified to the Seller the final
list of Mortgage Loans the Purchaser desires to purchase. The Mortgage Loan
Schedule shall be the Preliminary Mortgage Loan Schedule with any Mortgage Loans
which have not been funded prior to the Closing Date deleted.
SECTION 4. Purchase Price.
The Purchase Price for each Mortgage Loan in the related Mortgage
Loan Package shall be the percentage of par as stated in the related Purchase
Price and Terms Agreement (subject to adjustment as provided therein),
multiplied by the aggregate principal balance, as of the related Cut-off Date,
of the Mortgage Loans, after application of scheduled payments of principal due
on or before the related Cut-off Date, to the extent such payments were actually
received. The initial principal amount of the Mortgage Loans in the related
Mortgage Loan Package shall be the aggregate principal balance of the Mortgage
Loans, so computed as of the related Cut-off Date as set forth on the related
Mortgage Loan Schedule. If so provided in the related Purchase Price and Terms
Agreement, portions of the Mortgage Loans shall be priced separately.
In addition to the Purchase Price as described above, the Purchaser
shall pay to the Seller, at closing, accrued interest on the current principal
amount of the Mortgage Loans in the related Mortgage Loan Package at the
weighted average Mortgage Interest Rate of those Mortgage Loans from the related
paid through date through the date prior to the related Closing Date, inclusive.
The Servicing Fee will not be applicable until the Closing Date. The Purchase
Price plus accrued interest as set forth in the preceding paragraph shall be
paid to the Seller by wire transfer of immediately available funds to an account
designated by the Seller in writing.
The Purchaser shall be entitled to (l) all scheduled principal due
after the related Cut-off Date, (2) all other recoveries of principal collected
on or after the related Cut-off Date, and (3) all payments of interest on the
Mortgage Loans (minus that portion of any such payment which is allocable to the
period prior to the related Cut-off Date). The outstanding principal balance of
each Mortgage Loan as of the related Cut-off Date is determined after
application of payments of principal due on or before the related Cut-off Date,
to the extent actually collected, together with any unscheduled principal
prepayments collected prior to the related Cut-off Date; provided, however, that
payments of scheduled principal and interest paid prior to the related Cut-off
Date, but to be applied on 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 shall be the property of the Purchaser. The Seller cause any such
prepaid amounts to be remitted to the Interim Servicer for subsequent remittance
to the Purchaser.
SECTION 5. Examination of Mortgage Files.
At least five (5) Business Days prior to the related Closing Date
(or, with respect to not more than 25% of the Mortgage Loans, at least three (3)
Business Days prior to the related Closing Date), the Seller shall deliver to
the Purchaser or its designee in escrow, for examination with respect to each
Mortgage Loan in the related Mortgage Loan Package to be purchased, the related
Mortgage File, including a copy of the Assignment of Mortgage, pertaining to
each Mortgage Loan.
At least five (5) Business Days prior to the related Closing Date,
with respect to each Mortgage Loan in the related Mortgage Loan Package to be
purchased, the Seller shall make the related Servicing Files and Credit Files
available to the Purchaser for examination at such other location as shall
otherwise be acceptable to the Purchaser.
Such examination of the Mortgage Files may be made by the Purchaser
or its designee at any reasonable time before or after the related Closing Date.
If the Purchaser makes such examination prior to the related Closing Date and
determines, in its reasonable discretion, that any Mortgage Loans are
unacceptable to the Purchaser for any reason, such Mortgage Loans shall be
deleted from the related Mortgage Loan Schedule. The Purchaser may, at its
option and without notice to the Seller, purchase some or all of the Mortgage
Loans without conducting any partial or complete examination. The fact that the
Purchaser or its designee has conducted or has failed to conduct any partial or
complete examination of the Mortgage Files or the Credit Files shall not affect
the Purchaser's (or any of its successor's) rights to demand repurchase,
substitution or other relief as provided herein.
In the event that the Seller fails to deliver the Credit Files with
respect to any Mortgage Loan after the related Closing Date, the Seller shall,
upon the request of the Purchaser, repurchase such Mortgage Loan at the price
and in the manner specified in Subsection 9.03.
SECTION 6. Conveyance from Seller to Purchaser.
Subsection 6.01. Conveyance of Mortgage Loans.
The Seller, on each related Closing Date, does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse, but
subject to the terms of this Agreement, all rights, title and interest of the
Seller in and to the Mortgage Loans in the related Mortgage Loan Package,
together with the Servicing Rights, the Mortgage Files, the Servicing and Credit
Files, and all rights and obligations arising under the documents contained
therein for each Mortgage Loan in the related Mortgage Loan Package.
Subsection 6.02. Books and Records.
Record title to each Mortgage as of the related Closing Date shall
be in the name of the Seller, an Affiliate of the Seller, the Purchaser or one
or more designees of the Purchaser, as the Purchaser shall select.
Notwithstanding the foregoing, each Mortgage and related Mortgage Note shall be
possessed solely by the Purchaser or the appropriate designee of the Purchaser,
as the case may be. All rights arising out of the Mortgage Loans including, but
not limited to, all funds received by the Seller after the related Cut-off Date
on or in connection with a Mortgage Loan shall be vested in the Purchaser or one
or more designees of the Purchaser; provided, however, that all funds received
on or in connection with a Mortgage Loan shall be received and held by the
Seller or the Interim 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.
The sale of each Mortgage Loan shall be reflected on the Seller's
balance sheet and other financial statements as a sale of assets by the Seller.
Subsection 6.03. Delivery of Mortgage Files.
The Seller shall, as directed by the Purchaser, deliver and release
to the Custodian no later than five (5) Business Days prior to the related
Closing Date (or, with respect to not more than 25% of the Mortgage Loans, at
least three (3) Business Days prior to the related Closing Date) the Mortgage
Files with respect to each Mortgage Loan in the related Mortgage Loan Package to
be purchased by the Purchaser on the related Closing Date.
The Custodian shall certify its receipt of all such Mortgage Files
for the related Closing Date to the Purchaser, as evidenced by the Initial
Certification of the Custodian in the form annexed to the Custodial Agreement.
The Seller shall forward to the Custodian, or to such other Person
as the Purchaser shall designate in writing, original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution, provided, however, that the Seller shall provide the Custodian, or to
such other Person as the Purchaser shall designate in writing, with a certified
true copy of any such document submitted for recordation within two weeks of its
execution, and shall promptly provide the original of any document submitted for
recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within ninety
days of its submission for recordation.
In the event any document listed on Exhibit A as constituting a part
of the Mortgage Files and required to be delivered to the Custodian pursuant to
this Section 6.03, including an original or copy of any document submitted for
recordation to the appropriate public recording office, is not so delivered to
the Custodian, or to such other Person as the Purchaser shall designate in
writing, on the related Closing Date (other than with respect to the Assignments
of Mortgage which shall be delivered to the Custodian in blank on or prior to
the related Closing Date and recorded subsequently by the Purchaser or its
designee or document submitted for recordation to the appropriate public
recording office), and in the event that the Seller does not cure such failure
within 30 days of discovery or receipt of written notification of such failure
from the Purchaser, the related Mortgage Loan shall, upon the request of the
Purchaser, be repurchased by the Seller at the price and in the manner specified
in Subsection 9.03. The foregoing repurchase obligation shall not apply in the
event that the Seller cannot deliver an original document submitted for
recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided that (i) the Seller shall instead deliver a recording
receipt of such recording office or, if such recording receipt is not available,
an officer's certificate of an officer of the Seller, confirming that such
documents have been accepted for recording; provided that, upon request of the
Purchaser and delivery by the Purchaser to the Seller of a schedule of the
Mortgage Loans, the Seller shall reissue and deliver to the Purchaser or its
designee said officer's certificate and (ii) such document is delivered within
180 calendar days of the related Closing Date, provided, that, in the event such
document cannot be delivered within 180 calendar days because of a delay caused
by the public recording office in returning any recorded document, the Seller
shall deliver to the Purchaser an Officer's Certificate which shall (i) identify
the recorded document, (ii) state that the recorded document has not been
delivered to the Custodian due solely to a delay caused by the public recording
office, (iii) state the amount of time generally required by the applicable
recording office to record and return a document submitted for recordation, and
(iv) specify the date the applicable recorded document will be delivered to the
Custodian. An extension of the date specified in (iv) above may be requested
from the Purchaser, which consent shall not be unreasonably withheld. Any such
document shall be delivered to the Purchaser or its designee not later than 12
months from 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 Mortgage and shall be
reimbursed by the Seller for the costs associated therewith pursuant to the
preceding sentence.
Subsection 6.04. Quality Control Procedures.
The Seller shall have an internal quality control program that
verifies, on a regular basis, the existence and accuracy of the legal documents,
credit documents, property appraisals, and underwriting decisions. The program
shall include evaluating and monitoring the overall quality of the Seller's loan
production and the servicing activities of the Seller. The program is to ensure
that the Mortgage Loans are originated and serviced in accordance with Accepted
Servicing Practices and the Underwriting Guidelines; guard against dishonest,
fraudulent, or negligent acts; and guard against errors and omissions by
officers, employees, or other authorized persons.
SECTION 7. Servicing of the Mortgage Loans.
The Mortgage Loans have been sold by the Seller to the Purchaser on
a servicing released basis. For the period beginning on the related Closing Date
and ending on the related Transfer Date, the Seller shall cause each Interim
Servicer to service and administer the Mortgage Loans for the benefit of the
Purchaser in accordance with the related Interim Servicing Agreement. The Seller
shall take any actions necessary to cause each Interim Servicer to terminate
servicing the Mortgage Loans on behalf of the Seller. In such connection the
Seller shall cause each Interim Servicer to enter into an Assignment, Assumption
and Recognition Agreement (each, an "Assignment Agreement") whereby the related
Interim Servicer will recognize the Purchaser as the owner of the Mortgage Loans
and shall service and administer such Mortgage Loans for the benefit of the
Purchaser on an interim servicing basis.
In addition, the Seller shall, or shall cause the Interim Servicer
to notify the related mortgagors of the transfer of servicing to the Successor
Servicer in accordance with the requirements of the RESPA and the Xxxxxxxx
Xxxxxxxx National Affordable Housing Act of 1990. On or before the related
Transfer Date, the Seller shall or shall cause the Interim Servicer to prepare,
execute and deliver to the Servicer any and all documents and other instruments,
place in the Successor Servicer's possession all Mortgage Loan Documents
necessary or appropriate to effect the purposes of such notice of termination,
including but not limited to the transfer and endorsement or assignment of the
related Mortgage Loans and related documents, at the Seller's sole expense. The
Seller shall, and shall cause the Interim Servicer to cooperate fully with the
Purchaser and the Successor Servicer in effecting the termination of the Interim
Servicer's responsibilities and rights with respect to the servicing and
administration of the Mortgage Loans.
On the related Transfer Date, the Servicer shall, and shall cause
the Interim Servicer to comply with this Section 7 and the Interim Servicing
Agreement to effect a complete transfer of the servicing and administration of
the Mortgage Loans.
SECTION 8. Representations, Warranties and Covenants of the Seller;
Remedies for Breach.
Subsection 8.01. Representations and Warranties Regarding the
Seller.
The Seller represents, warrants and covenants to the Purchaser that
as of the date hereof and as of each Closing Date:
(a) Due Organization and Authority. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Delaware and is an operating subsidiary of National City Bank of Indiana [and
has all licenses necessary to carry on its business as now being conducted and
is licensed, qualified and in good standing in each state wherein it owns or
leases any material properties or where a Mortgaged Property is located, if the
laws of such state require licensing or qualification in order to conduct
business of the type conducted by the Seller, and in any event the Seller is in
compliance with the laws of any such state to the extent necessary to ensure the
enforceability of the related Mortgage Loan in accordance with the terms of this
Agreement;]. As a national bank operating subsidiary, it is regulated by the
Office of the Comptroller of the Currency and is subject to applicable laws and
regulations. Seller is duly authorized to originate Mortgage Loans and to carry
on its business as now being conducted as an operating subsidiary of a national
bank. The Seller has the full corporate power, authority and legal right to
hold, transfer and convey the Mortgage Loans and to execute and deliver this
Agreement and to perform its obligations hereunder; the execution, delivery and
performance of this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by the Seller and the consummation of the
transactions contemplated hereby have been duly and validly authorized; this
Agreement and all agreements contemplated hereby have been duly executed and
delivered and constitute the valid, legal, binding and enforceable obligations
of the Seller, regardless of whether such enforcement is sought in a proceeding
in equity or at law; and all requisite corporate action has been taken by the
Seller to make this Agreement and all agreements contemplated hereby valid and
binding upon the Seller in accordance with their terms, subject to: (1)
bankruptcy, reorganization, insolvency, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, including, without
limitation, the effect of statutory or ether laws regarding fraudulent
conveyances or preferential transfers, and (2) general principles of equity upon
the specific enforceability of any of the remedies, covenants or other
provisions of the Purchase Agreement and upon the availability of injunctive
relief or other equitable remedies and the application of principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) as such principles relate to, limit or affect the enforcement
of creditors' rights generally and the discretion of the court before which any
proceeding for such enforcement may be brought;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by the Seller,
the sale of the Mortgage Loans to the Purchaser, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Seller's charter or by-laws
or any legal restriction or any agreement or instrument to which the Seller is
now a party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Seller or its property
is subject, or result in the creation or imposition of any lien, charge or
encumbrance that would have an adverse effect upon any of its properties
pursuant to the terms of any mortgage, contract, deed of trust or other
instrument, or impair the ability of the Purchaser to realize on the Mortgage
Loans, impair the value of the Mortgage Loans, or impair the ability of the
Purchaser to realize the full amount of any insurance benefits accruing pursuant
to this Agreement;
(d) Ability to Perform; Solvency. The Seller does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement. The Seller is solvent and the sale
of the Mortgage Loans will not cause the Seller to become insolvent. The sale of
the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud
any of Seller's creditors;
(e) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Seller, before any court,
administrative agency or other tribunal asserting the invalidity of this
Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted, or in any material liability on the
part of the Seller, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Seller contemplated herein, or which
would be likely to impair materially the ability of the Seller to perform under
the terms of this Agreement;
(f) No Consent Required. No consent, approval, authorization or
order of, or registration or filing with, or notice to any court or governmental
agency or body is required for the execution, delivery and performance by the
Seller of or compliance by the Seller with this Agreement or the Mortgage Loans,
the delivery of a portion of the Mortgage Files to the Custodian or the sale of
the Mortgage Loans or the consummation of the transactions contemplated by this
Agreement, or if required, such approval has been obtained prior to the related
Closing Date;
(g) Selection Process. The Mortgage Loans were selected from among
the outstanding one- to four-family mortgage loans in the Seller's portfolio at
the related Closing Date as to which the representations and warranties set
forth in Subsection 9.02 could be made and such selection was not made in a
manner so as to affect adversely the interests of the Purchaser;
(h) Delivery to the Custodian. The Mortgage Note, the Mortgage, the
Assignment of Mortgage and any other documents required to be delivered with
respect to each Mortgage Loan pursuant to Section 6.03 hereof, shall be
delivered to the Custodian. With respect to each Mortgage Loan, the Seller will
be in possession of a complete Mortgage File in compliance with Exhibit A
hereto, except for such documents as will be delivered to the Custodian;
(i) Mortgage Loan Characteristics. The characteristics of the
Mortgage Loans are as set forth on the description of the pool characteristics
for the Mortgage Loans delivered pursuant to Section 11 on the related Closing
Date in the form attached as Exhibit I hereto;
(j) No Untrue Information. Neither this Agreement nor any
information, statement, tape, diskette, report, form, or other document
furnished or to be furnished pursuant to this Agreement or in connection with
the transactions contemplated hereby (including any Securitization Transfer 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;
(k) Financial Statements. The Seller has delivered to the Purchaser
financial statements as to its last three completed fiscal years and any later
quarter ended more than 60 days prior to the execution of this Agreement. All
such financial statements fairly present the pertinent results of operations and
changes in financial position for each of such periods and the financial
position at the end of each such period of the Seller and its subsidiaries and
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth in the
notes thereto. There has been no change in the business, operations, financial
condition, properties or assets of the Seller since the date of the Seller's
financial statements that would have a material adverse effect on its ability to
perform its obligations under this Agreement. The Seller has completed any forms
requested by the Purchaser in a timely manner and in accordance with the
provided instructions;
(l) 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;
(m) Sale Treatment. The Seller intends to reflect the transfer of
the Mortgage Loans as a sale on the books and records of the Seller and the
Seller has determined that the disposition of the Mortgage Loans pursuant to
this Agreement will be afforded sale treatment for tax and accounting purposes;
(n) Reasonable Purchase Price. The Seller deems the consideration
received upon the sale of the Mortgage Loans under this Agreement to be fair
consideration and reasonably equivalent value for the Mortgage Loans;
(o) Seller's Origination. The Seller's decision to originate any
mortgage loan or to deny any mortgage loan application is an independent
decision based upon Seller's underwriting guidelines, and is in no way made as a
result of Purchaser's decision to purchase, or not to purchase, or the price
Purchaser may offer to pay for, any such mortgage loan, if originated; and
(p) Owner of Record. The Seller is the owner of record of each
Mortgage and the indebtedness evidenced by each Mortgage Note, except for the
Assignments of Mortgage which have been sent for recording, and upon recordation
the Seller will be the owner of record of each Mortgage and the indebtedness
evidenced by each Mortgage Note.
Subsection 8.02. Representations and Warranties Regarding Individual
Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser that, as
to each Mortgage Loan, as of the related Closing Date for such Mortgage Loan:
(a) Mortgage Loans as Described. The information set forth in the
related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage Note,
other than payments not yet 30 days delinquent, 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. The first Monthly Payment after the
related Cut-off Date shall be made with respect to the Mortgage Loan on its Due
Date or within the month the payment is due, all in accordance with the terms of
the related Mortgage Note;
(c) No Outstanding Charges. There are no defaults in complying with
the terms of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or an escrow of funds has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable. The
Seller has not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor, directly or indirectly,
for the payment of any amount required under the Mortgage Loan, except for
interest accruing from the date of the Mortgage Note or date of disbursement of
the Mortgage Loan proceeds, whichever is earlier, to the day which precedes by
one month the Due Date of the first installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any respect,
from and after 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 title insurer, if any, to the extent
required by the policy, and its terms are reflected on the related Mortgage Loan
Schedule, if applicable. No Mortgagor has been released, in whole or in part,
except in connection with an assumption agreement, approved by the issuer of the
title insurer, to the extent required by the policy, and which assumption
agreement is part of the Mortgage Loan File delivered to the Custodian or to
such other Person as the Purchaser shall designate in writing and the terms of
which are reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and no Mortgagor
was a debtor in any state or Federal bankruptcy or insolvency proceeding, at, or
subsequent to, the time the Mortgage Loan was originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are provided for in the Xxxxxx Mae 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
is in effect which policy conforms to Xxxxxx Mae or Xxxxxxx Mac. All individual
insurance policies contain a standard mortgagee clause naming the Seller and its
successors and assigns as mortgagee, and all premiums thereon have been paid.
The Mortgage obligates the Mortgagor thereunder to maintain the hazard insurance
policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such insurance
at such Mortgagor's cost and expense, and to seek reimbursement therefor from
the Mortgagor. Where required by state law or regulation, the Mortgagor has been
given an opportunity to choose the carrier of the required hazard insurance,
provided the policy is not a "master" or "blanket" hazard insurance policy
covering a condominium, or any hazard insurance policy covering the common
facilities of a planned unit development. The hazard insurance policy is the
valid and binding obligation of the insurer, is in full force and effect, and
will be in full force and effect and inure to the benefit of the Purchaser upon
the consummation of the transactions contemplated by this Agreement. The Seller
has not engaged in, and has no knowledge of the Mortgagor's or any servicer's
having engaged in, any act or omission which would impair the coverage of any
such policy, the benefits of the endorsement provided for herein, or the
validity and binding effect of such policy, without limitation, and no unlawful
fee, commission, kickback or other unlawful compensation or value of any kind
has been or will be received, retained or realized by any attorney, firm or
other person or entity, and no such unlawful items have been received, retained
or realized by the Seller;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity and disclosure laws, all applicable predatory and
abusive lending laws, or unfair and deceptive practices laws applicable to the
Mortgage Loans have been complied with, the consummation of the transactions
contemplated hereby will not involve the violation of any such laws or
regulations;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission. The Seller has not waived
the performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has the
Seller waived any default resulting from any action or inaction by the
Mortgagor;
(i) Location and Type of Mortgaged Property. The Mortgaged Property
is located in the state identified in the related Mortgage Loan Schedule and
consists of real property with a detached single family residence erected
thereon, or an individual condominium unit an individual unit in a planned unit
development or a de minimis planned unit development stories or less, provided,
however, that any mobile home (double wide only) or manufactured dwelling shall
conform with the applicable Xxxxxx Mae and Xxxxxxx Mac requirements regarding
such dwellings and that no Mortgage Loan is secured by a single parcel of real
property with a cooperative housing corporation or, except as described in
Exhibit I, a mobile home erected thereon or by a mixed-use property, a property
in excess of 10 acres, or other unique property types. As of the date of
origination, no portion of the Mortgaged Property was used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes; provided, that Mortgaged
Properties which contain a home office shall not be considered as being used for
commercial purposes as long as the Mortgaged Property has not been altered for
commercial purposes and is not storing any chemicals or raw materials other than
those commonly used for homeowner repair, maintenance and/or household purposes.
With respect to any Mortgage Loan secured by a Mortgaged Property improved by
manufactured housing, (i) the related manufactured housing unit is permanently
affixed to the land, and (ii) the related manufactured housing unit and the
related land are subject to a Mortgage properly filed in the appropriate public
recording office and naming the Seller as mortgagee.
(j) Valid First or Second Lien. Each Mortgage is a valid,
subsisting, enforceable and perfected first lien, with respect to First Lien
Loans, or second lien, with respect to Second Lien Loans, of record on a single
parcel of real estate constituting the Mortgaged Property, including all
buildings and improvements on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems located
in or annexed to such buildings, and all additions, alterations and replacements
made at any time, with respect to the foregoing. The lien of the Mortgage is
subject only to:
(1) with respect to Second Lien Loans, the lien of the first
mortgage on the Mortgaged Property;
(2) the lien of current real property taxes and assessments
not yet due and payable;
(3) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to prudent mortgage lending institutions
generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan
and (a) specifically referred to or otherwise considered in the
appraisal made for the originator of the Mortgage Loan or (b) which
do not adversely affect the Appraised Value of the Mortgaged
Property set forth in such appraisal; and
(4) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected (A) first lien and first priority security
interest with respect to each First Lien Loan, or (B) second lien and second
priority security interest with respect to each Second Lien Loan, in either
case, on the property described therein and Seller has full right to sell and
assign the same to the Purchaser;
(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its
terms, subject to bankruptcy laws and similar laws of general application
affecting creditor's rights and subject to the application of the rules of
equity, including those respecting the availability of specific performance. All
parties to the Mortgage Note, the Mortgage and any other such related agreement
had legal capacity to enter into the Mortgage Loan and to execute and deliver
the Mortgage Note, the Mortgage and any such agreement, and the Mortgage Note,
the Mortgage and any other such related agreement have been duly and properly
executed by other such related parties. The documents, instruments and
agreements submitted for loan underwriting were not falsified and contain no
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the information and statements therein
not misleading. No fraud, error, omission, misrepresentation, negligence or
similar occurrence with respect to a Mortgage Loan has taken place on the part
of the Seller, or, to the best of the Seller's knowledge, any other Person,
including without limitation, the Mortgagor, any appraiser, any builder or
developer, or any other party involved in the origination or servicing of the
Mortgage Loan. The Seller has reviewed all of the documents constituting the
Servicing File and has made such inquiries as it deems necessary to make and
confirm the accuracy of the representations set forth herein;
(l) Full Disbursement of Proceeds. The Mortgage Loan has been closed
and the proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage with the exception of
proceeds due under the Seller's dividend loan program;
(m) Ownership. The Seller is the sole owner of record and holder of
the Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The
Mortgage Loan is not assigned or pledged, and the Seller has good, indefeasible
and marketable title thereto, and has full right to transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest, and
has full right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan pursuant
to this Agreement and following the sale of each Mortgage Loan, the Purchaser
will own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest. The
Seller intends to relinquish all rights to possess, control and monitor the
Mortgage Loan. After the related Closing Date, the Seller will have no right to
modify or alter the terms of the sale of the Mortgage Loan and the Seller will
have no obligation or right to repurchase the Mortgage Loan or substitute
another Mortgage Loan, except as provided in this Agreement;
(n) Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property is located, and (2) either (i) organized
under the laws of such state, or (ii) qualified to do business in such state, or
(iii) a federal savings and loan association, a savings bank or a national bank
having a principal office in such state, or (3) not doing business in such
state;
(o) LTV; CLTV. No Mortgage Loan has an LTV or CLTV greater than
100%.
(p) Title Insurance. The Mortgage Loan is covered by an ALTA
lender's title insurance policy, or with respect to any Mortgage Loan for which
the related Mortgaged Property is located in California a CLTA lender's title
insurance policy, or other generally acceptable form of policy or insurance
acceptable to Xxxxxx Xxx or Xxxxxxx Mac and each such title insurance policy is
issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified
to do business in the jurisdiction where the Mortgaged Property is located,
insuring the Seller, its successors and assigns, as to the first or second
priority lien of the Mortgage in the original principal amount of the Mortgage
Loan, subject only to the exceptions contained in clauses (1) and (2) of
paragraph (j) of this Subsection 9.02, and in the case of Adjustable Rate
Mortgage Loans, against any loss by reason of the invalidity or unenforceability
of the lien resulting from the provisions of the Mortgage providing for
adjustment to the Mortgage Interest Rate and Monthly Payment. Where required by
state law or regulation, the Mortgagor has been given the opportunity to choose
the carrier of the required mortgage title insurance. Additionally, such
lender's title insurance policy affirmatively insures ingress and egress, and
against encroachments by or upon the Mortgaged Property or any interest therein.
The title policy does not contain any special exceptions (other than the
standard exclusions) for zoning and uses and has been marked to delete the
standard survey exception or to replace the standard survey exception with a
specific survey reading. The Seller, its successors and assigns, are the sole
insureds of such lender's title insurance policy, and such lender's title
insurance policy is valid and remains in full force and effect and will be in
force and effect upon the consummation of the transactions contemplated by this
Agreement. No claims have been made under such lender's title insurance policy,
and no prior holder of the related Mortgage, has done, by act or omission,
anything which would impair the coverage of such lender's title insurance
policy, , and Seller has not done, by act or omission, anything that would
impair the coverage of such lender's title insurance policy. 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. With respect to each Second Lien Loan,
(i) the prior mortgage is in full force and effect, (ii) there is no default,
breach, violation or event of acceleration existing under such prior mortgage or
the related mortgage note, (iii) no event which, with the passage of time or
with notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration thereunder, and either (A)
the prior mortgage contains a provision which allows or (B) applicable law
requires, the mortgagee under the Second Lien Loan to receive notice of, and
affords such mortgagee an opportunity to cure any default by payment in full or
otherwise under the prior mortgage;
(r) No Mechanics' Liens. Except as insured against by the title
insurance policy, 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. Except as insured
against by the title insurance policy, 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. At the time the Mortgage Loan was
originated, the originator was a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to Sections 203 and 211 of the National Housing
Act, a savings and loan association, a savings bank, a commercial bank, an
operating subsidiary of a national bank, credit union, insurance company or
other similar institution which is supervised and examined by a federal or state
authority. The documents, instruments and agreements submitted for loan
underwriting were not falsified and contain no untrue statement of material fact
or omit to state a material fact required to be stated therein or necessary to
make the information and statements therein not misleading. No Mortgage Loan
contains terms or provisions which would result in negative amortization.
Principal payments on the Mortgage Loan commenced no more than sixty days after
funds were disbursed in connection with the Mortgage Loan. The Mortgage Interest
Rate as well as the Lifetime Rate Cap and the Periodic Rate Cap, are as set
forth on Exhibit I hereto. The Mortgage Note is payable in equal monthly
installments of principal and interest, which installments of interest, with
respect to Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment Date,
with interest calculated and payable in arrears, sufficient to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of not
more than thirty years from commencement of amortization. Unless otherwise
specified on the description of pool characteristics attached as Exhibit I
hereto, the Mortgage Loan is payable on the first day of each month;
(u) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver good
and merchantable title to the Mortgaged Property. There is no homestead or other
exemption available to a Mortgagor which would interfere with the right to sell
the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage, subject to applicable federal and state laws and judicial precedent
with respect to bankruptcy and right of redemption or similar law;
(v) Conformance with Agency and Underwriting Standards. The Mortgage
Loan was underwritten in accordance with the Underwriting Standards (a copy of
which is attached hereto as Exhibit J). The Mortgage Note and Mortgage are on
forms acceptable to Xxxxxxx Mac or Xxxxxx Mae and the Seller has not made any
representations to a Mortgagor that are inconsistent with the mortgage
instruments used;
(w) Occupancy of the Mortgaged Property. As of the related Closing
Date the Mortgaged Property is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or obtained from
the appropriate authorities;
(x) No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding Mortgage and
the security interest of any applicable security agreement or chattel mortgage
referred to in clause (j) above;
(y) Deeds of Trust. In the event the Mortgage constitutes a deed of
trust, a trustee, authorized and duly qualified under applicable law to serve as
such, has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Purchaser to
the trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(z) Acceptable Investment. There are no circumstances or conditions
with respect to the Mortgage, the Mortgaged Property, the Mortgagor, the
Mortgage File or the Mortgagor's credit standing that can reasonably be expected
to cause private institutional investors to regard the Mortgage Loan as an
unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value or marketability of the Mortgage Loan.;
(aa) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents required to be
delivered under the Custodial Agreement for each Mortgage Loan have been
delivered to the Custodian. The Seller is in possession of a complete, true and
accurate Mortgage File in compliance with Exhibit A hereto, except for such
documents the originals of which have been delivered to the Custodian;
(bb) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project such Mortgage Loan was originated in accordance with, and the Mortgaged
Property meets the guidelines set forth in the Seller's Underwriting Guidelines;
(cc) Transfer of Mortgage Loans. The Assignment of Mortgage with
respect to each Mortgage Loan is in recordable form and is acceptable for
recording under the laws of the jurisdiction in which the Mortgaged Property is
located. The transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Seller are not subject to the bulk transfer or similar
statutory provisions in effect in any applicable jurisdiction;
(dd) Due-On-Sale. With respect to each Fixed Rate Mortgage Loan, the
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent of
the mortgagee thereunder, and to the best of the Seller's knowledge, such
provision is enforceable;
(ee) Assumability. With respect to each Adjustable Rate Mortgage
Loan, the documents contained in the Mortgage File provide that after the first
Interest Rate Adjustment Date of each such Adjustable Rate Mortgage Loan, such
Adjustable Rate Mortgage Loan may only be assumed if the party assuming such
Adjustable Rate Mortgage Loan meets certain credit requirements stated in the
documents contained in the related Mortgage File related Mortgage Loan
Documents;
(ff) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any separate
account established by the Seller, the Mortgagor, or anyone on behalf of the
Mortgagor, or paid by any source other than the Mortgagor nor does it contain
any other similar provisions which may constitute a "buydown" provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature;
(gg) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the related Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first or second, as applicable, 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;
(hh) Mortgaged Property Undamaged; No Condemnation Proceedings.
There is no proceeding pending or threatened for the total or partial
condemnation of the Mortgaged Property. The Mortgaged Property is undamaged by
waste, fire, earthquake or earth movement, windstorm, flood, tornado or other
casualty so as to affect adversely the value of the Mortgaged Property as
security for the Mortgage Loan or the use for which the premises were intended
and each Mortgaged Property is in good repair. There have not been any
condemnation proceedings with respect to the Mortgaged Property and the Seller
has no knowledge that any such proceedings is contemplated;
(ii) Collection Practices; Escrow Deposits; Interest Rate
Adjustments. The origination, servicing and collection practices used by the
Interim Servicer, the Seller and any prior servicer with respect to the Mortgage
Loan have been in all respects in compliance with Accepted Servicing Practices,
applicable laws and regulations, and have been in all respects legal and proper
and prudent in the mortgage origination and servicing business. With respect to
escrow deposits and Escrow Payments (other than with respect to Second Lien
Loans for which the mortgagee under the prior mortgage lien is collecting Escrow
Payments), all such payments are in the possession of, or under the control of,
the Interim Servicer or 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 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. An escrow of funds
is not prohibited by applicable law. 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;
(jj) Other Insurance Policies. No action, inaction or event has
occurred and no state of facts exists or has existed that has resulted or will
result in the exclusion from, denial of, or defense to coverage under any
applicable, special hazard insurance policy, or bankruptcy bond, irrespective of
the cause of such failure of coverage. In connection with the placement of any
such insurance, no commission, fee, or other compensation has been or will be
received by the Seller or by any officer, director, or employee of the Seller or
any designee of the Seller or any corporation in which the Seller or any
officer, director, or employee had a financial interest at the time of placement
of such insurance;
(kk) No Violation of Environmental Laws. The Mortgaged Property is
free from any and all toxic or hazardous substances and there exists no
violation of any local, state or federal environmental law, rule or regulation.
There is no pending action or proceeding directly involving the Mortgaged
Property in which compliance with any environmental law, rule or regulation is
an issue; there is no violation of any environmental law, rule or regulation
with respect to the Mortgaged 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 of 2003. The Mortgagor has not
notified the Seller, and the Seller has no knowledge of any relief requested or
allowed to the Mortgagor under the Servicemembers Civil Relief Act of 2003, as
amended from time to time;
(mm) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by a Qualified Appraiser, duly appointed by the 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 the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989 and the regulations
promulgated thereunder, all as in effect on the date the Mortgage Loan was
originated or pursuant to Seller's automated appraisal methodology as set forth
in the Seller's Underwriting Guidelines;
(nn) Disclosure Materials. The Seller has complied with, all
applicable law with respect to the making of the Mortgage Loans;
(oo) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction or rehabilitation of
a Mortgaged Property or facilitating the trade-in or exchange of a Mortgaged
Property;
(pp) Value of Mortgaged Property. The Seller has no knowledge of any
circumstances existing that could reasonably be expected to adversely affect the
value or the marketability of any Mortgaged Property or Mortgage Loan;
(qq) No Defense to Insurance Coverage. The Seller has caused or will
cause to be performed any and all acts required to preserve the rights and
remedies of the Purchaser in any insurance policies applicable to the Mortgage
Loans including, without limitation, any necessary notifications of insurers,
assignments of policies or interests therein, and establishments of coinsured,
joint loss payee and mortgagee rights in favor of the Purchaser. No action has
been taken or failed to be taken, no event has occurred and no state of facts
exists or has existed on or prior to the related Closing Date (whether or not
known to the Seller on or prior to such date) which has resulted or will result
in an exclusion from, denial of, or defense to coverage under any primary
mortgage insurance (including, without limitation, any exclusions, denials or
defenses which would limit or reduce the availability of the timely payment of
the full amount of the loss otherwise due thereunder to the insured) whether
arising out of actions, representations, errors, omissions, negligence, or fraud
of the Seller, the related Mortgagor or any party involved in the application
for such coverage, including the appraisal, plans and specifications and other
exhibits or documents submitted therewith to the insurer under such insurance
policy, or for any other reason under such coverage, but not including the
failure of such insurer to pay by reason of such insurer's breach of such
insurance policy or such insurer's financial inability to pay;
(rr) Escrow Analysis. With respect to each Mortgage, the Seller has
within the last twelve months (unless such Mortgage was originated within such
twelve month period) analyzed any 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;
(ss) Prior Servicing. Each Mortgage Loan has been serviced in all
material respects in strict compliance with Accepted Servicing Practices and the
Interim Servicer has reported the Mortgagor credit files to each of the three
credit repositories in a timely manner;
(tt) 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 from furnishing
the same to any subsequent or prospective purchaser of such Mortgage, subject to
Purchaser's and the subsequent or prospective purchaser's adherence to
applicable federal and state credit reporting and privacy laws and regulations,
including, but not limited to the Fair Credit Reporting Act and the Gramm Xxxxx
Xxxxxx Act. The Seller shall hold the Purchaser harmless from any and all
damages, losses, costs and expenses (including attorney's fees actually
incurred) arising from disclosure of credit information in connection with the
Purchaser's secondary marketing operations and the purchase and sale of
mortgages or Servicing Rights thereto, unless such damage, loss, cost and
expense arises out of Purchaser's noncompliance with applicable federal or state
credit reporting and privacy laws and regulations. The Seller has or has caused
the related servicer to, for each Mortgage Loan, 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;
(uu) Leaseholds. If the Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple interest in
the land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent and
the acquisition by the holder of the Mortgage of the rights of the lessee upon
foreclosure or assignment in lieu of foreclosure or provide the holder of the
Mortgage with substantially similar protections; (3) the terms of such lease do
not (a) allow the termination thereof upon the lessee's default without the
holder of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease in the
event of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to the
Mortgaged Property or (d) permit any increase in rent other than pre-established
increases set forth in the lease; (4) the original term of such lease is not
less than 15 years; (5) the term of such lease does not terminate earlier than
five years after the maturity date of the Mortgage Note; and (6) the Mortgaged
Property is located in a jurisdiction in which the use of leasehold estates in
transferring ownership in residential properties is a widely accepted practice;
(vv) Prepayment Penalty. Each Mortgage Loan is subject to a
Prepayment Penalty as provided in the related Mortgage Note unless otherwise
indicated on the related Mortgage Loan Schedule, and (i) with respect to
Mortgage Loans originated prior to October 1, 2002, no Mortgage Loan has a
Prepayment Penalty period in excess of five years, and (ii) with respect to
Mortgage Loans originated on or after October 1, 2002, no Mortgage Loan has a
Prepayment Penalty period in excess of five years;
(ww) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan. 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. None of
the Mortgage Loans that are secured by residential real property in North
Carolina contains prepayment penalties that (i) exceed, in the aggregate, more
that two percent of the amount prepaid or (ii) may be collected more than 30
months after loan closing;
(xx) 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 a single-premium credit life insurance policy;
(yy) Tax Service Contract; Flood Certification Contract. Each
Mortgage Loan is covered by a paid in full, life of loan, tax service contract
and a paid in full, life of loan, flood certification contract and each of these
contracts is assignable to the Purchaser;
(zz) Qualified Mortgage. The Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code;
(aaa) Regarding the Mortgagor. The Mortgagor is one or more natural
persons and/or trustees for an Illinois land trust or a trustee under a "living
trust" and such "living trust" is in compliance with applicable law;
(bbb) 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;
(ccc) FICO Scores. Each Mortgagor has a non-zero FICO score. No
Mortgage Loan has a Mortgagor with a FICO score of less than 500;
(ddd) Compliance with Anti-Money Laundering Laws. Each Mortgage Loan
was originated in compliance with, and the Seller is in compliance with, all
applicable anti-money laundering laws, including the relevant provisions of the
Bank Secrecy Act, as amended by the USA Patriot Act of 2001 and its implementing
regulations, and related government rules and regulations (collectively, the
"Patriot Act"); the Seller has established an anti-money laundering compliance
program and, with respect to the Patriot Act , has (i) developed internal
policies, procedures and controls reasonably designed to prevent it from being
used for money laundering or the financing of terrorist activities, (ii)
designated a compliance officer, (iii) implemented an ongoing employee training
program and (iv) developed an independent audit function to test the compliance
program;
(eee) Georgia Fair Lending Act. There is no Mortgage Loan that was
originated on or after October 1, 2002 and on or prior to March 7, 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;
(fff) Credit Reporting. The Seller has furnished or has caused the
Interim Servicer to furnish, in accordance with the Fair Credit Reporting Act
accurate and complete information on its borrower credit files with respect to
each Mortgage Loan to Equifax, Experian and Trans Union Credit Information
Company, on a monthly basis;
(ggg) New York State Banking Law. There is no Mortgage Loan that (a)
is secured by property located in the State of New York; (b) had an original
principal balance of $300,000 or less, and (c) has an application date on or
after April 1, 2003, the terms of which loan equal or exceed either the annual
percentage rate or the points and fees threshold for "high-cost home loans," as
defined in Section 6-L of the New York State Banking Law.
(hhh) Xxxxxx Mae's Required Representations. The Seller represents
and warrants to the Purchaser that as of the related Closing Date or as of such
date specifically provided herein:
(1) Each Mortgage Loan is in compliance with the
anti-predatory lending eligibility for purchase requirements of the
Xxxxxx Xxx Guide;
(2) No Mortgage Loan is a "High Cost Home Loan" as defined in
New York Banking Law 6-1;
(3) No Mortgage Loan is a "High Cost Home Loan" as defined in
the Arkansas Home Loan Protection Act effective July 16, 2003 (Act
1340 of 2003);
(4) No Mortgage Loan is a "High Cost Home Loan" as defined in
the Kentucky high-cost home loan statute effective June 24, 2003
(Ky. Rev. Stat. Section 360.100);
(5) No borrower was encouraged or required to select a
Mortgage Loan product offered by the Mortgage Loan's originator
which is a higher cost product designed for less creditworthy
borrowers, unless at the time of the Mortgage Loan's origination,
such borrower did not qualify taking into account credit history and
debt to income ratios for a lower cost credit product then offered
by the Mortgage Loan's originator or any affiliate of the Mortgage
Loan's originator. If, at the time of loan application, the borrower
may have qualified for a for a lower cost credit product then
offered by any mortgage lending affiliate of the Mortgage Loan's
originator, the Mortgage Loan's originator referred the borrower's
application to such affiliate for underwriting consideration;
(6) The methodology used in underwriting the extension of
credit for each Mortgage Loan employs objective mathematical
principles which relate the borrower's income, assets and
liabilities to the proposed payment and such underwriting
methodology does not rely on the extent of the borrower's equity in
the collateral as the principal determining factor in approving such
credit extension. Such underwriting methodology confirmed that at
the time of origination (application/approval) the borrower had a
reasonable ability to make timely payments on the Mortgage Loan;
(7) With respect to any Mortgage Loan that contains a
provision permitting imposition of a premium upon a prepayment prior
to maturity: (i) prior to the loan's origination, the borrower
agreed to such premium in exchange for a monetary benefit, including
but not limited to a rate or fee reduction, (ii) prior to the loan's
origination, the borrower was offered the option of obtaining a
mortgage loan that did not require payment of such a premium, (iii)
the prepayment premium is disclosed to the borrower in the loan
documents pursuant to applicable state and federal law, and (iv)
notwithstanding any state or federal law to the contrary, the
Company shall not impose such prepayment premium in any instance
when the mortgage debt is accelerated as the result of the
borrower's default in making the loan payments;
(8) No borrower was required to purchase any credit life,
disability, accident or health insurance product as a condition of
obtaining the extension of credit. No borrower obtained a prepaid
single premium credit life, disability, accident or health insurance
policy in connection with the origination of the Mortgage Loan; No
proceeds from any Mortgage Loan were used to purchase single premium
credit insurance policies as part of the origination of, or as a
condition to closing, such Mortgage Loan;
(9) All points and fees related to each Mortgage Loan were
disclosed in writing to the borrower in accordance with applicable
state and federal law and regulation. Except in the case of a
Mortgage Loan in an original principal amount of less than $60,000
which would have resulted in an unprofitable origination, no
borrower was charged "points and fees" (whether or not financed) in
an amount greater than 5% of the principal amount of such loan, such
5% limitation is calculated in accordance with Xxxxxx Mae's
anti-predatory lending requirements as set forth in the Xxxxxx Xxx
Guide.
(10) All fees and charges (including finance charges) and
whether or not financed, assessed, collected or to be collected in
connection with the origination and servicing of each Mortgage Loan
has been disclosed in writing to the borrower in accordance with
applicable state and federal law and regulation; and
(11) The Company will transmit full-file credit reporting data
for each Mortgage Loan pursuant to Xxxxxx Mae Guide Announcement
95-19 and that for each Mortgage Loan, Company agrees it shall
report one of the following statuses each month as follows: new
origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off.
Subsection 8.03. Remedies for Breach of Representations and
Warranties.
It is understood and agreed that the representations and warranties
set forth in Subsections 8.01 and 8.02 shall survive the sale of the Mortgage
Loans to the Purchaser 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 Mortgage
File and notwithstanding the fact that any such representation or warranty was
made to the best of the Seller's knowledge. Upon discovery by either the Seller
or the Purchaser of a material breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the other.
Within 60 days of the earlier of either discovery by or notice to
the Seller of any breach of a representation or warranty which materially and
adversely affects the value of the Mortgage Loans or the interest of the
Purchaser therein (or which materially and adversely affects the value of the
applicable Mortgage Loan or the interest of the Purchaser therein in the case of
a representation and warranty relating to a particular Mortgage Loan), the
Seller shall use its best efforts promptly to cure such breach in all material
respects and, if such breach cannot be cured, the Seller shall, at the
Purchaser's option, repurchase such Mortgage Loan (a "Deleted Mortgage Loan") at
the Repurchase Price, together with all expenses incurred by the Purchaser as a
result of such repurchase. Notwithstanding the above sentence, within 60 days of
the earlier of either discovery by, or notice to, the Seller of any breach of
the representations or warranties set forth in clauses (vv), (ww), (xx), (eee)
or (ggg) of Subsection 8.02, 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 8.01, and such breach cannot
be cured within 60 days of the earlier of either discovery by or notice to the
Seller of such breach, all of the Mortgage Loans shall, at the Purchaser's
option, be repurchased by the Seller at the Repurchase Price. Any repurchase of
a Mortgage Loan or Loans pursuant to the foregoing provisions of this Subsection
9.03 shall be accomplished by direct remittance of the Repurchase Price to the
Purchaser or its designee in accordance with the Purchaser's instructions.
At the time of repurchase, the Purchaser and the Seller shall
arrange for the reassignment of the Deleted Mortgage Loan to the Seller and the
delivery to the Seller of any documents held by the Custodian relating to the
Deleted Mortgage Loan. The Seller shall, simultaneously with such reassignment,
give written notice to the Purchaser that such repurchase has taken place and
amend the related Mortgage Loan Schedule to reflect the withdrawal of the
Deleted Mortgage Loan from this Agreement.
In addition to such repurchase obligation, the Seller shall
indemnify the Purchaser and its assignees and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees which are actually incurred 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 material breach of the Seller
representations and warranties contained in this Agreement. It is understood and
agreed that the obligations of the Seller set forth in this Subsection 8.03 to
cure or repurchase a defective Mortgage Loan and to indemnify the Purchaser as
provided in this Subsection 8.03 constitute the sole remedies of the Purchaser
respecting a breach of the foregoing representations and warranties. For
purposes of this paragraph, "Purchaser" shall mean the Person then acting as the
Purchaser under this Agreement and any and all Persons who previously were
"Purchasers" under this Agreement and "Successor Servicer" shall mean the Person
then acting as the Successor Servicer under this Agreement and any and all
Persons who previously were "Successor Servicers" under this Agreement.
Any cause of action against the Seller relating to or arising out of
the breach of any representations and warranties made in Subsections 8.01 and
8.02 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by
the Seller to cure such breach or repurchase such Mortgage Loan as specified
above, and (iii) demand upon the Seller by the Purchaser for compliance with
this Agreement.
Subsection 8.04. Repurchase of Mortgage Loans With Early Payment
Defaults.
If the related Mortgagor is delinquent after the related Closing
Date with respect to the Mortgage Loan's first Monthly Payment by more than 30
days or more following the related Due Date first occurring after the related
Closing Date, the Seller, at the Purchaser's option exercised in its sole
discretion, shall repurchase such Mortgage Loan from the Purchaser within thirty
(30) Business Days following the Purchaser's request therefor at a price equal
to the percentage of par as stated in the related Purchase Price and Terms
Agreement (subject to adjustment as provided therein) multiplied by the then
outstanding principal balance of such Mortgage Loan, plus accrued and unpaid
interest thereon from the date to which interest was last paid through the day
prior to the repurchase date at the applicable Mortgage Interest Rate, plus any
outstanding advances owed to any servicer in connection with such Mortgage Loan.
Subsection 8.05. Repurchase of Certain Mortgage Loans That Prepay in
Full.
With respect to Mortgage Loans without Prepayment Penalties, in the
event that any such Mortgage Loan is prepaid in full on or before the earlier to
occur of (i) the date which is six (6) months after the related Closing Date and
(ii) the date on which the Mortgage Loan becomes subject to any Securitization
Transfer that is a mortgage backed-security net interest margin (NIM)
transaction, the Seller shall pay the Purchaser, within thirty (30) Business
Days of Seller's receipt of notification of such prepayment in full, the
difference between (a) the Purchase Price (as adjusted) for such Mortgage Loan
and (b) the sum of the outstanding principal balance of such Mortgage Loan as of
the related Cut-off Date.
SECTION 9. Closing.
Each closing for the purchase and sale of the Mortgage Loans shall
take place on the related Closing Date. At the Purchaser's option, each Closing
shall be either: by telephone, confirmed by letter or wire as the parties shall
agree, or conducted in person, at such place as the parties shall agree.
The closing for the Mortgage Loans to be purchased on each Closing
Date shall be subject to each of the following conditions:
(i) at least two Business Days prior to the related Closing Date,
the Seller shall deliver to the Purchaser via electronic
medium acceptable to the Purchaser, a listing on a loan-level
basis of the necessary information to compute the Purchase
Price of the Mortgage Loans delivered on the related Closing
Date (including accrued interest), and prepare the related
Mortgage Loan Schedule;
(ii) all of the representations and warranties of the Seller under
this Agreement and the Interim Servicing Agreement shall be
true and correct as of the related Closing Date and no event
shall have occurred which, with notice or the passage of time,
would constitute a default under this Agreement;
(iii) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all closing documents
as specified in Section 11 of this Agreement, in such forms as
are agreed upon and acceptable to the Purchaser, duly executed
by all signatories other than the Purchaser as required
pursuant to the terms hereof;
(iv) the Seller shall have delivered and released to the Custodian
all documents required pursuant to Section 6.03 hereof; and
(v) all other terms and conditions of this Agreement and the
related Purchase Price and Terms Agreement shall have been
complied with.
Subject to the foregoing conditions, the Purchaser shall pay to the
Seller on the related Closing Date the Purchase Price, plus accrued interest
pursuant to Section 4 of this Agreement, by wire transfer of immediately
available funds to the account designated by the Seller.
SECTION 10. Closing Documents.
(a) The Closing Documents for the Mortgage Loans to be purchased on
the initial Closing Date shall consist of fully executed originals of the
following documents:
1. this Agreement;
2. a copy of the Interim Servicing Agreement, certified by the
Seller as true and correct;
3. an Assignment Agreement relating to each Interim Servicing
Agreement;
4. an Officer's Certificate, in the form of Exhibit E hereto with
respect to the Seller, including all attachments thereto;
5. an Opinion of Counsel of the Seller (who may be an employee of
the Seller), in the form of Exhibit F hereto ("Opinion of
Counsel of the Seller");
6. the Underwriting Guidelines to be attached hereto as Exhibit
J; and
(b) The Closing Documents to be delivered on each Closing Date shall
consist of fully executed originals of the following documents:
1. an Assignment and Conveyance in the form of Exhibit M hereto,
including all exhibits;
2. an acknowledgment agreement with respect to the related
Interim Servicing Agreement;
3. a Purchase Price and Terms Agreement;
4. the related Mortgage Loan Schedule, with one copy to be
attached to the related Assignment and Conveyance;
5. each of the documents required to be delivered by the Seller
pursuant to Section 6.03 hereof;
6. the initial certification of the Custodian with respect to the
related Mortgage Loan Package;
7. a Security Release Certification, substantially in the form of
Exhibit E or F, as applicable,, hereto executed by any person,
as requested by the Purchaser, if any of the Mortgage Loans
have at any time been subject to any security interest, pledge
or hypothecation for the benefit of such person; and
8. a certificate or other evidence of merger or change of name,
signed or stamped by the applicable regulatory authority, if
any of the Mortgage Loans were acquired by the Seller by
merger or acquired or originated by the Seller while
conducting business under a name other than its present name,
if applicable.
9. if requested by the Purchaser in connection with a material
change in Seller's financial condition or corporate structure,
an updated Officer's Certificate, in the form of Exhibit
hereto, including all attachments thereto and an updated
Opinion of Counsel of the Seller, in the form of Exhibit D
hereto.
The Seller shall bear the risk of loss of the closing documents
until such time as they are received by the Purchaser or its attorneys.
SECTION 11. 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
Loans and the Servicing Rights 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. In addition, the
Seller shall pay any Outstanding Charges as described in Subsection 8.02(c)
hereof that become known to the Purchaser up to the related Closing Date.
SECTION 12. Cooperation of Seller with a Reconstitution.
The Seller and the Purchaser agree that with respect to some or all
of the Mortgage Loans, after the related Closing Date, on one or more dates
(each a "Reconstitution Date") at the Purchaser's sole option, the Purchaser may
effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans
then subject to this Agreement, without recourse, to:
(i) Xxxxxx Xxx under its Cash Purchase Program or MBS Program
(Special Servicing Option) (each a "Xxxxxx Mae Transfer"); or
(ii) Xxxxxxx Mac (the "Xxxxxxx Mac Transfer"); or
(iii) one or more third party purchasers in one or more Whole Loan
Transfers; or
(iv) one or more trusts or other entities to be formed as part of
one or more Securitization Transfers.
With respect to any Reconstitution, the Seller agrees to cooperate
with the Purchaser, any prospective purchaser, any rating agency or any party to
any agreement executed in connection with such Reconstitution, with respect to
all reasonable requests and due diligence procedures and to use its best efforts
to facilitate such Reconstitution, provided that Purchaser shall give Seller at
least fifteen (15) Business Days notice of such proposed Reconstitution and
provided further that: (x) Seller shall review and approve any document that
Purchaser, any prospective purchaser, rating agency or other party to a
Reconstitution requests that Seller execute; (y) Seller's obligations under any
such document shall not exceed its obligations to Purchaser under the Purchase
Agreement, and (z) Purchaser shall bear all expenses incurred by Seller in
connection with the Reconstitution. Notwithstanding anything set forth in the
preceding sentence, Seller agrees to enter into a The Seller agrees to enter
into an assignment, assumption and recognition agreement pursuant to which the
Seller assigns the representations and warranties and remedies in the Purchase
Agreement to the related Reconstitution.
All Mortgage Loans whether or not sold or transferred pursuant to a
Reconstitution shall remain subject to this Agreement and with respect thereto
this Agreement shall remain in full force and effect.
SECTION 13. The Seller.
Subsection 13.01. Additional Indemnification by the Seller; Third
Party Claims.
The Seller shall indemnify the Purchaser and its assignees and hold
it harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, legal fees (including (without limitation) legal fees incurred in
connection with the enforcement of the Seller's indemnification obligation under
this Subsection 14.01) and related costs, judgments, and any other costs, fees
and expenses that the Purchaser or its assignees may sustain in any way related
to the failure of the Seller to perform its duties under this Agreement and the
Interim Servicer to service the Mortgage Loans in strict compliance with the
terms of the Interim Servicing Agreement or this Agreement. The Seller
immediately shall notify the Purchaser if a claim is made by a 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 Purchaser promptly shall reimburse the Seller for
all amounts advanced by it pursuant to the preceding sentence, except when the
claim is in any way related to the Seller's indemnification pursuant to Section
9, or is in any way related to the failure of any Interim Servicer to service
and administer the Mortgage Loans in strict compliance with the terms of the
Interim Servicing Agreement or this Agreement.
Subsection 13.02. Merger or Consolidation of the Seller.
The Seller will keep in full effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement; provided, however, that the successor or
surviving Person shall have a net worth of at least $25,000,000.
Any Person into which the Seller may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Seller shall be a party, or any Person succeeding to the business of the
Seller, shall be the successor of the Seller hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 14. Financial Statements.
The Seller understands that in connection with the Purchaser's
marketing of the Mortgage Loans, the Purchaser shall make available to
prospective purchasers audited financial statements of the Seller for the most
recently completed fiscal year respecting which such statements are available,
as well as a Consolidated Statement of Condition of the Seller at the end of the
last fiscal year covered by such Consolidated Statement of Operations. The
Seller shall also make available any comparable interim statements to the extent
any such statements have been prepared by the Seller (and are available upon
request to members or stockholders of the Seller or the public at large). The
Seller, if it has not already done so, agrees to furnish promptly to the
Purchaser copies of the statements specified above.
The Seller also agrees to allow reasonable access to a knowledgeable
financial or accounting officer for the purpose of answering questions asked by
any prospective purchaser regarding recent developments affecting the Seller or
the financial statements of the Seller.
SECTION 15. Grant of Security Interest.
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 under
the terms of this Agreement, and (ii) obligation to pay the Purchase Price for
the Mortgage Loans. All rights and remedies of the Purchaser under this
Agreement are distinct from, and cumulative with, any other rights or remedies
under this Agreement or afforded by law or equity and all such rights and
remedies may be exercised concurrently, independently or successively.
SECTION 16. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, by registered or
certified mail, return receipt requested, or, if by other means, when received
by the other party at the address as follows:
(i) if to the Seller:
First Franklin Financial Corporation
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Mr. Xxxxx Xxxx
with a copy to:
National City Corporation
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xx. Xxxxxx Xxxxx
(ii) if to the Purchaser:
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
SECTION 17. Severability Clause.
Any part, provision representation or warranty of this Agreement
which is prohibited or unenforceable or is held to be void or unenforceable in
any jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
SECTION 18. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
SECTION 19. Governing Law.
This Agreement shall be deemed in effect when a fully executed
counterpart thereof is received by the Purchaser in the State of New York and
shall be deemed to have been made in the State of New York. The Agreement shall
be construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with the substantive laws of the State of New York (without regard to
conflicts of laws principles), except to the extent preempted by Federal law.
SECTION 20. Intention of the Parties.
It is the intention of the parties that the Purchaser is purchasing,
and the Seller is selling the Mortgage Loans and not a debt instrument of the
Seller or another security. Accordingly, the parties hereto each intend to treat
the transaction for Federal income tax purposes as a sale by the Seller, and a
purchase by the Purchaser, of the Mortgage Loans. Moreover, the arrangement
under which the Mortgage Loans are held shall be consistent with classification
of such arrangement as a grantor trust in the event it is not found to represent
direct ownership of the Mortgage Loans. The Purchaser shall have the right to
review the Mortgage Loans and the related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect the Federal income tax
consequences of owning the Mortgage Loans and the Seller shall cooperate with
all reasonable requests made by the Purchaser in the course of such review.
SECTION 21. Successors and Assigns; Assignment of Purchase
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective permitted
successors and assigns of the Seller and the successors and assigns of the
Purchaser. This Agreement shall not be assigned, pledged or hypothecated by the
Seller to a third party without the prior written consent of the Purchaser,
which consent may be withheld by the Purchaser in its sole discretion. This
Agreement may be assigned, pledged or hypothecated by the Purchaser in whole or
in part, and with respect to one or more of the Mortgage Loans, without the
consent of the Seller. If the Purchaser assigns any or all of its rights as
Purchaser hereunder, the assignee of the Purchaser will become the "Purchaser"
hereunder to the extent of such assignment. Any such assignment by the Purchaser
shall be accompanied by the delivery and execution of an Assignment and
Assumption Agreement (the "Assignment and Assumption Agreement") in the form
attached hereto as Exhibit G.
SECTION 22. Waivers.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
SECTION 23. Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
SECTION 24. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular, and
the use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration.
SECTION 25 Reproduction of Documents.
This Agreement and all documents relating thereto, including,
without limitation, (a) consents, waivers and modifications which may hereafter
be executed, (b) documents received by any party at the closing, and (c)
financial statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 26 Further Agreements.
The Seller and the Purchaser each agree to execute and deliver to
the other such reasonable and appropriate additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
SECTION 27. Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the Assignments
of Mortgage is subject to recordation in all appropriate public offices for real
property records in all the counties or their comparable jurisdictions in which
any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected at the Seller's expense in the event recordation is either necessary
under applicable law or requested by the Purchaser at its sole option.
SECTION 28 No Solicitation.
From and after the related Closing Date, the Seller agrees that it
will not take any action or permit or cause any action to be taken by any of its
agents or affiliates, or by any independent contractors on the Seller's behalf,
to personally, by telephone or mail, solicit the borrower or obligor under any
Mortgage Loan for any purpose whatsoever, including to refinance a Mortgage
Loan, in whole or in part, without the prior written consent of the Purchaser.
It is understood and agreed that all rights and benefits relating to the
solicitation of any Mortgagors and the attendant rights, title and interest in
and to the list of such Mortgagors and data relating to their Mortgages
(including insurance renewal dates) shall be transferred to the Purchaser
pursuant hereto on the related Closing Date and the Seller shall take no action
to undermine these rights and benefits. Notwithstanding the foregoing, it is
understood and agreed that promotions undertaken by the Seller or any affiliate
of the Seller which are directed to the general public at large, including,
without limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this Section 28.
SECTION 29 Waiver of Trial by Jury.
THE SELLER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 30 Submission To Jurisdiction; Waivers.
The Seller hereby irrevocably and unconditionally:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE PURCHASER SHALL HAVE BEEN
NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO XXX IN ANY OTHER JURISDICTION.
SECTION 31 Confidentiality
Seller and Purchaser each hereby agree to fully comply with all
applicable federal and state laws, rules and regulations governing the
confidentiality of any information acquired from or concerning the Mortgagors,
including but not limited to the Gramm Xxxxx Xxxxxx Act and Regulation P.
[Signatures Commence on Following Page]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
XXXXXXX SACHS MORTGAGE COMPANY, a New
York limited partnership
(Purchaser)
By:XXXXXXX XXXXX REAL ESTATE
FUNDING CORP., a New York
corporation, as General Partner
By:______________________________
Name:____________________________
Title:___________________________
FIRST FRANKLIN FINANCIAL CORPORATION
(Seller)
By:____________________________________
Name:__________________________________
Title:_________________________________
Exhibit A
EXHIBIT A
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser and any prospective Purchaser, and which shall be delivered to the
Custodian, or to such other Person as the Purchaser shall designate in writing,
pursuant to Section 6 of the Flow Mortgage Loan Purchase and Warranties
Agreement to which this Exhibit is attached (the "Agreement"):
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _________, without recourse" and signed in the
name of the last endorsee (the "Last Endorsee") by an authorized officer. If the
Mortgage Loan was acquired by the Seller in a merger, the endorsement must be by
"[Last Endorsee], successor by merger to [name of predecessor]". If the Mortgage
Loan was acquired or originated by the Last Endorsee while doing business under
another name, the endorsement must be by "[Last Endorsee], formerly known as
[previous name]";
(b) the original of any guarantee executed in connection with the
Mortgage Note;
(c) the original Mortgage with evidence of recording thereon. If in
connection with any Mortgage Loan, the Seller cannot deliver or cause to be
delivered the original Mortgage with evidence of recording thereon on or prior
to the related Closing Date because of a delay caused by the public recording
office where such Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office retains the
original recorded Mortgage, the Seller shall deliver or cause to be delivered to
the Custodian, a photocopy of such Mortgage, together with (i) in the case of a
delay caused by the public recording office, an Officer's Certificate of the
Seller (or certified by the title company, escrow agent, or closing attorney)
stating that such Mortgage has been dispatched to the appropriate public
recording office for recordation and that the original recorded Mortgage or a
copy of such Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage will be promptly delivered to
the Custodian upon receipt thereof by the Seller; or (ii) in the case of a
Mortgage where a public recording office retains the original recorded Mortgage
or in the case where a Mortgage is lost after recordation in a public recording
office, a copy of such Mortgage certified by such public recording office to be
a true and complete copy of the original recorded Mortgage;
(d) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(e) the original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording. The Assignment of Mortgage must be
duly recorded only if recordation is either necessary under applicable law or
commonly required by private institutional mortgage investors in the area where
the Mortgaged Property is located or on direction of the Purchaser as provided
in this Agreement. If the Assignment of Mortgage is to be recorded, the Mortgage
shall be assigned to the Purchaser. If the Assignment of Mortgage is not to be
recorded, the Assignment of Mortgage shall be delivered in blank. If the
Mortgage Loan was acquired by the Seller in a merger, the Assignment of Mortgage
must be made by "First Franklin Financial Corporation, successor by merger to
[name of predecessor]". If the Mortgage Loan was acquired or originated by the
Seller while doing business under another name, the Assignment of Mortgage must
be by "First Franklin Financial Corporation, formerly known as [previous name]";
(f) the originals of all intervening assignments of mortgage (if
any) evidencing a complete chain of assignment from the originator to the Last
Endorsee with evidence of recording thereon, or if any such intervening
assignment has not been returned from the applicable recording office or has
been lost or if such public recording office retains the original recorded
assignments of mortgage, the Seller shall deliver or cause to be delivered to
the Custodian, a photocopy of such intervening assignment, together with (i) in
the case of a delay caused by the public recording office, an Officers
Certificate of the Seller (or certified by the title company, escrow agent, or
closing attorney) stating that such intervening assignment of mortgage has been
dispatched to the appropriate public recording office for recordation and that
such original recorded intervening assignment of mortgage or a copy of such
intervening assignment of mortgage certified by the appropriate public recording
office to be a true and complete copy of the original recorded intervening
assignment of mortgage will be promptly delivered to the Custodian upon receipt
thereof by the Seller; or (ii) in the case of an intervening assignment of
mortgage where a public recording office retains the original recorded
intervening assignment of mortgage or in the case where an intervening
assignment of mortgage is lost after recordation in a public recording office, a
copy of such intervening assignment of mortgage certified by such public
recording office to be a true and complete copy of the original recorded
intervening assignment of mortgage;
(g) The original mortgagee policy of title insurance or, in the
event such original title policy is unavailable, a certified true copy of the
related policy binder or commitment for title certified to be true and complete
by the title insurance company; and
(h) security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage.
In the event an Officer's Certificate of the Seller is delivered to
the Purchaser because of a delay caused by the public recording office in
returning any recorded document, the Seller shall deliver to the Purchaser,
within 90 days of the related Closing Date, an Officer's Certificate which shall
(i) identify the recorded document, (ii) state that the recorded document has
not been delivered to the Custodian due solely to a delay caused by the public
recording office, (iii) state the amount of time generally required by the
applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to the Custodian. An extension of the date specified in (iv) above may
be requested from the Purchaser, which consent shall not be unreasonably
withheld.
Exhibit B
EXHIBIT B
CONTENTS OF EACH CREDIT FILE
(a) The original hazard insurance policy and, if required by law,
flood insurance policy.
(b) Residential loan application.
(c) Mortgage Loan closing statement.
(d) Verification of employment and income except for Mortgage Loans
originated under a Limited Documentation Program.
(e) Verification of acceptable evidence of source and amount of
downpayment.
(f) Credit report on the Mortgagor.
(g) Residential appraisal report, if available.
(h) Photograph of the Mortgaged Property.
(i) Survey of the Mortgaged Property, if any.
(j) Copy of each instrument necessary to complete identification of
any exception set forth in the exception schedule in the title policy, i.e., map
or plat, restrictions, easements, sewer agreements, home association
declarations, etc.
(k) All required disclosure statements.
(l) If available, termite report, structural engineer's report,
water potability and septic certification.
(m) Sales contract, if applicable.
(n) Tax receipts, insurance premium receipts, ledger sheets, payment
history from date of origination, insurance claim files, correspondence, current
and historical computerized data files, and all other processing, underwriting
and closing papers and records which are customarily contained in a mortgage
loan file and which are required to document the Mortgage Loan or to service the
Mortgage Loan.
(o) Amortization schedule, if applicable.
Exhibit C
EXHIBIT C
SELLER'S OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly elected
[Vice] President of ________________[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 Flow Mortgage Loan
Purchase and Warranties Agreement, dated as of February 27, 2004, by and
between __________________ (the "Purchaser") and the Company (the
"Purchase Agreement") and to endorse the Mortgage Notes and execute the
Assignments of Mortgages by original or facsimile signature, and such
resolutions are in effect on the date hereof and have been in effect
without amendment, waiver, rescission or modification since ____________.
5. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company
with the Purchase Agreement, the sale of the mortgage loans or the
consummation of the transactions contemplated by the agreements; or (ii)
any required consent, approval, authorization or order has been obtained
by the Company.
6. Neither the consummation of the transactions contemplated by, nor
the fulfillment of the terms of the Purchase Agreement conflicts or will
conflict with or results or will result in a breach of or constitutes or
will constitute a default under the charter or by-laws of the Company, the
terms of any indenture or other agreement or instrument to which the
Company is a party or by which it is bound or to which it is subject, or
any statute or order, rule, regulations, writ, injunction or decree of any
court, governmental authority or regulatory body to which the Company is
subject or by which it is bound.
7. To the best of my knowledge, there is no action, suit, proceeding
or investigation pending or threatened against the Company which, in my
judgment, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Company or in any material
impairment of the right or ability of the Company to carry on its business
substantially as now conducted or in any material liability on the part of
the Company or which would draw into question the validity of the Purchase
Agreement, or the mortgage loans or of any action taken or to be taken in
connection with the transactions contemplated hereby, or which would be
likely to impair materially the ability of the Company to perform under
the terms of the Purchase Agreement.
8. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Company, signed (a) the Purchase
Agreement and (b) any other document delivered or on the date hereof in
connection with any purchase described in the agreements set forth above
was, at the respective times of such signing and delivery, and is now, a
duly elected or appointed, qualified and acting officer or representative
of the Company, who holds the office set forth opposite his or her name on
Exhibit 5, and the signatures of such persons appearing on such documents
are their genuine signatures.
9. The Company is duly authorized to engage in the transactions
described and contemplated in the Purchase Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated:____________________ By:___________________________
Name:_________________________
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of
______________[COMPANY], hereby certify that ____________ is the duly elected,
qualified and acting [Vice] President of the Company and that the signature
appearing above is [her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:____________________ By:___________________________
Name:_________________________
Title: [Assistant] Secretary
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
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Exhibit D
EXHIBIT D
FORM OF OPINION OF COUNSEL TO THE SELLER
(date)
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
You have requested [our] [my] opinion, as [Assistant] General
Counsel to ___________________ (the "Company"), with respect to certain matters
in connection with the sale by the Company of the Mortgage Loans pursuant to
that certain Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Company and Xxxxxxx Sachs Mortgage Company (the "Purchaser"), dated as of
_________ __, 200_ (the "Purchase Agreement") which sale is in the form of whole
loans, delivered to the Purchaser or its designee as described in the Purchase
Agreement. Capitalized terms not otherwise defined herein have the meanings set
forth in the Purchase Agreement.
[We] [I] have examined the following documents:
1. the Purchase 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 Purchase Agreement. [We] [I] have assumed the authenticity of all documents
submitted to [us] [me] as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
documents.
Based upon the foregoing, it is [our] [my] opinion that:
1. The Company is a [type of entity] duly organized, validly
existing and in good standing under the laws of ___________
and is qualified to transact business in, and is in good
standing under, the laws of [the state of incorporation].
2. The Company has the power to engage in the transactions
contemplated by the Purchase Agreement and all requisite
power, authority and legal right to execute and deliver such
Agreements and to perform and observe the terms and conditions
of the Purchase Agreement.
3. The Purchase 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 Purchase 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 at the Company executing the endorsements to the
Mortgage Notes and the Assignments of Mortgages represents the
legal and valid signature of said officer of the Company.
6. Either (i) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by the Company of, or
compliance by the Company with, the Purchase Agreement and the
sale of the Mortgage Loans by the Company or the consummation
of the transactions contemplated by the Purchase 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 Purchase 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 Purchase Agreement to
which it is a party or the Mortgage Loans or of any action
taken or to be taken in connection with the transactions
contemplated thereby, or which would be likely to impair
materially the ability of the Company to perform under the
terms of the Purchase Agreement.
9. The sale of each Mortgage Note and Mortgage as and in the
manner contemplated by the Purchase Agreement is sufficient to
fully transfer to the Purchaser all right, title and interest
of the Company thereto as noteholder and mortgagee.
10. The Mortgages have been duly assigned and the Mortgage Notes
have been duly endorsed as provided in Exhibit A attached to
the Purchase Agreement. The Assignments of Mortgage are in
recordable form, except for the insertion of the name of the
assignee, and upon the name of the assignee being inserted,
are acceptable for recording under the laws of the state where
each related Mortgaged Property is located. The endorsement of
the Mortgage Notes, the delivery to the Purchaser, or its
designee, of the Assignments of Mortgage, and the delivery of
the original endorsed Mortgage Notes to the Purchaser, or its
designee, are sufficient to permit the Purchaser to avail
itself of all protection available under applicable law
against the claims of any present or future creditors of the
Company, and are sufficient to prevent any other sale,
transfer, assignment, pledge or hypothecation of the Mortgages
and the Mortgage Notes by the Company from being enforceable.
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon except that the purchaser or
purchasers to which you initially and directly resell the Mortgage Loans may
rely on this opinion as if it were addressed to them as of its date.
Very truly yours,
______________________________
[Name]
[Assistant] General
Counsel
Exhibit E
EXHIBIT E
FORM OF SECURITY RELEASE CERTIFICATION
___________________, 200__
[______________
______(the "Association")]
____________________________
____________________________
____________________________
Attention: ___________________________
Re: Notice of Sale and Release of Collateral
Dear Sirs:
This letter serves as notice that ________________________[COMPANY]
a [type of entity], organized pursuant to the laws of [the state of
incorporation] (the "Company") has committed to sell to
_____________________________ under a Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of ______ __, 200_, certain mortgage loans originated by the
Association. The Company warrants that the mortgage loans to be sold to
___________________________________ are in addition to and beyond any collateral
required to secure advances made by the Association to the Company.
The Company acknowledges that the mortgage loans to be sold to
___________________________________ shall not be used as additional or
substitute collateral for advances made by the Association.
___________________________________ understands that the balance of the
Company's mortgage loan portfolio may be used as collateral or additional
collateral for advances made by the Association, and confirms that it has no
interest therein.
Execution of this letter by the Association shall constitute a full
and complete release of any security interest, claim, or lien which the
Association may have against the mortgage loans to be sold to
___________________________________.
Very truly yours,
______________________________
By:___________________________
Name_:________________________
Title:________________________
Date:_________________________
Acknowledged and approved:
__________________________
By:_______________________________
Name:_____________________________
Title:____________________________
Date:_____________________________
Exhibit F
EXHIBIT F
FORM OF SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
The financial institution named below hereby relinquishes any and
all right, title and interest it may have in all Mortgage Loans to be purchased
by to ___________________________________ from the Company named below pursuant
to that certain Flow Mortgage Loan Purchase and Warranties Agreement, dated as
of ______ __, 200_, and certifies that all notes, mortgages, assignments and
other documents in its possession relating to such Mortgage Loans have been
delivered and released to the Company named below or its designees, as of the
date and time of the sale of such Mortgage Loans to
___________________________________.
Name and Address of Financial Institution
________________________________
(name)
________________________________
(Address)
By:_____________________________
II. Certification of Release
The Company named below hereby certifies to
___________________________________ that, as of the date and time of the sale of
the above-mentioned ___________________________________ the security interests
in the Mortgage Loans released by the above-named financial institution comprise
all security interests relating to or affecting any and all such Mortgage Loans.
The Company warrants that, as of such time, there are and will be no other
security interests affecting any or all of such Mortgage Loans.
_______________________________
By:____________________________
Title:_________________________
Date:__________________________
Exhibit G
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated ______________, between
__________________________________, a corporation ("Assignor") and
________________________________, a __________________ corporation ("Assignee"):
For good and valuable consideration the receipt and sufficiency of
which hereby are acknowledged, and of the mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. The Assignor hereby grants, transfers, conveys and assigns to
Assignee, as Purchaser, all of the right, title and interest of Assignor with
respect to the mortgage loans listed on Exhibit A attached hereto (the "Mortgage
Loans"), and with respect to such Mortgage Loans, in, to and under that certain
Flow Mortgage Loan Purchase and Warranties Agreement (Conventional Fixed and
Adjustable Rate, B/C Residential Mortgage Loans) (the "Purchase Agreement"),
between Assignor and First Franklin Financial Corporation (the "Seller").
2. The Assignor warrants and represents to, and covenants with, the
Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with
the full right to transfer the Mortgage Loans free from any and all claims and
encumbrances whatsoever;
b. The Assignor has not received notice of, and has no
knowledge of, any offsets, counterclaims or other defenses available to the
Seller with respect to the Purchase Agreement or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under,
or agreed to any amendment or other modification of, the Purchase Agreement. The
Assignor has no knowledge of, and has not received notice of, any waivers under
or amendments or other modifications of, or assignments of rights or obligations
under, the Purchase Agreement; and
d. Neither the Assignor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans
or any interest in the Mortgage Loans, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Mortgage Loans, or any interest in
the Mortgage Loans or otherwise approached or negotiated with respect to the
Mortgage Loans, or any interest in the Mortgage with any person in any manner,
or made any general solicitation by means of general advertising or in any other
manner, or taken any other action which would constitute a distribution of the
Mortgage Loans under the Securities Act of 1933, as amended (the "1933 Act") or
which would render the disposition of the Mortgage Loans a violation of Section
5 of the 1933 Act or require registration pursuant thereto.
3. The Assignee warrants and represents to, and covenants with, the
Assignor and the Seller pursuant to the Purchase Agreement that:
a. The Assignee is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, and has all requisite corporate power and authority to acquire,
own and purchase the Mortgage Loans;
b. The Assignee has full corporate power and authority to
execute, deliver and perform under this Assignment and Assumption Agreement, and
to consummate the transactions set forth herein. The execution, delivery and
performance of the Assignee of this Assignment and Assumption Agreement, and the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action of the Assignee. This Assignment
and Assumption Agreement has been duly executed and delivered by the Assignee
and constitutes the valid and legally binding obligation of the Assignee
enforceable against the Assignee in accordance with its respective terms;
c. To the best of Assignee's knowledge, no material consent,
approval, order or authorization of, or declaration, filing or registration
with, any governmental entity is required to be obtained or made by the Assignee
in connection with the execution, delivery or performance by the Assignee of
this Assignment and Assumption Agreement, or the consummation by it of the
transactions contemplated hereby;
d. The Assignee agrees to be bound, as Purchaser, by all of
the terms, covenants and conditions of the Purchase Agreement, the Mortgage
Loans, and from and after the date hereof, the Assignee assumes for the benefit
of each of the Seller, the Assignor and the Custodian all of the Assignor's
obligations as Purchaser thereunder; including, without limitation, the
limitation on assignment set forth in Section 21 of the Purchase Agreement;
e. The Assignee understands that the Mortgage Loans have not
been registered under the 1933 Act or the securities laws of any state;
f. The purchase price being paid by the Assignee for the
Mortgage Loans is in excess of $250,000 and will be paid by cash remittance of
the full purchase price within 60 days of the sale;
g. The Assignee is acquiring the Mortgage Loans for investment
for its own account only and not for any other person;
h. The Assignee considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
investment in the Mortgage Loans;
i. The Assignee has been furnished with all information
regarding the Mortgage Loans that it has requested from the Assignor or the
Seller;
j. Neither the Assignee nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans
or any interest in the Mortgage Loans, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Mortgage Loans or any interest in
the Mortgage Loans, or otherwise approached or negotiated with respect to the
Mortgage Loans or any interest in the Mortgage Loans with any person in any
manner which would constitute a distribution of the Mortgage Loans under the
1933 Act or which would render the disposition of the Mortgage Loans a violation
of Section 5 of the 1933 Act or require registration pursuant thereto, nor will
it act, nor has it authorized or will it authorize any person to act, in such
manner with respect to the Mortgage Loans; and
k. Either: (1) the Assignee is not an employee benefit plan
("Plan") within the meaning of section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or a plan (also "Plan") within the
meaning of section 4975(e)(1) of the Internal Revenue Code of 1986 ("Code"), and
the Assignee is not directly or indirectly purchasing the Mortgage Loans on
behalf of, investment manager of, as named fiduciary of, as Trustee of, or with
assets of, a Plan; or (2) the Assignee's purchase of the Mortgage Loans will not
result in a prohibited transaction under section 406 of ERISA or section 4975 of
the Code.
4. (a) The Assignee's address for purposes of all notices and
correspondence related to the Mortgage Loans, this Assignment and Assumption
Agreement and the Purchase Agreement is:
The Assignee's wire instructions for purposes of all remittances and
payments related to the Mortgage Loans are:
(b) The Assignor's address for purposes for all notices and
correspondence related to the Mortgage Loans and this Assignment and Assumption
Agreement is:
5. This Assignment and Assumption Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws, except to the extent preempted by federal law.
6. This Assignment and Assumption Agreement shall inure to the
benefit of the successors and assigns of the parties hereto. This Assignment and
Assumption Agreement may not be assigned by the Assignee without the express
written consent of the Assignor. Any entity into which the Assignor or Assignee
may be merged or consolidated shall, without the requirement for any further
writing, be deemed the Assignor or Assignee, respectively, hereunder.
7. No term or provision of this Assignment and Assumption Agreement
may be waived or modified unless such waiver or modification is in writing and
signed by the party against whom such waiver or modification is sought to be
enforced.
8. This Assignment and Assumption Agreement shall survive the
conveyance of the Mortgage Loans and the assignment of the Agreements by the
Assignor.
9. Notwithstanding the assignment of the Agreements by either the
Assignor or Assignee, this Assignment and Assumption Agreement shall not be
deemed assigned by the Assignor or the Assignee unless assigned by separate
written instrument.
10. For the purpose for facilitating the execution of this
Assignment and Assumption Agreement as herein provided and for other purposes,
this Assignment and Assumption Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and such counterparts shall constitute and be one and the same
instrument.
IN WITNESS WHEREOF, the parties have caused this Assignment and
Assumption Agreement to be executed by their duly authorized officers as of the
date first above written.
______________________________ ______________________________
Assignor Assignee
By:___________________________ By:___________________________
Its:__________________________ Its:__________________________
Taxpayer Taxpayer
Identification No.____________ Identification No.____________
Exhibit H
EXHIBIT H
RESERVED
Exhibit I
EXHIBIT I
RESERVED
Exhibit J
EXHIBIT J
SELLER'S UNDERWRITING GUIDELINES
Exhibit K
EXHIBIT K
RESERVED
Exhibit L
EXHIBIT L
DELINQUENT MORTGAGE LOANS
EXHIBIT M
ASSIGNMENT AND CONVEYANCE
On this __ day of _________, 200_, First Franklin Financial
Corporation, as the Seller, under that certain Flow Mortgage Loan Purchase and
Warranties Agreement, dated as of February 27, 2004 (the "Agreement") does
hereby sell, transfer, assign, set over and convey to Xxxxxxx Xxxxx Mortgage
Company, as Purchaser under the Agreement all rights, title and interest of the
Seller in and to (a) the Mortgage Loans listed on the related Mortgage Loan
Schedule attached as Exhibit 1 hereto, and (b) the Servicing Rights, together
with the related Mortgage Files and all rights and obligations arising under the
documents contained therein. Pursuant to Section 2 of the Agreement, the Seller
has delivered to the Custodian the documents for each Mortgage Loan to be
purchased as set forth in the Agreement. The ownership of each Mortgage Note,
Mortgage, and the contents of each Mortgage File is vested in the Purchaser and
the ownership of all records and documents with respect to the related Mortgage
Loan prepared by or which come into the possession of the Seller shall
immediately vest in the Purchaser and shall be delivered promptly by the Seller
to the Purchaser.
The Seller confirms to the Purchaser that, unless otherwise agreed
upon in writing by the Seller and the Purchaser, the representations and
warranties set forth in Section 7 of the Agreement with respect to the Mortgage
Loans listed on the Mortgage Loan Schedule attached hereto, and the
representations and warranties in Section 6 of the Agreement with respect to the
Seller are true and correct as of the date hereof.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Agreement.
FIRST FRANKLIN FINANCIAL CORPORATION
(Seller)
By:________________________
Name:______________________
Title:_______________________
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE POOL CHARACTERISTICS OF
THE MORTGAGE LOANS
Pool Characteristics of the Mortgage Loans as delivered on the
Closing Date:
AMENDMENT NO. 1
TO PURCHASE AGREEMENT
Amendment No. 1, dated as of November 29, 2004 (this "Amendment"),
by and between XXXXXXX XXXXX MORTGAGE COMPANY (the "Purchaser") and FIRST
FRANKLIN FINANCIAL CORPORATION (the "Seller").
RECITALS
The Seller and the Purchaser are parties to that certain Flow
Mortgage Loan Purchase And Warranties Agreement, dated as of February 27, 2004,
(the "Existing Purchase Agreement"; as amended by this Amendment, the "Purchase
Agreement"). Capitalized terms used but not otherwise defined herein shall have
the meanings given to them in the Existing Purchase Agreement.
The Seller and the Purchaser have agreed, subject to the terms and
conditions of this Amendment, that the Existing Purchase Agreement be amended to
reflect certain agreed upon revisions to the terms of the Existing Purchase
Agreement.
Accordingly, the Seller and the Purchaser hereby agree, in
consideration of the mutual promises and mutual obligations set forth herein,
that the Existing Purchase Agreement is hereby amended as follows:
SECTION 1. Section 1 to the existing Purchase Agreement is hereby
amended by deleting the existing definition of High Cost Loan and replacing it
with the following language:
High Cost Loan: A Mortgage Loan classified as (a) a "high
cost" loan under the Home Ownership and Equity Protection Act of
1994 or (b) a "high cost," "threshold," "covered" (excluding home
loans defined as "covered home loans" in the New Jersey Home
Ownership Security Act of 2002 that were originated between November
26, 2003 and July 7, 2004), "predatory" or similar loan under any
other applicable state, federal or local law (or a similarly
classified loan using different terminology under an applicable law
imposing heightened regulatory scrutiny or additional legal
liability for residential mortgage loans having high interest rates,
points and/or fees))
SECTION 2. Section 1 to the existing Purchase Agreement is hereby
amended by adding the following language as a new clause (43) to the definition
of Mortgage Loan Schedule:
Repurchase Price: With respect to any Mortgage Loan for which
a breach of a representation or warranty under this Agreement is
found, a price equal to the then outstanding principal balance of
the Mortgage Loan to be repurchased, plus accrued interest thereon
at the Mortgage Interest Rate from the date on which interest had
last been paid through the date of such repurchase, plus the amount
of any outstanding advances owed to any servicer, and plus all costs
and expenses incurred by the Purchaser or any servicer arising out
of or based upon such breach, including without limitation costs and
expenses incurred in the enforcement of the Seller's repurchase
obligation hereunder plus any costs and damages incurred by the
Purchaser with respect to any securitization of the Mortgage Loan in
connection with any violation by such Mortgage Loan of any
applicable predatory- or abusive-lending law.
SECTION 3. Section 8.02 of the existing Purchase Agreement is hereby
amended by:
(a) deleting the existing subsection (vv) in its entirety and
replacing it with the following:
(vv) Prepayment Penalty. Each Mortgage Loan is subject to a
Prepayment Penalty as provided in the related Mortgage Note unless
otherwise indicated on the related Mortgage Loan Schedule, and (i)
with respect to Mortgage Loans originated prior to October 1, 2004,
no Mortgage Loan has a Prepayment Penalty period in excess of five
years, and (ii) with respect to Mortgage Loans originated on or
after October 1, 2004, no Mortgage Loan has a Prepayment Penalty
period in excess of three years;
(b) deleting the existing subsection (ww) in its entirety and
replacing it with the following:
(ww) Predatory Lending Regulations. None of the Mortgage Loans
are (i) High Cost Loans, (ii) covered by the Home Ownership and
Equity Protection Act of 1994 or (iii) in violation of, or
classified as "high cost", "threshold," "predatory" or "covered"
loans under, any other applicable state, federal or local law. No
predatory or deceptive lending practices, as defined by applicable
laws, 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. None of the Mortgage Loans
that are secured by residential real property in North Carolina
contains prepayment penalties that (i) exceed, in the aggregate,
more that two percent of the amount prepaid or (ii) may be collected
more than 30 months after loan closing. No Mortgage Loan is a High
Cost Loan or Covered Loan, as applicable (as such terms are defined
in the then current Standard & Poor's LEVELS(R) Glossary);
(c) adding the following language at the end of section (hhh)(6):
and (iv) for loans originated on or after September 1, 2004,
the duration of the prepayment period shall not exceed three (3)
years from the date of the note, unless the loan was modified to
reduce the prepayment period to no more than three years from the
date of the note and the borrower was notified in writing of such
reduction in prepayment period, and (v) notwithstanding any state or
federal law to the contrary, the Servicer shall not impose such
prepayment premium in any instance when the mortgage debt is
accelerated as the result of the borrower's default in making the
loan payments
(d) deleting the existing subsection (hhh)(7) in its entirety and
replacing it with the following:
(7) No Mortgagor was required to purchase any single premium
credit insurance policy (e.g., life, disability, accident,
unemployment, or health insurance product) or debt cancellation
agreement as a condition of obtaining the extension of credit. No
Mortgagor obtained a prepaid single premium credit insurance policy
(e.g., life, disability, accident, unemployment, mortgage, or health
insurance) in connection with the origination of the Mortgage Loan;
No proceeds from any Mortgage Loan were used to purchase single
premium credit insurance policies or debt cancellation agreements as
part of the origination of, or as a condition to closing, such
Mortgage Loan
(e) adding the following language at the end of section (hhh):
(12) No Mortgage Loan is a "High-Cost Home Loan" as defined in
the New Jersey Home Ownership Act effective November 27, 2003
(N.J.S.A. 46:10B-22 et seq.);
(13) No Mortgage Loan is a "High-Cost Home Loan" as defined in
the New Mexico Home Loan Protection Act effective January 1, 2004
(N.M. Stat. Xxx. xx.xx. 58-21A-1 et seq.);
(14) No Mortgage Loan is a "High-Risk Home Loan" as defined in
the Illinois High-Risk Home Loan Act effective January 1, 2004 (815
Ill. Comp. Stat. 137/1 et seq.);
(15) No Mortgage Loan is a "High-Cost Home Mortgage Loan" as
defined in the Massachusetts Predatory Home Loan Practices Act,
effective November 6, 2004 (Mass. Xxx. Laws Ch. 183C);
(16) No Mortgage Loan is a balloon mortgage loan that has an
original stated maturity of less than seven (7) years;
(17) No Mortgage Loan is subject to mandatory arbitration
except when the terms of the arbitration also contain a waiver
provision that provides that in the event of a sale or transfer of
the Mortgage Loan or interest in the Mortgage Loan to Xxxxxx Xxx,
the terms of the arbitration are null and void. The Seller hereby
covenants that the Seller or servicer of the Mortgage Loan, as
applicable, will notify the Mortgagor in writing within 60 days of
the sale or transfer of the Mortgage Loan to Xxxxxx Mae that the
terms of the arbitration are null and void.
(f) adding the following language as a new section (iii)
(iii) Arbitration With respect to any Mortgage Loan originated
on or after August 1, 2004, neither the related Mortgage nor the
related Mortgage Note requires the Mortgagor to submit to
arbitration to resolve any dispute arising out of or relating in any
way to the Mortgage Loan transaction
SECTION 4. Conditions Precedent. This Amendment shall become
effective on November 29, 2004 (the "Amendment Effective Date") subject to the
satisfaction of the following conditions precedent:
4.1 Delivered Documents. On the Amendment Effective Date, the
Purchaser shall have received the following documents, each of which shall be
satisfactory to the Purchaser in form and substance:
(a) this Amendment, executed and delivered by duly authorized
officers of the Seller and the Purchaser;
(b) such other documents as the Purchaser or counsel to the
Purchaser may reasonably request.
SECTION 5. Representations and Warranties. The Seller hereby
represents and warrants to the Purchaser that it is in compliance with all the
terms and provisions set forth in the Existing Purchase Agreement on its part to
be observed or performed, and hereby confirms and reaffirms the representations
and warranties contained in Section 8.01 of the Existing Purchase Agreement.
SECTION 6. Limited Effect. Except as expressly amended and modified
by this Amendment, the Existing Purchase Agreement shall continue to be, and
shall remain, in full force and effect in accordance with its terms.
SECTION 7. GOVERNING LAW. THIS AMENDMENT 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.
SECTION 8. Counterparts. This Amendment may be executed in one or
more counterparts and by different parties hereto on separate counterparts, each
of which, when so executed, shall constitute one and the same agreement.
SECTION 9. Conflicts. The parties hereto agree that in the event
there is any conflict between the terms of this Amendment, and the terms of the
Existing Purchase Agreement, the provisions of this Amendment shall control.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
Purchaser: XXXXXXX XXXXX MORTGAGE COMPANY,
a New York limited partnership
By: Xxxxxxx Sachs Real Estate Funding Corp.,
its general partner
By: _______________________________
Name:
Title:
Seller: FIRST FRANKLIN FINANCIAL CORPORATION
By: _______________________________
Name:
Title:
AMENDMENT NO. 2
TO PURCHASE AGREEMENT
Amendment No. 2, dated as of January 20, 2006 (this "Amendment"), by
and between XXXXXXX XXXXX MORTGAGE COMPANY (the "Purchaser") and FIRST FRANKLIN
FINANCIAL CORPORATION (the "Seller").
RECITALS
The Seller and the Purchaser are parties to that certain Flow
Mortgage Loan Purchase And Warranties Agreement, dated as of February 27, 2004,
as amended by Amendment No. 1, dated as of November 29, 2004 (the "Existing
Purchase Agreement"; as amended by this Amendment, the "Purchase Agreement").
Capitalized terms used but not otherwise defined herein shall have the meanings
given to them in the Existing Purchase Agreement.
The Seller and the Purchaser have agreed, subject to the terms and
conditions of this Amendment, that the Existing Purchase Agreement be amended to
reflect certain agreed upon revisions to the terms of the Existing Purchase
Agreement.
Accordingly, the Seller and the Purchaser hereby agree, in
consideration of the mutual promises and mutual obligations set forth herein,
that the Existing Purchase Agreement is hereby amended as follows:
SECTION 1. Section 8.01 of the existing Purchase Agreement is hereby
amended by:
(a) deleting the existing subsection (p) in its entirety and
replacing it with the following:
(p) The Seller's decision to purchase any mortgage loan from the
First Franklin division of National City Bank of Indiana or any
unaffiliated mortgage lender (hereafter the Mortgage Loan's
originator") was an independent decision based upon Seller's
acquisition 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
purchased; and
SECTION 2. Section 8.02 of the existing Purchase Agreement is hereby
amended by:
(a) deleting the existing subsection (h) in its entirety and
replacing it with the following:
(h) Compliance with Applicable Laws. Any and all requirements
of any applicable federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity and
disclosure laws, all applicable predatory and abusive lending laws,
or unfair and deceptive practices laws applicable to the Mortgage
Loans, including, without limitation, any applicable provisions
relating to prepayment penalties, have been complied with, the
consummation of the transactions contemplated hereby will not
involve the violation of any such laws or regulations;
(b) deleting the existing subsection (l) in its entirety and
replacing it with the following:
(l) 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), subject to bankruptcy laws and similar laws of general
application affecting creditor's rights and subject to the
application of the rules of equity, including those respecting the
availability of specific performance. All parties to the Mortgage
Note, the Mortgage and any other such related agreement had legal
capacity to enter into the Mortgage Loan and to execute and deliver
the Mortgage Note, the Mortgage and any such agreement, and the
Mortgage Note, the Mortgage and any other such related agreement
have been duly and properly executed by other such related parties.
The documents, instruments and agreements submitted for loan
underwriting were not falsified and contain no untrue statement of
material fact or omit to state a material fact required to be stated
therein or necessary to make the information and statements therein
not misleading. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has
taken place on the part of the Seller, or, to the best of the
Seller's knowledge, any other Person, including without limitation,
the Mortgagor, any appraiser, any builder or developer, or any other
party involved in the origination or servicing of the Mortgage Loan.
The Seller has reviewed all of the documents constituting the
Servicing File and has made such inquiries as it deems necessary to
make and confirm the accuracy of the representations set forth
herein;
(c) deleting the existing subsection (ww) in its entirety and
replacing it with the following:
(ww) Prepayment Penalty. With respect to each Mortgage Loan
that has a prepayment penalty feature, each such prepayment penalty
is enforceable, and will be enforced by the Servicer for the benefit
of the Purchaser and each prepayment penalty is permitted pursuant
to applicable federal, state and local law. Each Mortgage Loan is
subject to a Prepayment Penalty as provided in the related Mortgage
Note unless otherwise indicated on the related Mortgage Loan
Schedule, and (i) with respect to Mortgage Loans originated prior to
October 1, 2004, no Mortgage Loan has a Prepayment Penalty period in
excess of five years, and (ii) with respect to Mortgage Loans
originated on or after October 1, 2004, no Mortgage Loan has a
Prepayment Penalty period in excess of three years;
SECTION 3 Conditions Precedent. This Amendment shall become
effective on January 20, 2006 (the "Amendment Effective Date"),
provided that the amendment in Section 1 shall apply to Mortgage
Loans sold after January 1, 2005 subject to the satisfaction of the
following conditions precedent:
1.2 Delivered Documents. On the Amendment Effective Date, the
Purchaser shall have received the following documents, each of which shall be
satisfactory to the Purchaser in form and substance:
(a) this Amendment, executed and delivered by duly authorized
officers of the Seller and the Purchaser;
(b) such other documents as the Purchaser or counsel to the
Purchaser may reasonably request.
SECTION 2. Representations and Warranties. The Seller hereby
represents and warrants to the Purchaser that it is in compliance with all the
terms and provisions set forth in the Existing Purchase Agreement on its part to
be observed or performed, and hereby confirms and reaffirms the representations
and warranties contained in Section 8.01 of the Existing Purchase Agreement,
subject to Section 1 hereof.
SECTION 3. Limited Effect. Except as expressly amended and modified
by this Amendment, the Existing Purchase Agreement shall continue to be, and
shall remain, in full force and effect in accordance with its terms.
SECTION 4. GOVERNING LAW. THIS AMENDMENT 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.
SECTION 5. Counterparts. This Amendment may be executed in one or
more counterparts and by different parties hereto on separate counterparts, each
of which, when so executed, shall constitute one and the same agreement.
SECTION 6. Conflicts. The parties hereto agree that in the event
there is any conflict between the terms of this Amendment, and the terms of the
Existing Purchase Agreement, the provisions of this Amendment shall control.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
Purchaser: XXXXXXX XXXXX MORTGAGE COMPANY,
a New York limited partnership
By: Xxxxxxx Sachs Real Estate Funding
Corp., its general partner
By:____________________________________
Name:
Title:
Seller: FIRST FRANKLIN FINANCIAL CORPORATION
By:____________________________________
Name:
Title:
REGULATION AB COMPLIANCE ADDENDUM
TO FLOW MORTGAGE LOAN PURCHASE AND WARRANTIES AGREEMENT AND INTERIM SERVICING
AGREEMENT
ARTICLE I
DEFINED TERMS
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Purchase Agreement or Servicing Agreement, as
applicable. The following terms shall have the meanings set forth below, unless
the context clearly indicates otherwise:
Commission: The United States Securities and Exchange Commission.
Depositor: The depositor, as such term is defined in Regulation AB, with
respect to any Securitization Transaction.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Purchase Agreement: The Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of February 27, 2004, as amended by Amendment No. 1, dated
as of November 29, 2004 by and among the Purchaser and the Seller, as the same
may be amended and/or restated by the parties.
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 originate 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 all or 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. For the
avoidance of doubt, a "Qualified Correspondent" includes a "table broker" or
mortgage lender that originates loans underwritten and funded by the Seller or
an Affiliate of the Seller that meets the criteria set forth above.
Reconstitution: Any Securitization Transaction or Whole Loan Transfer.
Reconstitution Agreement: Any servicing agreement relating to a
Reconstitution.
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.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a sale or
other transfer of some or all of the Mortgage Loans directly or indirectly to an
issuing entity in connection with an issuance of publicly offered or privately
placed, rated or unrated mortgage-backed securities or (2) an issuance of
publicly offered or privately placed, rated or unrated securities, the payments
on which are determined primarily by reference to one or more portfolios of
residential mortgage loans consisting, in whole or in part, of some or all of
the Mortgage Loans.
Seller Information: As defined in Section 2.07(a)(i).
Servicer: National City Home Loan Services, Inc. and as further defined in
Section 2.03(c).
Servicing Agreement: The Interim Servicing Agreement dated as of November
29, 2004, by and among the Purchaser and the Servicer, as the same may be
amended and/or restated by the parties.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Servicer Information: As defined in Section 2.07(b)(i).
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 material functions identified in Item 1122(d) of
Regulation AB with respect to Mortgage Loans under the direction or authority of
the Servicer or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of the
Servicer or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Servicer under
this Addendum or any Reconstitution Agreement that are identified in Item
1122(d) of Regulation AB; provided, however, that the term "Subservicer" shall
not include any master servicer, or any special servicer engaged at the request
of a Depositor, Purchaser or investor in a Securitization Transaction, nor any
"back-up servicer" or trustee performing servicing functions on behalf of a
Securitization Transaction.
Third-Party Originator: Each Person, if any, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Seller (and shall
not include a mortgage broker that does not fund loans).
Whole Loan Transfer: Any sale or transfer of some or all of the Mortgage
Loans, other than a Securitization Transaction.
ARTICLE II
COMPLIANCE WITH REGULATION AB
Section 2.01. Intent of the Parties.
The Purchaser, and, to the extent applicable, the Seller and the Servicer
acknowledge and agree that the purpose of Article II of this Addendum is to
facilitate compliance by the Purchaser and any Depositor with the provisions of
Regulation AB and related rules and regulations of the Commission and that the
provisions of this Regulation AB Addendum shall be applicable to all Mortgage
Loans included in any Securitization Transaction closing on or after January 1,
2006, regardless whether the Mortgage Loans were purchased by the Purchaser from
the Seller prior to the date hereof. 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 the
Purchase Agreement or servicing Agreement to compliance with Regulation AB
include provision of comparable disclosure in private offerings. Neither the
Purchaser nor any Depositor shall exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the provisions of 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) that are applicable to any
Securitization Transaction. The Seller and the Servicer acknowledge that, to the
extent applicable to each of them, interpretations of the requirements of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agree to
cooperate in good faith with requests made by the Purchaser or any Depositor in
good faith regarding, to the extent applicable, to each of them, the Seller's or
Servicer's delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with any Securitization
Transaction, the Seller and the Servicer, to the extent applicable, shall
cooperate as set forth herein 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 relating
to the Seller as originator and/or seller of the Mortgage Loans and the Servicer
as servicer of the Mortgage Loans 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 and 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.
Section 2.02. Additional Representations and Warranties of the Seller or
Servicer.
(a) 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 Section 2.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date and unless
otherwise disclosed in such information provided under Section 2.03, to the
extent applicable to the Servicer as the servicer of Mortgage Loans: (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 the
Servicing 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 scheduled closing date of 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 the Servicing Agreement or any Reconstitution
Agreement; (vi) there are no material legal or governmental proceedings pending
(or known to be contemplated by Government authorities) against the Servicer or
any Subservicer; and (vii) there are no affiliations, relationships or
transactions relating to the Servicer or any Subservicer with respect to any
Securitization Transaction and any party thereto identified by the related
Depositor of a type described in Item 1119 of Regulation AB.
The Seller and Servicer shall be deemed to represent to the Purchaser and
to any Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Section 2.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) there are no
material legal or governmental proceedings pending (or known by the Seller or
Servicer, as applicable, to be contemplated) against the Seller, the Servicer or
any Third-Party Originator and (ii) there are no affiliations, relationships or
transactions relating to the Seller, the Servicer 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 Section 2.03, the Seller or Servicer, as applicable, shall,
within five (5) Business Days, to the extent practicable, but in no event later
than ten (10) Business Days, following such request, confirm in writing the
accuracy of the representations and warranties set forth in paragraph (a) of
this Section or, if any such representation and warranty is not accurate as of
the date of such request, provide reasonably adequate disclosure of the
pertinent facts, in writing, to the requesting party.
Section 2.03. Information to Be Provided by the Seller or Servicer.
In connection with any Securitization Transaction the Seller or Servicer,
to the extent applicable to each, shall (i) within five (5) Business Days, to
the extent practicable but in no event later than ten (10) Business Days,
following request by the Purchaser or any Depositor, provide to the Purchaser
and such Depositor (or, as applicable, cause any Third-Party Originator and each
Subservicer to provide), in writing, or in a mutually agreed upon electronic
format, 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 Servicer, as applicable, provide to the
Purchaser and any Depositor (in writing, or in a mutually agreed upon electronic
format, and in form and substance reasonably satisfactory to the Purchaser and
such Depositor) the information specified in paragraph (d) of this Section.
(a) If so requested by the Purchaser or any Depositor, the Seller shall
provide such information, as mutually agreed upon by the Purchaser or any
Depositor and the Seller, regarding (i) the Seller, as originator of the
Mortgage Loans (including, to the extent applicable, as an acquirer of Mortgage
Loans from a Qualified Correspondent), and (ii) each Third Party Originator and
(iii) 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) such originator's form of organization;
(B) a description of such originator's origination and/or
acquisition 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 and/or acquiring
mortgage loans of a similar type as the Mortgage Loans; information
regarding the size and composition of the originator's origination and/or
acquisition portfolio; and information that may be material, in the good
faith judgment of the Purchaser or any Depositor, to an analysis of the
performance of the Mortgage Loans, including the originator's credit
granting, acquisition or underwriting criteria for originating or
purchasing 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 by governmental authorities) against
the Seller and, if applicable, each Third Party Originator; and
(D) a description of any affiliation or relationship between the
Seller, any Third-Party Originator, each Subservicer and any of the
following parties to a Securitization Transaction, as such parties are
identified and noticed to the Seller by the Purchaser or any Depositor in
writing in advance of such Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) If so requested by the Purchaser or any Depositor, the Seller or
Servicer shall provide (or, as applicable, cause each Third-Party Originator to
provide) Static Pool Information with respect to the mortgage loans originated
or acquired by the Seller on or after January 1, 2006 (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below) and
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) any Third-Party Originator. Such Static Pool Information shall be
prepared or caused to be prepared by 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 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, as
applicable, and need not be customized for the Purchaser or any Depositor. Such
Static Pool Information for each vintage origination year or prior securitized
pool, as applicable, shall be presented in increments no less frequently than
quarterly over the life of the mortgage loans included in the vintage
origination year or prior securitized pool. The most recent periodic increment
must be as of a date no later than 135 days prior to the date of the prospectus
or other offering document in which the Static Pool Information is to be
included or incorporated by reference. The Static Pool Information shall be
provided in an electronic format that provides a permanent record of the
information provided, such as a portable document format (pdf) file, or other
such electronic format as mutually agreed upon by the Purchaser or the Depositor
and the Servicer.
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 Servicer, as applicable, 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 Servicer.
If so requested by the Purchaser or any Depositor the Seller or the
Servicer, as applicable, shall provide (or, as applicable, cause any Third-Party
Originator to provide), at the expense of the Purchaser or Depositor, as
applicable (to the extent of any additional incremental expense associated with
delivery pursuant this Addendum), such agreed-upon procedures letters of
certified public accountants reasonably acceptable to the Purchaser or
Depositor, as applicable, pertaining to Static Pool Information delivered
pursuant to the preceding paragraphs relating to prior securitized pools for
securitizations closed on or after January 1, 2006 or, in the case of Static
Pool Information with respect to the Seller's or Third-Party Originator's
originations or purchases, to calendar months commencing January 1, 2006, as the
Purchaser or such Depositor shall reasonably request. Such statements and
letters shall be addressed to and be for the benefit of such parties as the
Purchaser or such Depositor shall designate, which may include, by way of
example, any Sponsor, any Depositor and any broker dealer acting as underwriter,
placement agent or initial purchaser with respect to a Securitization
Transaction, and shall, if requested, also be addressed to and for the benefit
of the Seller, the Servicer and such Third-Party Originator. Any such statement
or letter may take the form of a standard, generally applicable document
accompanied by a reliance letter authorizing reliance by the addressees
designated by the Purchaser or such Depositor.
(c) If so requested by the Purchaser or any Depositor, the Servicer shall
provide such information regarding the Servicer, as servicer of the Mortgage
Loans, and cause each Subservicer to so provide such information (each of the
Servicer and each Subservicer, for purposes of this paragraph, a "Servicer"), as
is requested for the purpose of compliance with Item 1108 of Regulation AB. Such
information shall include, at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's
experience in servicing assets of any type as well as a more detailed
discussion of the Servicer's experience in, and procedures for, the
servicing function it will perform under the Servicing Agreement and any
Reconstitution Agreements; information regarding the size, composition and
growth of the Servicer's servicing portfolio of residential mortgage loans
of a type similar to the Mortgage Loans and information on factors related
to the Servicer that may be material, in the good faith judgment of the
Purchaser or any Depositor, to any analysis of the servicing of the
Mortgage Loans or the related asset-backed securities, as applicable,
including, without limitation:
(1) whether any prior securitizations of mortgage loans of a
type similar to the Mortgage Loans involving the Servicer have
defaulted or experienced an early amortization or other performance
triggering event because of servicing during the three-year period
immediately preceding the scheduled closing date of the related
Securitization Transaction;
(2) the extent of outsourcing the 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
Servicer as a servicer during the three-year period immediately
preceding the scheduled closing date of the related Securitization
Transaction;
(4) whether the Servicer has been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing
default or to application of a servicing performance test or
trigger; and
(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 scheduled closing date of the related
Securitization Transaction to the Servicer's policies or procedures with
respect to the servicing function it will perform under the Servicing
Agreement and any Reconstitution Agreements for mortgage loans of a type
similar to the Mortgage Loans;
(D) information regarding the Servicer's financial condition, to the
extent that there is a material risk that the effect on one or more
aspects of servicing resulting from such financial condition would have a
material impact on pool performance or performance of asset backed
securities or the performance by the Servicer of its servicing obligations
under the Servicing Agreement or any Reconstitution Agreement;
(E) information regarding advances made by the Servicer on the
Mortgage Loans and the Servicer's overall servicing portfolio of
residential mortgage loans for the three-year period immediately preceding
the scheduled closing date of the related Securitization Transaction,
which may be limited to a statement by an authorized officer of the
Servicer to the effect that the Servicer has made all advances required to
be made on residential mortgage loans serviced by it during such period,
or, if such statement would not be accurate, information regarding the
percentage and type of advances not made as required, and the reasons for
such failure to advance;
(F) a description of the Servicer's processes and procedures
designed to address any special or unique factors involved in servicing
loans of a similar type as the Mortgage Loans;
(G) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of defaulted mortgage loans or
workouts;
(H) information as to how the Servicer defines or determines
delinquencies and charge-offs, including the effect of any grace period,
re-aging, restructuring, partial payments considered current or other
practices with respect to delinquency and loss experience;
(I) a description of any material legal or governmental proceedings
pending (or known to be contemplated) against the Servicer; and
(J) a description of any affiliation or relationship between the
Servicer 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 a 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.
(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 Servicer shall upon discovery or notice
(or shall cause each Subservicer and any Third-Party Originator to so notify
upon discovery or notice) (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, as applicable, (B) any
affiliations or relationships that develop following the closing date of a
Securitization Transaction between the Servicer, any Subservicer and any of the
parties specified in clause (D) of paragraph (a) of this Section (and any other
parties identified in writing by the requesting party) with respect to such
Securitization Transaction, and (ii) provide to the Purchaser and any Depositor
a description of such proceedings, affiliations or relationships, (C) any Event
of Default under the terms of the Servicing Agreement or any Reconstitution
Agreement, (D) any merger, consolidation or sale of substantially all of the
assets of the Servicer, and (E) the Servicer's entry into an agreement with a
Subservicer to perform or assist in the performance of any of the Servicer's
obligations under the Servicing Agreement or any Reconstitution Agreement.
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 Servicer shall (or shall cause each
Subservicer to) or the Seller shall or cause any 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 or 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
Servicer, the Seller, 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 the Servicing 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 appointed as a successor to the
Servicer or any Subservicer, the Servicer shall provide to the Purchaser and any
Depositor, at least seven Business 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 the related
Securitization Transaction.
(f) In addition to such information as the Servicer is obligated to
provide pursuant to other provisions of the Servicing 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 to facilitate preparation of distribution reports in accordance with
Item 1121 of Regulation AB. Additionally, the Servicer shall provide to the
Purchaser or its designee any loan-level or pool information with respect to the
Mortgage Loans necessary to confirm loss, prepayment and delinquency information
required in connection with the provision of Static Pool Information on the
basis of the Purchaser or such Depositor's reasonable, good faith interpretation
of the requirements of Item 1105 of Regulation AB. Such information shall be
provided concurrently with the monthly reports otherwise required to be
delivered by the servicer under the Servicing Agreement, commencing with the
first such report due not less than ten (10) Business Days following such
request.
Section 2.04. Servicer Compliance Statement.
On or before March 1 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 as servicer during the immediately preceding calendar year
(or applicable portion thereof) and of its performance under the Servicing
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 the Servicing Agreement and any applicable Reconstitution
Agreement in all material respects throughout such calendar year (or applicable
portion thereof) or, if there has been a failure to fulfill any such obligation
in any material respect, specifically identifying each such failure known to
such officer and the nature and the status thereof.
Section 2.05. Report on Assessment of Compliance and Attestation.
(a) On or before March 1 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 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 B hereto delivered to the Purchaser concurrently with the
execution of this Addendum;
(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 Section 2.06(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 A;
provided that such certification delivered by the Servicer may not be
filed as an exhibit to, or included in, any offering document or
registration statement.
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
Section 2.05(a)(iii) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit B hereto delivered to the
Purchaser concurrently with the execution of this Addendum or, in the case of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant to
Section 2.05(a)(iii) need not address any elements of the Servicing Criteria
other than those specified by the Servicer pursuant to Section 2.06.
Section 2.06. Use of Subservicers and Subcontractors.
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
the Servicing 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 the Servicing 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 Sections 2.02, 2.03(c) and (e), 2.04, 2.05 and 2.07 of this
Addendum to the same extent as if such Subservicer were the Servicer, and to
provide the information required with respect to such Subservicer under Section
2.03(d) of this Addendum. 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 Section
2.04, any assessment of compliance and attestation required to be delivered by
such Subservicer under Section 2.05 and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 2.05 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 Sections 2.05 and 2.07 of this
Addendum 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 Section 2.05,
in each case as and when required to be delivered.
Section 2.07. Indemnification; Remedies.
(a) The Seller shall indemnify the Purchaser, each affiliate of the
Purchaser participating in a Securitization Transaction, and each of the
following parties participating in a Securitization Transaction: each sponsor
and issuing entity; each Person responsible for the preparation, execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction; each broker dealer acting as underwriter, placement
agent or initial purchaser, each Person who controls any of such parties or the
Depositor (within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act); and the respective present and former directors, officers,
employees and agents of each of the foregoing and of the Depositor, and shall
hold each of them (each, an "Indemnified Party") 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 in written or electronic form provided under this
Article II by or on behalf of the Seller, as applicable, or provided by
Seller under this Article II by or on behalf of any Subservicer,
Subcontractor or Third-Party Originator (collectively, the "Seller
Information"), or (B) the omission or alleged omission to state in the
Seller Information a material fact required to be stated in the Seller
Information or necessary in order to make the statements therein, in the
light of the circumstances under which they were provided, not misleading;
provided, by way of clarification, that clause (B) of this paragraph shall
be construed solely by reference to the Seller Information and not to any
other information communicated in connection with a sale or purchase of
securities, without regard to whether the Seller Information or any
portion thereof is presented together with or separately from such other
information;
(ii) any failure by the Seller, or, if applicable and required by
the Seller under this Article II, the Servicer or any Third Party
Originator, Subservicer or Subcontractor to deliver any information,
report, certification, accountants' letter or other material when and as
required under this Article II; or
(iii) any breach by the Seller or, if the Seller is required under
this Article II to make a representation on behalf of the Servicer, by the
Servicer, of a representation or warranty set forth in Section 2.02(a) or
in a writing furnished pursuant to Section 2.02(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, if the Seller is required under this Article II
to make a representation on behalf of the Servicer, by the Servicer, of a
representation or warranty in a writing furnished pursuant to Section
2.02(b) to the extent made as of a date subsequent to such closing date.
In the case of any failure of performance described in clause (a)(ii) of
this Section, the Seller shall promptly reimburse the Purchaser, any Depositor,
as applicable, and each Person responsible for the preparation, execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such party
in order to obtain the information, report, certification, accountants' letter
or other material not delivered as required by the Seller or any Third-Party
Originator.
(b) The Servicer shall indemnify the Purchaser, each affiliate of the
Purchaser participating in a Securitization Transaction, and each of the
following parties participating in a Securitization Transaction: each sponsor
and issuing entity; each Person responsible for the preparation, execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction; each broker dealer acting as underwriter, placement
agent or initial purchaser, each Person who controls any of such parties or the
Depositor (within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act); and the respective present and former directors, officers,
employees and agents of each of the foregoing and of the Depositor, and shall
hold each of them (each, an "Indemnified Party") 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 in written or electronic form provided under this
Article II by or on behalf of the Servicer, as applicable, under this
Article II by or on behalf of the Servicer or provided by Servicer under
this Article II by or on behalf of the Seller, 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 provided, not misleading;
provided, by way of clarification, that clause (B) of this paragraph shall
be construed solely by reference to the Servicer Information and not to
any other information communicated in connection with a sale or purchase
of securities, without regard to whether the Servicer Information or any
portion thereof is presented together with or separately from such other
information;
(ii) any failure by the Servicer, or, if applicable and required by
the Servicer under this Article II, the Seller or any Subservicer,
Subcontractor or Third Party originator to deliver any information,
report, certification, accountants' letter or other material when and as
required under this Article II, including any failure by the Servicer to
identify pursuant to Section 2.06(b) any Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB;
or
(iii) any breach by the Servicer or, if the Servicer is required
under this Article II to make a representation on behalf of the Seller, by
the Seller, of a representation or warranty set forth in Section 2.02(a)
or in a writing furnished pursuant to Section 2.02(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 or, if the Servicer is required under this Article
II to make a representation on behalf of the Seller, by the Seller, of a
representation or warranty in a writing furnished pursuant to Section
2.02(b) to the extent made as of a date subsequent to such closing date.
In the case of any failure of performance described in clause (b)(ii) of
this Section, the Servicer shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction, for all costs reasonably incurred by each
such party in order to obtain the information, report, certification,
accountants' letter or other material not delivered as required by the Servicer,
any Subservicer or any Subcontractor.
(c) Notification and Cooperation. Promptly after receipt by an Indemnified
Party under this Section 2.07 of notice of the commencement of any action, such
Indemnified Party shall, if a claim in respect thereof is to be made against the
Seller or Servicer, as applicable (each, as applicable, an "Indemnifying Party"
(or if a claim for contribution is to be made against another party) under this
Section 2.07 hereof, notify the Indemnifying Party (or other contributing party)
in writing of the commencement thereof; but the omission so to notify the
Indemnifying Party (or other contributing party) shall not relieve it from any
liability it may have to any Indemnified Party (or to the party requesting
contribution) otherwise than under this Section 2.07 hereof. In case any such
action is brought against any Indemnified Party and it notifies the Indemnifying
Party of the commencement thereof, the Indemnifying Party shall be entitled to
participate therein and, to the extent that, by written notice delivered to each
Indemnified Party promptly after receiving the aforesaid notice from an
Indemnified Party, the Indemnifying Party elects to assume the defense thereof,
it may control the defense thereof (jointly with any other indemnifying party
similarly notified) with counsel satisfactory to each Indemnified Party;
provided, however, that if the defendants in any such action include both an
Indemnified Party and the Indemnifying Party and the Indemnified Party or
parties shall reasonably have concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the Indemnifying Party, the Indemnified
Party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such Indemnified Party or parties. Upon receipt of notice from the
Indemnifying Party to such Indemnified Party of its election so to assume the
defense of such action and approval by the Indemnified Party of such counsel,
the Indemnifying Party shall not be liable to such Indemnified Party under this
paragraph for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof, unless (i) such
Indemnified Party shall have employed separate counsel (plus any local counsel)
in connection with the assertion of legal defenses in accordance with the
proviso to the immediately preceding sentence, (ii) the Indemnifying Party shall
not have employed counsel satisfactory to such Indemnified Party to represent
such Indemnified Party within a reasonable time after notice of commencement of
the action or (iii) the Indemnifying Party shall have authorized the employment
of counsel for such Indemnified Party at the expense of the Indemnifying Party.
No party shall be liable for contribution with respect to any action or claim
settled without its consent, which shall not be unreasonably withheld. In no
event shall any Indemnifying Party be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) separate from its own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
(d) Exclusive Remedy. Except to the extent that a failure by the Servicer
to observe or perform in any material respect any of the agreements in this
Article II constitutes an Event of Default under the Servicing Agreement (as to
which the Servicing Agreement provides a remedy) and except for remedies under
the Purchase Agreement and remedies that cannot be waived as a matter of law and
injunctive relief, the rights under this Section 2.07 shall be the exclusive
remedy for breaches of Article II (including any covenant, obligation,
representation or warranty contained herein or therein).
(e) Limitations. Notwithstanding anything in this Addendum to the
contrary, in no event shall the Seller or Servicer be obligated under this
Section 2.07 to indemnify an Indemnified Party otherwise entitled to indemnity
hereunder in respect of any indemnifiable claims or losses that result from the
willful misconduct, bad faith or grossly negligent acts or omissions of the
Indemnified Party.
Section 2.08. Responsible Officers. Any reference in this Addendum to the
Seller's or Servicer's knowledge, discovery or awareness, or notice or
identification to the Seller or Servicer, as applicable, or a request to the
Seller or Servicer, to the extent applicable, shall be in each case be deemed to
refer solely to the knowledge or awareness of, or notice or identification to,
or request of, a Responsible Officer of the Seller or Servicer. "Responsible
Officer" means any vice president, any managing director, any director, any
associate, any assistant vice president, any assistant secretary, any assistant
treasurer or any other officer or employee of the Seller or Servicer, as
applicable, customarily performing functions similar to those performed by any
of the above designated officers and also to whom, with respect to a particular
matter, such matter is referred because of such officer's or employee's
knowledge of and familiarity with the particular subject and in each case who
shall have direct responsibility for the administration of the Purchase
Agreement or Servicing Agreement, as applicable.
XXXXXXX XXXXX MORTGAGE COMPANY
By: ________________________________
Name:
Title:
FIRST FRANKLIN FINANCIAL CORPORATION
By: ________________________________
Name:
Title:
NATIONAL CIY HOME LOAN SERVICES, INC.
By: ________________________________
Name:
Title:
EXHIBIT A
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the
"Agreement"), among [IDENTIFY PARTIES]
I, ________________________________, the _______________________ of [NAME
OF SERVICER], 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
Servicer provided in accordance with Item 1123 of Regulation AB (the
"Compliance Statement"), the report on assessment of the Servicer's
compliance with the applicable servicing criteria set forth in Item
1122(d) of Regulation AB and identified as the responsibility of the
Servicer on Exhibit [__] to the Agreement (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 Servicer during 200[ ] that were delivered by the
Servicer to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee] pursuant to the Agreement (collectively, the "Servicer Servicing
Information");
(2) Based on my knowledge, the Servicer 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 Servicer
Servicing Information;
(3) Based on my knowledge, all of the Servicer Servicing Information
required to be provided by the Servicer 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
Servicer 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 Servicer has fulfilled its obligations
under the Agreement in all material respects; and
(5) The Compliance Statement required to be delivered by the
Servicer pursuant to the Agreement, and the Servicing Assessment and
Attestation Report required to be provided by the Servicer and by any
Subservicer or Subcontractor "participating in the servicing function"
pursuant to the Agreement, have been provided to the [Depositor] [Master
Servicer]. Any material instances of noncompliance described in such
reports have been disclosed to the [Depositor] [Master Servicer]. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
[NAME OF SERVICER]
Date: _______________________________
By: _________________________________
Name:
Title:
EXHIBIT B
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Servicer] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
----------------------------------------------------------------------------------------------------------------
Applicable Servicing
Servicing Criteria Criteria
----------------------------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------------------------
General Servicing Considerations
----------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements.
----------------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to
third parties, policies and procedures are instituted to
monitor the third party's performance and compliance with
such servicing activities.
----------------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain
a back-up servicer for the 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.
----------------------------------------------------------------------------------------------------------------
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
1122(d)(2)(iv) 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 (A) are mathematically accurate; (B)
were prepared within 30 calendar days after the bank
statement cutoff date, or such other number of days
specified in the transaction agreements; (C) were reviewed
and approved by someone other than the person who prepared
the reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are resolved
within 90 calendar days of their original identification,
or such other number of days specified in the transaction
agreements.
----------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
----------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared
in accordance with timeframes and other terms set forth in
the transaction agreements; (B) provide information
calculated in accordance with the terms specified in the
transaction agreements; (C) are filed with the Commission
as required by its rules and regulations; and (D) agree
with investors' or the trustee's records as to the total
unpaid principal balance and number of mortgage loans
serviced by the Servicer.
----------------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other
terms set forth in the transaction agreements.
----------------------------------------------------------------------------------------------------------------
Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such
1122(d)(3)(iii) other number of days specified in the transaction agreements.
----------------------------------------------------------------------------------------------------------------
Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or
1122(d)(3)(iv) 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.
----------------------------------------------------------------------------------------------------------------
Mortgage loan and related documents are safeguarded as required by
1122(d)(4)(ii) the transaction agreements
----------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
conditions or requirements in the transaction agreements.
----------------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are
posted to the Servicer's obligor records maintained no more
than two business days after receipt, or such other number
of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g.,
escrow) in accordance with the related mortgage loan
documents.
----------------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
unpaid principal balance.
----------------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's
mortgage loans (e.g., loan modifications or re-agings) are
made, reviewed and approved by authorized personnel in
accordance with the transaction agreements and related pool
asset documents.
----------------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the
transaction agreements.
----------------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such records
are maintained on at least a monthly basis, or such other
period specified in the transaction agreements, and
describe the entity's activities in monitoring delinquent
mortgage loans including, for example, phone calls, letters
and payment rescheduling plans in cases where delinquency
is deemed temporary (e.g., illness or unemployment).
----------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based on
the related mortgage loan documents.
----------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents, on
at least an annual basis, or such other period specified in
the transaction agreements; (B) interest on such funds is
paid, or credited, to obligors in accordance with
applicable mortgage loan documents and state laws; and (C)
such funds are returned to the obligor within 30 calendar
days of full repayment of the related mortgage loans, or
such other number of days specified in the transaction
agreements.
----------------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided
that such support has been received by the servicer at
least 30 calendar days prior to these dates, or such other
number of days specified in the transaction agreements.
----------------------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment
to be made on behalf of an obligor are paid from the
servicer's funds and not charged to the obligor, unless the
late payment was due to the obligor's error or omission.
----------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of days
specified in the transaction agreements.
----------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
----------------------------------------------------------------------------------------------------------------
Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB,
1122(d)(4)(xv) is maintained as set forth in the transaction agreements.
----------------------------------------------------------------------------------------------------------------
[NAME OF SERVICER]
Date: _______________________________
By: _________________________________
Name:
Title:
EXHIBIT T
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Trustee], [the Servicer],
[each Subservicer] and [each Subcontractor] shall address, at a minimum, the
criteria identified as below as "Applicable Servicing Criteria." The
responsibilities set forth herein may be amended without amending the Pooling
and Servicing Agreement if upon mutual agreement between the applicable party
requesting such amendment and the Depositor.
----------------------------------------------------------------------------------------------------------------------
APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
----------------------------------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
----------------------------------------------------------------------------------------------------------------------
Policies and procedures are instituted to monitor any performance or other Trustee/Servicer
1122(d)(1)(i) triggers and events of default in accordance with the transaction 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. Trustee/Servicer
----------------------------------------------------------------------------------------------------------------------
Any requirements in the transaction agreements to maintain a back-up servicer N/A
1122(d)(1)(iii) for the mortgage loans are maintained.
----------------------------------------------------------------------------------------------------------------------
A fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function 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. Servicer
----------------------------------------------------------------------------------------------------------------------
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 days specified in the transaction
1122(d)(2)(i) agreements. Servicer
----------------------------------------------------------------------------------------------------------------------
Disbursements made via wire transfer on behalf of an obligor or to an investor Servicer/Trustee
1122(d)(2)(ii) are made only by authorized personnel.
----------------------------------------------------------------------------------------------------------------------
Advances of funds or guarantees regarding collections, cash flows or
distributions, and any interest or other fees charged for such advances, are
1122(d)(2)(iii) made, reviewed and approved as specified in the transaction agreements. Servicer
----------------------------------------------------------------------------------------------------------------------
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 Servicer/Trustee
1122(d)(2)(iv) transaction agreements.
----------------------------------------------------------------------------------------------------------------------
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 Servicer/Trustee
1122(d)(2)(v) 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. Servicer/Trustee
----------------------------------------------------------------------------------------------------------------------
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 Servicer/Trustee
resolved within 90 calendar days of their original identification, or such other
1122(d)(2)(vii) 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/Servicer
trustee's records as to the total unpaid principal balance and number of
1122(d)(3)(i) mortgage loans serviced by the Servicer.
----------------------------------------------------------------------------------------------------------------------
Amounts due to investors are allocated and remitted in accordance with
timeframes, distribution priority and other terms set forth in the transaction
1122(d)(3)(ii) agreements.
----------------------------------------------------------------------------------------------------------------------
Trustee/Servicer
----------------------------------------------------------------------------------------------------------------------
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 Trustee/Servicer
1122(d)(3)(iii) transaction agreements.
----------------------------------------------------------------------------------------------------------------------
Amounts remitted to investors per the investor reports agree with cancelled Trustee/Servicer
1122(d)(3)(iv) checks, or other form of payment, or custodial bank statements.
----------------------------------------------------------------------------------------------------------------------
Pool Asset Administration
----------------------------------------------------------------------------------------------------------------------
Collateral or security on mortgage loans is maintained as required by the Trustee/Servicer
1122(d)(4)(i) transaction agreements or related mortgage loan documents.
----------------------------------------------------------------------------------------------------------------------
Mortgage loan and related documents are safeguarded as required by the Trustee/Servicer
1122(d)(4)(ii) transaction agreements
----------------------------------------------------------------------------------------------------------------------
Any additions, removals or substitutions to the asset pool are made, reviewed
and approved in accordance with any conditions or requirements in the
1122(d)(4)(iii) transaction agreements. Trustee/Servicer
----------------------------------------------------------------------------------------------------------------------
Payments on mortgage loans, including any payoffs, made in accordance with the
related mortgage loan documents are posted to the Servicer's obligor records
maintained no more than two business days after receipt, or such other number of
days specified in the transaction agreements, and allocated to principal,
interest or other items (e.g., escrow) in accordance with the related mortgage Servicer
1122(d)(4)(iv) loan documents.
----------------------------------------------------------------------------------------------------------------------
The Servicer's records regarding the mortgage loans agree with the Servicer's Servicer
1122(d)(4)(v) records with 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 transaction agreements and related
1122(d)(4)(vi) pool asset documents. Servicer
----------------------------------------------------------------------------------------------------------------------
Loss mitigation or recovery actions (e.g., forbearance plans, modifications and
deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with the timeframes or other
1122(d)(4)(vii) requirements established by the transaction agreements. Servicer
----------------------------------------------------------------------------------------------------------------------
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 Servicer
1122(d)(4)(viii) temporary (e.g., illness or unemployment).
----------------------------------------------------------------------------------------------------------------------
Adjustments to interest rates or rates of return for mortgage loans with Servicer
1122(d)(4)(ix) variable rates are computed based 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 days specified Servicer
1122(d)(4)(x) in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
Payments made on behalf of an obligor (such as tax or insurance payments) are
made on or before the related penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior to these dates, or Servicer
1122(d)(4)(xi) such other number of days specified in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
Any late payment penalties in connection with any payment to be made on behalf
of an obligor are paid from the servicer's funds and not charged to the obligor,
1122(d)(4)(xii) unless the late payment was due to the obligor's error or omission. Servicer
----------------------------------------------------------------------------------------------------------------------
Disbursements made on behalf of an obligor are posted within two business days
to the obligor's records maintained by the servicer, or such other number of Servicer
1122(d)(4)(xiii) days specified in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
Delinquencies, charge-offs and uncollectible accounts are recognized and Servicer
1122(d)(4)(xiv) recorded in accordance with the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
Any external enhancement or other support, identified in Item 1114(a)(1) through
(3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction Trustee
1122(d)(4)(xv) agreements.
----------------------------------------------------------------------------------------------------------------------
EXHIBIT U
ADDITIONAL FORM 10-D DISCLOSURE
--------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
--------------------------------------------------------------------------------------------
Item 1: Distribution and Pool Performance
Information
Any information required by Item 1121 of
Regulation AB which is NOT included on Servicer/Trustee
the Monthly Statement
--------------------------------------------------------------------------------------------
Item 2: Legal Proceedings (i) All parties to the Agreement (as to
themselves), (ii) the Trustee (to its actual
per Item 1117 of Regulation AB knowledge) and Servicer as to the issuing
entity, (iii) the Depositor as to the
sponsor, and the Responsible Party or any
Regulation AB Item 1100(d)(1) party
--------------------------------------------------------------------------------------------
Item 3: Sale of Securities and Use of Depositor
Proceeds
--------------------------------------------------------------------------------------------
Item 4: Defaults Upon Senior Securities Trustee
--------------------------------------------------------------------------------------------
Item 5: Submission of Matters to a Vote of Depositor or the party to the Agreement
Security Holders submitting such matter to a vote of
Certificateholders
--------------------------------------------------------------------------------------------
Item 6: Significant Obligors of Pool Assets N/A
--------------------------------------------------------------------------------------------
Item 7: Significant Enhancement Provider Depositor
Information
--------------------------------------------------------------------------------------------
Item 8: Other Information Any party to the Agreement responsible for
disclosure items on Form 8-K
--------------------------------------------------------------------------------------------
Item 9: Exhibits Trustee (or other responsible party)
--------------------------------------------------------------------------------------------
EXHIBIT V
ADDITIONAL FORM 10-K DISCLOSURE
-------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
-------------------------------------------------------------------------------------
Item 9B: Other Information Any party to the Agreement responsible for
disclosure items on Form 8-K
-------------------------------------------------------------------------------------
Item 15: Exhibits, Financial Statement Trustee
Schedules Depositor
-------------------------------------------------------------------------------------
Additional Item: (i) All parties to the Agreement (as to
themselves), (ii) the Trustee (to its actual
Disclosure per Item 1117 of knowledge) and Servicer as to the Trust,
Regulation AB (iii) the Depositor as to the sponsor and the
Responsible Party or any 1100(d)(1) party
-------------------------------------------------------------------------------------
Additional Item: (i) All parties to the Agreement as to
Disclosure per Item 1119 of themselves, (ii) the Depositor as to the
Regulation AB sponsor, or any derivative provider
-------------------------------------------------------------------------------------
Additional Item: N/A
Disclosure per Item 1112(b) of
Regulation AB
-------------------------------------------------------------------------------------
Additional Item: Depositor
Disclosure per Items 1114(b) and
1115(b) of Regulation AB
-------------------------------------------------------------------------------------
EXHIBIT W
FORM 8-K DISCLOSURE INFORMATION
Item on Form 8-K Party Responsible
------------------------------------------------------------------------------------------------
Item 1.01- Entry into a Material Definitive The party to this Agreement entering
Agreement into such material definitive agreement
------------------------------------------------------------------------------------------------
Item 1.02- Termination of a Material Definitive The party to this Agreement requesting
Agreement termination of a material definitive
agreement
------------------------------------------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership (i) All parties to the Agreement (as to
themselves), (ii) the Trustee (to its
actual knowledge) and Servicer as to the
Trust, (iii) the Depositor as to the
sponsor and the Responsible Party or any
1100(d)(1) party
------------------------------------------------------------------------------------------------
Item 2.04- Triggering Events that Accelerate or Trustee/Depositor
Increase a Direct Financial Obligation or an
Obligation under an Off-Balance Sheet
Arrangement
------------------------------------------------------------------------------------------------
Item 3.03- Material Modification to Rights of The party requesting such modification
Security Holders
------------------------------------------------------------------------------------------------
Item 5.03- Amendments of Articles of Depositor
Incorporation or Bylaws; Change of Fiscal Year
------------------------------------------------------------------------------------------------
Item 6.01- ABS Informational and Computational Depositor
Material
------------------------------------------------------------------------------------------------
Item 6.02- Change of Servicer or Trustee Servicer, Trustee
------------------------------------------------------------------------------------------------
Item 6.03- Change in Credit Enhancement or Depositor/Trustee
External Support
------------------------------------------------------------------------------------------------
Item 6.04- Failure to Make a Required Trustee
Distribution
------------------------------------------------------------------------------------------------
Item 6.05- Securities Act Updating Disclosure Depositor
------------------------------------------------------------------------------------------------
Item 7.01- Regulation FD Disclosure Depositor
------------------------------------------------------------------------------------------------
Item 8.01 Depositor
------------------------------------------------------------------------------------------------
EXHIBIT X
INTEREST RATE SWAP AGREEMENT
EXHIBIT 10.3
(Multicurrency -- Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of September 28, 2006
XXXXXXX XXXXX CAPITAL MARKETS L.P. and FFMLT TRUST 2006-FF13
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than by
payment), such delivery will be made for receipt on the due date in the
manner customary for the relevant obligation unless otherwise specified in
the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing,
(2) the condition precedent that no Early Termination Date in respect of
the relevant Transaction has occurred or been effectively designated and
(3) each other applicable condition precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified by
the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that
such deduction or withholding is required or receiving notice that
such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y, evidencing
such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to
the payment to which Y is otherwise entitled under this Agreement,
such additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes,
whether assessed against X or Y) will equal the full amount Y would
have received had no such deduction or withholding been required.
However, X will not be required to pay any additional amount to Y to
the extent that it would not be required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure would
not have occurred but for (I) any action taken by a taxing
authority, or brought in a court of competent jurisdiction, on
or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with
respect to a party to this Agreement) or (II) a Change in Tax
Law.
(ii) Liability. If: --
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be required
to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
o-f the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:--
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform
its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all necessary
action to authorise such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision of
its constitutional documents, any order or judgment of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in lull
force and effect and all conditions of any such consents have been
complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal, valid
and binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding
in equity or at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:--
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified
in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to make a payment under
this Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of such
demand), with any such form or document to be accurate and completed in a
manner reasonably satisfactory to such other party and to be executed and
to be delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or an Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated, organised, managed and
controlled, or considered to have its seat, or in which a branch or office
through which it is acting for the purpose of this Agreement is located ("Stamp
Tax Jurisdiction") and will indemnify the other party against any Stamp Tax
levied or imposed upon the other party or in respect of the other party's
execution or performance of this Agreement by any such Stamp Tax Jurisdiction
which is not also a Stamp Tax Jurisdiction with respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party:--
(i) Failure to Pay or Deliver. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any applicable
grace period has elapsed;
(2) the expiration or termination of such Credit Support Document
or the failing or ceasing of such Credit Support Document to be in
full force and effect for the purpose of this Agreement (in either
case other than in accordance with its terms) prior to the
satisfaction of all obligations of such party under each Transaction
to which such Credit Support Document relates without the written
consent of the other party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or challenges
the validity of such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party
(1) defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment, delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however described) in
respect of such party, any Credit Support Provider of such party or any
applicable Specified Entity of such party under one or more agreements or
instruments relating to Specified Indebtedness of any of them
(individually or collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which has
resulted in such Specified Indebtedness becoming, or becoming capable at
such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a
default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on
the due date thereof in an aggregate amount of not less than the
applicable Threshold Amount under such agreements or instruments (after
giving effect to any applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant
to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially all
its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 30 days thereafter; (8) causes or
is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any
of the events specified in clauses (1) to (7) (inclusive); or (9)
takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer:--
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an Illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event Upon Merger if the event is
specified pursuant to (iv) below or an Additional Termination Event if the event
is specified pursuant to (v) below:--
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a
result of a breach by the party of Section 4(b)) for such party (which
will be the Affected Party): --
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect
of such Transaction or to comply with any other material provision
of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party
to perform, any contingent or other obligation which the party (or
such Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is
required to be paid in respect of such Tax under Section 2(d)(i)(4) (other
than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which
the other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event"
is specified in the Schedule or any Confirmation as applying, the
occurrence of such event (and, in such event, the Affected Party or
Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an Event
of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days
after it gives notice under Section 6(b)(i) all its rights and obligations
under this Agreement in respect of the Affected Transactions to another of
its Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject
to and conditional upon the prior written consent of the other party,
which consent will not be withheld if such other party's policies in
effect at such time would permit it to enter into transactions with the
transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) Right to Terminate. If: --
(1) a transfer under Section 6(b)(ii) or an agreement under
Section 6(b)(iii), as the case may be, has not been effected with
respect to all Affected Transactions within 30 days after an
Affected Party gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a
Credit Event Upon Merger or an Additional Termination Event if there is
only one Affected Party may, by not more than 20 days notice to the other
party and provided that the relevant Termination Event is then continuing,
designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount,
if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party obtaining such
quotation will be conclusive evidence of the existence and accuracy of
such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early Termination
Date to (but excluding) the date such amount is paid, at the Applicable
Rate. Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an
Event of Default: --
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-Defaulting Party's Loss in respect of this
Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party less (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party. If that amount is
a positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the Non-defaulting
Party will pay the absolute value of that amount to the Defaulting
Party.
(4) Second Method and Loss. If the Second Method and Loss apply,
an amount will be payable equal to the Non-defaulting Party's Loss
in respect of this Agreement. If that amount is a positive number,
the Defaulting Party will pay it to the Non-defaulting Party; if it
is a negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event: --
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the Defaulting Party and
to the Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all the
Transactions are being terminated, Loss shall be calculated in
respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties: --
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower Settlement
Amount ("Y") and (b) the Termination Currency Equivalent of
the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with the
lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if it
is a negative number, X will pay the absolute value of that amount to
Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of
loss and not a penalty. Such amount is payable for the loss of bargain and
the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable law,
any obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire Agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document to
which the Defaulting Party is a party or by reason of the early termination of
any Transaction, including, but not limited to, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it
is delivered;
(ii) if sent by telex, on the date the recipient's answerback is
received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Xxx 0000 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any reason any party's
Process Agent is unable to act as such, such party will promptly notify the
other party and within 30 days appoint a substitute process agent acceptable to
the other party. The parties irrevocably consent to service of process given in
the manner provided for notices in Section 12. Nothing in this Agreement will
affect the right of either party to serve process in any other manner permitted
by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:--
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organised, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the ease of
tax matters, by the practice of any relevant governmental revenue authority) and
"lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for performance
with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except so as to avoid duplication, if Section 6(e)(i)(l) or (3) or
6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with a respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date. For this
purpose, Unpaid Amounts in respect of the Terminated Transaction or group of
Terminated Transactions are to be excluded but, without limitation, any payment
or delivery that would, but for the relevant Early Termination Date, have been
required (assuming satisfaction of each applicable condition precedent) after
that Early Termination Date is to be included. The Replacement Transaction would
be subject to such determination as such party and the Reference Market-maker
may, in good faith, agree. The party making the determination (or its agent)
will request each Reference Market-maker to provide its quotation to the extent
reasonably practicable as of the same day and time (without regard to different
time zones) on or as soon as reasonably practicable after the relevant Early
Termination Date. The day and time as of which those quotations are to be
obtained will be selected in good faith by the party obliged to make a
determination under Section 6(e), and, if each party is so obliged, after
consultation with the other. If more than three quotations are provided, the
Market Quotation will be the arithmetic mean of the quotations, without regard
to the quotations having the highest and lowest values. If exactly three such
quotations are provided, the Market Quotation will be the quotation remaining
after disregarding the highest and lowest quotations. For this purpose, if more
than one quotation has the same highest value or lowest value, then one of such
quotations shall be disregarded. If fewer than three quotations are provided, it
will be deemed that the Market Quotation in respect of such Terminated
Transaction or group of Terminated Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) its relation to any payment, from or through which such
payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of: --
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to any
Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meanings specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either ease) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market value of that which was (or would have been) required to be
delivered as of the originally scheduled date for delivery, in each case
together with (to the extent permitted under applicable law) interest, in the
currency of such amounts from (and including) the date such amounts or
obligations were or would have been required to have been paid or performed to
(but excluding) such Early Termination Date, at the Applicable Rate. Such
amounts of interest will be calculated on the basis of daily compounding and the
actual number of days elapsed. The fair market value of any obligation referred
to in clause (b) above shall be reasonably determined by the party obliged to
make the determination under Section 6(e) or, if each party is so obliged, it
shall be the average of the Termination Currency Equivalents of the fair market
values reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
XXXXXXX XXXXX CAPITAL MARKETS, L.P. FFMLT TRUST 2006-FF13
By: Deutsche Bank National Trust
Company, not in its individual
capacity but solely as Trustee
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxxxx
------------------------ ------------------------
Name: Xxxxx Xxxxx Name: Xxxxxxx Xxxxxxxxx
Title: Vice President Title: Authorized Signer
Date: September 28, 2006 Date: September 28, 2006
EXHIBIT 10.4
SCHEDULE
to the
MASTER AGREEMENT
dated as of September 28, 2006
between
XXXXXXX SACHS CAPITAL MARKETS, L.P.
a limited partnership organized
under the laws of Delaware
("Party A"),
and
FFMLT Trust 2006-FF13
a trust organized
under the laws of the State of New York
("Party B").
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to Party A for the purpose of:
Section 5(a)(v), Not Applicable.
Section 5(a)(vi), Not Applicable.
Section 5(a)(vii), Not Applicable.
Section 5(b)(iv), Not Applicable.
and in relation to Party B for the purpose of:
Section 5(a)(v), Not Applicable.
Section 5(a)(vi), Not Applicable.
Section 5(a)(vii), Not Applicable.
Section 5(b)(iv), Not Applicable.
(b) "Specified Transaction" shall have the meaning specified in Section 14
of this Agreement.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii) will not
apply to Party A or Party B.
(d) The "Credit Support Default" provisions of Section 5(a)(iii) will
apply to Party A and will not apply to Party B.
(e) The "Misrepresentation" provisions of Section 5(a)(iv) will not apply
to Party A or Party B.
(f) The "Cross Default" provisions of Section 5(a)(vi) will not apply to
Party A or Party B.
(g) With respect to Party B only, Section 5(a)(vii)(2) is hereby amended
as follows:
"(2) becomes insolvent or is unable to pay its debts (other than
payments due to holders of its subordinate certificates) or fails or
admits in writing its inability generally to pay its debts (other
than payments to holders of its subordinate certificates) as they
become due"
(h) The "Merger without Assumption" provisions of Section 5(a)(viii) will
apply to Party A and will not apply to Party B.
(i) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will not
apply to Party A or Party B.
(j) The "Automatic Early Termination" provisions of Section 6(a) will not
apply to Party A or Party B.
(k) Payments on Early Termination. For the purpose of Section 6(e):
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(l) "Termination Currency" means U.S. Dollars.
(m) The "Additional Termination Event" provisions of Section 5(b)(v) will
apply as set forth in Part 5(n) hereof.
(n) The "Default under Specified Transaction" provisions of Section
5(a)(v) will not apply to Party A or Party B.
(o) The "Tax Event" provisions of Section 5(b)(ii) will apply to Party A
and will not apply to Party B.
(p) The "Tax Event Upon Merger" provisions of Section 5(b)(iii) will apply
to Party A and will not apply to Party B.
Part 2. Tax Representations.
(a) Payer Representations. For purposes of Section 3(e) of this Agreement,
Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of any
Relevant Jurisdiction to make any deduction or withholding for or on
account of any Tax from any payment (other than interest under
Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be made by it
to the other party under this Agreement. In making this
representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of
this Agreement, (ii) the satisfaction of the agreement contained in
Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement, and (iii) the
satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement, provided that it shall not be a
breach of this representation where reliance is placed on subclause
(ii) and the other party does not deliver a form or document under
Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
Party A Payee Representations. For the purpose of Section 3(f) of this
Agreement, Party A makes the following representations:
(i) It is a "U.S. payee" within the meaning of Treasury Regulation Section
1.1441-5(b).
(ii) It is a United States person within the meaning of Section 7701(a)(30) of
the Internal Revenue Code of 1986, as amended.
Party B Payee Representations. For the purpose of Section 3(f) of this
Agreement, Party B makes the following representation:
(i) It is a trust created under an agreement governed by New York law.
Part 3. Agreement to Deliver Documents.
For the purpose of Section 4(a), each Party Agrees to deliver the
following documents, as applicable:
(a) Tax forms, documents, or certificates to be delivered are:
Party A agrees to complete, execute, and deliver to Party B, United States
Internal Revenue Service Form W-9 or any successor of such form: (i) on a
date which is before the first scheduled payment date under this
Agreement; (ii) promptly upon reasonable demand by Party B; and (iii)
promptly upon learning that any such forms previously provided by Party A
has become obsolete or incorrect.
Party B agrees to complete, execute, and deliver to Party A, United States
Internal Revenue Service Form W-9 or any successor of such forms: (i) on a
date which is before the first scheduled payment date under this
Agreement; (ii) promptly upon reasonable demand by Party A; and (iii)
promptly upon learning that any such forms previously provided by Party B
has become obsolete or incorrect.
(b) Other documents to be delivered are:
Party required to Form/Document/Certificate Date by which to be Covered by
deliver document delivered Section 3(d)
Representation
------------------------- ----------------------------------- ----------------------- --------------
Party A Power of Attorney with respect to At execution of this Yes
Party A Agreement
Party A and Party B Any Credit Support Document At execution of this Yes
identified in Part 4(e) Agreement
Party A Most recently prepared annual As soon as possible Yes
balance sheet of Party A following request of
Party B
Party A Legal opinions with respect to At execution of this No
Party A Agreement
Party B Incumbency certificate or other At execution of this Yes
documents evidencing the authority, Agreement
incumbency and specimen signature
of each person executing this
Agreement, any Credit Support
Document or any Confirmation, as
the case maybe.
Party B Servicer Remittance Reports Promptly upon becoming Yes
available
Party B Legal opinion with respect to At execution of this No
Party B Agreement
Party B An executed copy of the Pooling and Within 30 days after No
Servicing Agreement, dated as of the date of this
September 1, 2006, (the "Pooling Agreement
and Servicing Agreement") among GS
Mortgage Securities Corp., as
depositor, National City Home Loan
Services, Inc., as servicer, Xxxxx
Fargo Bank, National Association,
as servicer, and Deutsche Bank
National Trust Company, as trustee.
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a): Address for
notices or communications to Party A:
Address: 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Swap Administration
Telex No.: 421344
Answerback: GOLSAX
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Electronic Messaging
System Details: None
With a copy to:
Address: 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Treasury Administration
Telex No.: 421344
Answerback: GOLSAX
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Electronic Messaging
System Details: None
Addresses for Notices. For the purpose of Section 12(a): Address for notices
or communications to Party B:
Address: Deutsche Bank National Trust
Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000-0000
Attention Trust Administration-FFMLT Trust
2006-FF13-FF0613
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not Applicable
Party B appoints as its Process Agent: Not Applicable
With a copy to:
Address: Standard & Poor's Ratings Services,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Residential Mortgage Surveillance
Group
Facsimile: 212-438-2652
With a copy to:
Address: Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgage Backed Securities
Group
Facsimile: 000-000-0000
(c) Offices; Multibranch Parties.
(i) The provisions of Section 10(a) will be applicable.
(ii) For the purpose of Section 10(c):
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(d) Calculation Agent. The Calculation Agent is Party A.
(e) Credit Support Document. Details of any Credit Support Document.
(i) With respect to Party A, the Guaranty dated as of September
28, 2006 pursuant to which The Xxxxxxx Sachs Group, Inc. (the
"Goldman Group") guarantees the obligations of Party A to
Deutsche Bank National Trust Company, as trustee on behalf of
the holders of the Mortgage Pass-Through Certificates, Series
0000-XX00 (xxx "Xxxxxxxx") and the Credit Support Annex dated
September 28, 2006, between Party A and Party B.
(ii) With respect to Party B, not applicable.
Each Credit Support Document is incorporated by reference into and
constitutes part of this Agreement and each Confirmation as if set
forth in full in this Agreement or such Confirmation.
(f) Credit Support Provider.
(i) Credit Support Provider means in relation to Party A, the
Goldman Group.
(ii) Credit Support Provider means in relation to Party B, Not
Applicable.
(g) Governing Law. This Agreement and each Confirmation will be governed
by, and construed and enforced in accordance with, the substantive law of the
State of New York, without reference to its choice of law doctrine.
(h) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in the
second line of subparagraph (i) thereof the word "non-"; and (ii) deleting the
final paragraph thereof.
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) will apply to
Transactions with effect from the date of this Agreement. Notwithstanding
anything to the contrary in Section 2(c), amounts that are payable with respect
to the same Calculation Period shall be netted, as provided in Section 2(c),
even if such amounts are not due on the same Payment Date.
(j) "Affiliate" will have the meaning specified in Section 14; provided,
however, Party B shall be deemed to have no Affiliates.
Part 5. Other Provisions.
(a) Accuracy of Specified Information. With respect to Party A, Section
3(d) is hereby amended by adding in the third line thereof after the word
"respect" and before the period the words "or, in the case of audited or
unaudited financial statements or balance sheets, a fair presentation of the
financial condition of the relevant person."
(b) Transfer. Section 7 is hereby amended by:
(i) adding in the third line thereof after the word "party," the
words "which consent shall not be unreasonably withheld or
delayed" and adding in the third line thereof after the clause
"that: - " the words "provided that the Rating Agency
Condition is satisfied in all events (including in the event
of a transfer under Section 6(b)(ii))";
(ii) adding in the second line of subparagraph (a) thereof after
the words "assets to," the words "or reorganization,
incorporation, reincorporation, reconstitution, or reformation
into or as";
(iii) deleting at the end of subparagraph (a) thereof the word
"and";
(iv) deleting in the second line of subparagraph (b) thereof the
period and replacing it with "; and";
(v) adding after subparagraph (b) thereof the following
subparagraph (c):
(c) in addition to, and not in lieu of, the preceding
transfer rights, Party A may, without recourse by Party B or
Party A's transferee to or against Party A, transfer this
Agreement, in whole, but not in part, to any of Party A's
Affiliates or any of the Affiliates of Goldman Group pursuant
to documentation prepared by Party A, provided that:
(i) either (A) such transferee must have a long-term,
unsecured, unsubordinated debt obligation ratings
or financial program ratings (or other similar
ratings) by S&P which are equal to or greater than
the comparable long-term, unsecured,
unsubordinated debt obligation ratings or
financial program ratings (or other similar
ratings) of Party A immediately prior to such
transfer, or (B) the obligations transferred to
such transferee must be guaranteed by Party A
pursuant to a guaranty in substantially the form
of the Guaranty of the Credit Support Provider or
other agreement or instrument consented to by
Party B or other agreement or instrument mutually
agreed upon by both parties and satisfactory to
S&P;
(ii) the transferee will not, as a result of such
transfer, be required to withhold or deduct on
account of a Tax under Section 2(d)(i) on the next
succeeding Scheduled Payment Date an amount in
excess of that which Party A would have been
required to so withhold or deduct on the next
succeeding Scheduled Payment Date in the absence
of such transfer unless the transferee will be
required to make payments of additional amounts
pursuant to Section 2(d)(i)(4) in respect of such
excess;
(iii) an Event of Default or a Termination Event does
not occur as a result of such transfer;
(iv) the Rating Agency Condition is satisfied. With
respect to the results described in subclause (ii)
above, Party A will cause the transferee to make,
and Party B will make, such reasonable Payer Tax
Representations and Payee Tax Representations as
may be mutually agreed upon by the transferee and
Party B in order to permit such parties to
determine that such results will not occur upon or
after the transfer;
(v) Party A agrees to transfer only to a transferee in
a jurisdiction, which it is aware is a "netting"
jurisdiction, that is in which, by opinion of
counsel published by ISDA, netting under this
Agreement shall be enforceable; and
(vi) Party A will be responsible for any costs or
expenses incurred in connection with such
transfer.
(vii) adding at the end of Section 7 the following sentence:
Except as may otherwise be stated in Section 7(c) hereof or in the
documentation evidencing a transfer, a transfer of all of the
obligations of Party A made in compliance with this Section will
constitute an acceptance and assumption of such obligations (and any
related interests so transferred) by the transferee, a novation of
the transferee in place of Party A with respect to such obligations
(and any related interests so transferred), and a release and
discharge by Party B of Party A from, and an agreement by Party B
not to make any claim for payment, liability, or otherwise against
Party A with respect to, such obligations from and after the
effective date of the transfer.
(d) Set-Off. Notwithstanding the last sentence of the first paragraph of
Section 6(e) of this Agreement, but without affecting the provisions of this
Agreement requiring the calculation of certain net payment amounts as a result
of an Event of Default or Termination Event or otherwise, all payments under
this Agreement will be made without setoff or counterclaim.
(e) Reference Market-makers. The definition of "Reference Market-makers"
in Section 14 is hereby amended by adding in the fourth line thereof after the
word "credit" the words "or to enter into transactions similar in nature to
Transactions".
(f) Procedures for Entering into Transactions. On or promptly following
the Trade Date or other transaction date of each Transaction, Party A will send
to Party B a Confirmation. Party B will promptly thereafter request any
correction of such Confirmation (indicating how it believes the terms of such
Confirmation should be correctly stated and such other terms which should be
added to or deleted from such Confirmation to make it correct).
(g) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall be
held to be invalid or unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants, and conditions hereof shall continue in
full force and effect as if this Agreement had been executed with the invalid or
unenforceable portion eliminated, so long as this Agreement as so modified
continues to express, without material change, the original intentions of the
parties as to the subject matter of this Agreement and the deletion of such
portion of this Agreement will not substantially impair the respective benefits
or expectations of the parties to this Agreement; provided, however, that this
severability provision shall not be applicable if any provision of Section 2, 5,
6, or 13 (or any definition or provision in Section 14 to the extent it relates
to, or is used in or in connection with any such Section) shall be so held to be
invalid or unenforceable.
(h) Waiver of Right to Trial by Jury. Each party hereby irrevocably
waives, to the fullest extent permitted by applicable law, any right it may have
to trial by jury in respect of any suit, action or proceeding relating to this
Agreement.
(i) Credit Support Default. Subparagraph (3) of Section 5(a)(iii) is
hereby amended by adding in the second line thereof after the word "Document"
and before the semicolon the words "(or such action is taken by any person or
entity appointed or empowered to operate it or act on its behalf)."
(j) Additional Representations. Section 3 is hereby amended by adding the
following additional subsections:
(i) No Agency. With respect to Party A, it is entering into this
Agreement and each Transaction as principal (and not as agent
or in any other capacity, fiduciary or otherwise) and, with
respect to Party B, Deutsche Bank National Trust Company is
entering into the Agreement in its capacity as Trustee of
Party B.
(ii) Eligible Contract Participant. It is an "eligible contract
participant" as defined in the U.S. Commodity Exchange Act.
(iii) Non-Reliance. Party A is acting for its own account and
Deutsche Bank National Trust Company is acting as Trustee for
Party B. It has made its own independent decisions to enter
into that Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment and
upon advice from such advisers as it has deemed necessary. It
is not relying on any communication (written or oral) of the
other Party as investment advice or as a recommendation to
enter into that Transaction; it being understood that
information and explanations related to the terms and
conditions of a Transaction shall not be considered investment
advice or a recommendation to enter into that Transaction. No
communication (written or oral) received from the other party
shall be deemed to be an assurance or guarantee as to the
expected results of that Transaction.
(iv) Assessment and Understanding; Status of Parties. It is capable
of assessing the merits of and understanding (on its own
behalf or through independent professional advice), and
understands and accepts, the terms, conditions and risks of
that Transaction. It is also capable of assuming, and assumes,
the risks of that Transaction. The other party is not acting
as a fiduciary for or an adviser to it in respect of that
Transaction.
(k) RESERVED.
(l) Regarding Party A. Party B acknowledges and agrees that Party A has
had and will have no involvement in and, accordingly, accepts no responsibility
for: (i) the establishment, structure, or choice of assets of Party B; (ii) the
selection of any person performing services for or acting on behalf of Party B;
(iii) the selection of Party A as the counterparty; (iv) the terms of the
Certificates; (v) the preparation of or passing on the disclosure and other
information contained in any prospectus or prospectus supplement for the
Certificates, the Pooling and Servicing Agreement, or any other agreements or
documents used by Party B or any other party in connection with the marketing
and sale of the Certificates; (vi) the ongoing operations and administration of
Party B, including the furnishing of any information to Party B which is not
specifically required under this Agreement; or (vii) any other aspect of Party
B's existence except for those matters specifically identified in this
Agreement.
(m) No Recourse. The Certificates represent an equity interest in Party B
only and the foregoing does not represent an interest in or obligation of Party
A, and no recourse may be had by the holders of the Certificates against Party A
or its assets with respect to the Notes and the Certificates and/or this
Agreement.
(n) Indemnifiable Tax. Party A agrees that Party B will not be required to
pay any additional amounts pursuant to Section 2(d)(i)(4) of the Agreement in
respect of an Indemnifiable Tax. If Party A is required to pay additional
amounts in respect of a withholding tax pursuant to Section 2(d)(i)(4) of this
Agreement, Party A may transfer this Agreement, subject to satisfaction of the
Rating Agency Condition, as provided in Section 6(b)(ii) of this Agreement and
such transfer shall not require the consent of Party B to the extent it is in
conformance with the provisions of Section 7(c), as amended herein.
(o) Additional Termination Events.
(i) It shall be an Additional Termination Event, with Party A as
the sole Affected Party, if the Depositor determines at any
time that it is required for purposes of compliance with Item
1115(b) of Regulation AB to provide any financial or other
data relating to Party A and, within 15 calendar days of such
determination, Party A fails to assign this Agreement and all
of its obligations hereunder (of its sole cost and expense) to
a substitute counterparty that (A) has agreed to provide any
financial or other data required under Regulation AB, (B) has
agreed to provide indemnifications relating to such financial
or other data acceptable to the Depositor, (C) satisfies the
Rating Agency Condition and (D) is approved by the Depositor
(which approval shall not be unreasonably withheld). For the
avoidance of doubt, unless otherwise specified in this
Agreement, Party A shall be under no obligation to provide any
such financial or other data, whether in connection with this
Termination Event or otherwise. For purposes of this
Termination Event, (i) "Commission" shall mean the Securities
and Exchange Commission, (ii) "Depositor" shall mean GS
Mortgage Securities Corp., and (iii) "Regulation AB" shall
mean the Asset Backed Securities Regulation AB, 17 C.F.R.
ss.ss.229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518,
70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of
the Commission, or as may be provided by the Commission or its
staff from time to time.
(ii) It shall also be an Additional Termination Event if (i) an
Optional Termination Date is designated pursuant to the
Pooling and Servicing Agreement (a "Redemption Termination")
and (ii) theme remains no more than 5 Business Days prior to
the proposed Redemption Date. In the case of a Redemption
Termination, both Party A and Party B shall have the right to
cause a termination of this Agreement and, for purposes of
Section 6(e)(ii) of this Agreement, Party B shall be the sole
Affected Party. Following notification from the Trustee that
it has received a redemption notice, Party A shall provide the
Trustee from time to time, upon request, with good faith
estimates of the amount that would be payable under Section
6(e)(ii) in the event of such Redemption Termination. Any
termination payment payable in respect of such Additional
Termination Event shall be paid on the relevant Redemption
Date.
(iii) It shall also be an Additional Termination Event, with Party A
as the sole Affected Party (except as expressly provided
herein) if Party A's Credit Support Provider, a replacement
counterparty, or a person or an entity that guarantees the
obligations of a replacement counterparty, as the case may be,
has a rating withdrawn or reduced below "BBB-" by S&P or below
"A1" by Moody's and within 7 days thereafter, Party A or such
replacement counterparty, as the case may be, while
collateralizing its Exposure to Party B, fails to transfer
this Agreement, in whole, but not in part, to a counterparty
that satisfies the Required Hedge Counterparty Rating, subject
to satisfaction of the Rating Agency Condition.
Upon downgrade of Party A's Credit Support Provider below
"BBB-" by S&P or below "A1" by Moody's, or if S&P or Moody's
withdraws its ratings for any reason, Party A will promptly
give notice of the circumstances to Party B and to the rating
agencies that at the time are providing ratings for the
Certificates.
Party B shall be entitled to (A)(1) in case of an Additional
Termination Event described in this Part 5(n)(iii),
immediately designate an Early Termination Date, in respect of
all transactions under this Agreement by giving notice to
Party A and (B) no later than the date specified in clause
(A), transfer the rights and obligations of Party A hereunder
to a counterparty that satisfies the Required Hedge
Counterparty Rating, subject to satisfaction of the Rating
Agency Condition.
In connection with a transfer of this Agreement as described
in this Part 5(n)(iii), Party A shall, at its sole cost and
expense, use commercially reasonable efforts to seek a
replacement counterparty.
As used herein, "Required Hedge Counterparty Rating" means,
with respect to a counterparty or entity guaranteeing the
obligations of such counterparty, (x) either (i) if such
counterparty or entity has only a long-term rating by Moody's,
a long-term senior, unsecured debt obligation rating,
financial program rating or other similar rating (as the case
may be, the "Long-Term rating") of at least "Aa3" by Moody's
and if rated "Aa3" by Xxxxx'x is not on negative credit watch
by Moody's or (ii) if such counterparty or entity has a
Long-Term Rating and a short-term rating by Moody's, a
Long-Term Rating of at least "A1" by Moody's and a short-term
rating of "P-1" by Moody's and, in each case, such rating is
not on negative credit watch by Moody's and (y) (i) a
short-term rating of at least "A-1" by S&P or (ii) if such
counterparty or entity does not have a short-term rating by
S&P, a Long-Term Rating of at least "A+" by S&P.
For the purposes of determining the Settlement Amount with
respect to the designation of an Early Termination Date
arising from the Additional Termination Event specified in
Part 5(n)(iii), both Party A and Party B shall be Affected
Parties. If the Settlement Amount calculated pursuant to this
subclause (iii) is an amount owing by Party B to Party A, then
such payment shall be a Swap Termination Payment payable by
Party B to Party A in accordance with the priority of payments
described in the Pooling and Servicing Agreement; provided,
however, that (a) Party B shall use commercially reasonable
efforts to enter into a replacement Transaction(s) with a
counterparty Acceptable to the Rating Agencies, in respect of
the Affected Transaction(s) relating to the Additional
Termination Event; and (b) where multiple quotations are
available such replacement Transaction(s) shall be entered
into based on the quoted price(s) that would result in the
largest payment made to Party B by the replacement
counterparty (it being understood that Party A may be
permitted to actively solicit and obtain such quotations on
behalf of Party B); and (c) to the extent that payments are
received by Party B as a result of entering into such
replacement Transaction(s), then Party A shall have first
priority as to such payments versus all other creditors of
Party B and Party B shall pay the lesser of (x) the amount so
received and (y) the Swap Termination Payment to the extent
not already paid by Party B over to Party A immediately upon
receipt.
As used herein, "Exposure" means, as of any date of
determination, the amount, if any, that would be payable to
Party B by Party A under this Agreement if an Early
Termination Date were to occur as of such date of
determination as a result of a Termination Event, Party A were
the sole Affected Party, all Transactions were terminated in
connection with such Early Termination Date and (solely for
purposes of determining Exposure) the amount of such payment
were calculated using Market Quotation.
For any Additional Termination Event, the date that Party A or Party
B, as the case may be, specifies in its notice of its election to
terminate shall be the Early Termination Date for the Transactions;
provided, that solely in the case of an Additional Termination Event
described in subclause (ii) above, the Early Termination Date shall
be no earlier than the 3rd Business Day preceding the Redemption
Date and no later than the Redemption Date.
(p) Indemnifiable Tax. The definition of "Indemnifiable Tax" in Section 14
is hereby amended by adding the following sentence at the end thereof:
Notwithstanding the foregoing, "Indemnifiable Tax" also means any
Tax imposed in respect of a payment under this Agreement by reason
of a Change in Tax Law by a government or taxing authority of a
Relevant Jurisdiction of the party making such payment, unless the
other party is incorporated, organized, managed and controlled, or
considered to have its seat in such jurisdiction, or is acting for
purposes of this Agreement through a branch or office located in
such jurisdiction.
(q) Limited Recourse; Non-petition. Party A agrees that the obligations of
Party B hereunder are limited recourse obligations payable solely from the
assets of Party B, and due to the extent funds are available for the payment
thereof in accordance with the priority of payments described in the Pooling and
Servicing Agreement. Party A agrees that it will not, prior to the date which is
at least one year and one day or, if longer, the then applicable preference
period following the payment in full of all the Certificates issued pursuant to
the Pooling and Servicing Agreement and the expiration of all applicable
preference periods under Title 11 of the United States Code or other applicable
law relating to any such payment, acquiesce, petition or otherwise invoke or
cause Party B to invoke the process of any governmental authority for the
purpose of commencing or sustaining a case (whether voluntary or involuntary)
against Party B under any bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of Party B or any substantial part of its property or ordering
the winding-up or liquidation of the affairs of Party B. Nothing contained
herein shall prohibit Party A from submitting a claim, or proof of claim, in any
proceeding or process instituted by or against Party B by any person other than
Party A or its Affiliates. Party A and Party B agree that this Part 5(p) shall
survive the termination of this Agreement for any reason whatsoever.
(r) Trustee Capacity. It is expressly understood and agreed by the parties
hereto that insofar as this Agreement is executed by the Trustee (i) this
Agreement is executed and delivered by Deutsche Bank National Trust Company, not
in its individual capacity but solely as Trustee under the Pooling and Servicing
Agreement in the exercise of the powers and authority conferred to and vested in
it thereunder and (ii) under no circumstances shall Deutsche Bank National Trust
Company in its individual capacity be personally liable for the payment of any
indebtedness or expenses or be personally liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken under
this Agreement on behalf of Party B or any assignee.
(s) Additional Party A Covenant. Following a failure to satisfy the rating
requirements set forth in Part 5(n)(iii), Party A shall take the actions
described in accordance with Part 5(n)(iii).
(t) Agreements: Furnish Specified Information. Section 4(a) is hereby
amended by adding at the end thereof the following paragraph:
Notwithstanding the foregoing provisions of this Section 4(a), the
parties agree that, pursuant to the terms of the Power of Attorney
with respect to Party A referred to in Part 3(b) of this Schedule,
any one or more of the officers of Party A's general partner who has
been designated as an agent and attorney in fact of Party A will so
deliver to Party B or such government or taxing authority the
specified or requested forms, documents, or certificates.
(u) Confirmations. Transactions shall be promptly confirmed by the parties
by Confirmations exchanged by mail, telex, facsimile or other electronic means.
Where a Transaction is confirmed by means of an electronic messaging system that
the parties have elected to use to confirm such Transaction (i) such
confirmation will constitute a "Confirmation" as referred to in this Agreement
even where not so specified in the confirmation and (ii) such Confirmation will
supplement, form part of, and be subject to this Agreement and all provisions in
this Agreement will govern the Confirmation except as modified therein.
(v) Tax Documentation. Section 4(a)(iii) of the Agreement is hereby
amended by adding prior to the existing text:
"upon the earlier of learning that any such form or document is
required or"
(w) Inconsistency-Trade Call. In the event of any inconsistency between a
telephone conversation, including a trade call and a Confirmation signed by both
parties, the Confirmation shall govern.
(x) Condition Precedent. The condition precedent in Section 2(a)(iii)(1)
does not apply to a payment and delivery owing by a party if the other party
shall have satisfied in full all its payment or delivery obligations under
Section 2(a)(i) and shall at the relevant time have no future payment or
delivery obligations, whether absolute or contingent, under Section 2(a)(i).
(y) Definitions. This Agreement shall be subject to the 2000 Definitions
(the "2000 Definitions") as published by the International Swaps and Derivatives
Association Inc. The provisions of the 2000 Definitions are incorporated by
reference in and shall be deemed a part of this Agreement, except that all
references in the 2000 Definitions to a "Swap Transaction" shall be deemed
references to a "Transaction" for the purposes of this Agreement. Capitalized
terms used and not otherwise defined herein (or in the 2000 Definitions) shall
have the respective meanings ascribed to such terms in the Pooling and Servicing
Agreement referred to in Part 3(b). If in relation to any Transaction there is
any inconsistency between the 2000 Definitions, this Agreement, the Pooling and
Servicing Agreement, any Confirmation and any other definitions published by
ISDA that are incorporated into any Confirmation, the following will prevail for
purposes of such Transaction in the order of precedence indicated: (i) such
Confirmation (without reference to any definitions or provisions incorporated
therein); (ii) the Pooling and Servicing Agreement; (iii) this Agreement; (iv)
such other definitions; and (v) the 2000 Definitions.
(z) Amendments. Section 9(b) is hereby amended as follows:
(i) by inserting the following phrase immediately prior to the
period at the end of the sentence: "and the Rating Agency
Condition is satisfied"; and
(ii) by adding the following text thereto immediately following the
first sentence: "Amendments to this Agreement or the Schedule
may not be effected in a Confirmation."
(aa) "Rating Agency Condition" means, with respect to any action to which
a Rating Agency Condition applies, that each rating agency then rating the
Certificates shall have been given ten days (or such shorter period as is
acceptable to each such rating agency) prior notice of that action and that each
such rating agency shall have notified the Trustee in writing that such action
will not result in a reduction, qualification or withdrawal of the then current
rating of the Certificates that it maintains.
IN WITNESS WHEREOF, the parties have executed this document on the
respective dates specified below with effect from the date specified on the
first page of this document.
XXXXXXX XXXXX CAPITAL MARKETS, L.P.
By: /s/Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Date: September 28, 2006
FFMLT TRUST 2006-FF13
By: Deutsche Bank National Trust
Company, not in its individual
capacity but solely as Trustee
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Signer
Date: September 28, 2006
EXHIBIT 10.5
CONFIRMATION
DATE: September 20, 2006
TO: Xxxxxxx Sachs Mortgage Company, L.P. (Account No. 760-02312)
Attention: Xxxxx Kong
FROM: Xxxxxxx Sachs Capital Markets, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
SUBJECT: Swap Transaction
REF NO: NUUS6096R0 (920000000) / (006 831 671)
--------------------------------------------------------------------------------
The purpose of this communication is to set forth the terms and conditions of
the above referenced transaction entered into on the Trade Date specified below
(the "Transaction") between Xxxxxxx Xxxxx Capital Markets, L.P. ("Constant
Party"), guaranteed by The Xxxxxxx Sachs Group Inc. ("Goldman Group"), and
Xxxxxxx Sachs Mortgage Company, L.P., ("Counterparty"). This communication
constitutes a "Confirmation" as referred to in paragraph 2 below.
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions"), as published by the International Swaps and Derivatives
Association, Inc. are incorporated into this Confirmation.
2. This Confirmation evidences a complete and binding agreement between Constant
Party and Counterparty as to the terms of the Transaction to which this
Confirmation relates, and this Confirmation evidences the sole Transaction for
the benefit of the certificate holders of FFMLT Trust 2006-FF13 ("FFMLT"). If
Constant Party and Counterparty have entered into a master agreement governing
transactions of this type (the "Agreement"), then this Transaction shall be
governed thereby. If, and so long as, the parties have not entered into such an
Agreement, then, this Transaction shall constitute a "Transaction" within the
scope of, and this Confirmation shall supplement, form a part of, and be subject
to, an agreement in the form of the 1992 ISDA Master Agreement
(Multicurrency-Cross Border) (the "ISDA Form") as if the parties had executed an
agreement in such form effective as of the Trade Date but without any Schedule,
except for (i) the election of Loss and Second Method, (ii) New York law
(without regard to the conflicts of law principles) as the governing law, (iii)
US Dollars as the Termination Currency, (iv) the election that subparagraph (ii)
of Section 2(c) will apply to Transactions, (v) only Section 5(a)(i) Failure to
Pay and Section 5(a)(vii) Bankruptcy will be applicable to the parties (all
other Events of Default will not apply to either party), (vi) Section 5(a)(i) is
modified by replacing the word "third" in the last line of Section 5(a)(I) with
the word "first"), (vii) only 5(b)(i) Illegality, 5(b)(ii) Tax Event and
5(b)(iii) Tax Event Upon Merger will be applicable to the parties (all other
Termination Events will not apply to either party), (viii) the Limited Recourse;
Non-Petition Provision (as described below in Paragraph 4B.) shall apply, and
(ix) Set off under Section 6(e) will not apply. In the event of any
inconsistency between the Definitions, the ISDA Form and this Confirmation, this
Confirmation will govern. Notwithstanding the foregoing, it is understood and
agreed that upon the assignment of this Transaction to FFMLT and pursuant to the
terms of Paragraph 4A hereof, this Transaction shall be governed by the ISDA
Master Agreement and the Schedule thereto between Constant Party and FFMLT dated
as of September 28, 2006 and shall not be governed by the provisions contained
in the second sentence of this Paragraph.
3. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: USD 2,079,161,529 (subject to adjustment
in accordance with the Schedule set
forth Annex I hereto)
Trade Date: September 20, 2006
Effective Date: September 28, 2006
Termination Date: September 25, 2011, subject to
adjustment in accordance with the
Modified Following Business Day
Convention
Initial Payment: USD 3,875,000 payable by Constant Party
to Counterparty on September 28, 2006
Floating Amounts:
Floating Rate Payer Constant Party
Floating Rate Payer Early
Payment Dates: On the day which is one (1) Business Day
prior to each Floating Rate Period End
Date
Floating Rate Option: USD-LIBOR-BBA
Floating Rate Designated
Maturity: 1 Month
Floating Rate Spread: None
Floating Rate Reset Dates: The first day of each Calculation Period
Floating Rate Day Count
Fraction: Actual/360
Floating Rate Period End Dates: Monthly, on the 25th day of each month,
commencing on October 25, 2006 and
ending on the Termination Date,
subject to adjustment in accordance
with the Modified Following Business
Day Convention.
Fixed Amounts:
Fixed Rate Payer Counterparty
Fixed Rate Payer Payment
Dates: Monthly, on the 25th day of each month,
commencing on October 25, 2006 and
ending on the Termination Date, subject
to adjustment in accordance with the
Modified Following Business Day
Convention.
Fixed Rate: 5.47% (subject to adjustment in
accordance with the Schedule set forth
Annex 1 hereto)
Fixed Rate Day Count Fraction: Actual/360
Fixed Xxxx Period End Dates: Adjusted in accordance with the Modified
Following Business Day Convention.
Business Days: New York and Los Angeles
Calculation Agent: Constant Party
4. Additional Provisions:
A. Assignment Provisions: It is acknowledged and agreed by the parties that this
Transaction shall be subject to assignment first by Counterparty to GS Mortgage
Securities Corp., then by GS Mortgage Securities Corp. to FFMLT, and then by
FFMLT, through a collateral assignment, to Deutsche Bank National Trust Company
(the "Trustee"), as Indenture trustee on behalf of the holders of the FFMLT
Trust 2006-FF13 Mortgage Pass-Through Certificates, Series 2006-FF13 (CUSIP
Number: 30247D AA 9, 30247D AB 7, 30247D XX 0, 00000X XX 0, 00000X XX 1, 30247D
AF 8, 30247D AG 8, 30247D AH 4, 30247D AJ 0, 30247D AK 7, 30247D AL 5, 30247D AM
3, 30247D AN 1, 30247D AP 6, 30247D AQ 4, 30247D AR 2, 30247D AB 0, 30247D AT 8,
3074D AU 5, 00000X XX 0, 00000X XX 1, 30247D AX 9); the "Certificates") (each
such assignee is referred to herein as an "Assignee" and each such assignor is
referred to herein as an "Assignor"). These assignments shall occur on the day
the Assignor and Assignee agree to such assignment and provides written or oral
notification of the effective date of assignment to the Constant Party (each
such day hereinafter referred to as an "Assignment Date"). Furthermore, with
respect to each assignment of the Transaction to an Assignee, the Assignee shall
accept assignment of this Transaction subject to all terms of this Confirmation
and all references to the term "Counterparty" herein shall be deemed references
to such Assignee. On each Assignment Date, Constant Party, the relevant Assignor
and the relevant Assignee, in consideration of the premises and the mutual
covenants contained herein and for other good and valuable consideration
received, agree as follows:
(a) Assignor sells, assigns, transfers, and sets over to Assignee, its
successors and permitted assigns, all of its right, title, and interest in, to,
under, and in respect of, the Transaction, Assignor releases and discharges
Constant Party from, and agrees not to make any claim against Constant Party
with respect to, any obligations of Constant Party arising and to be performed
under and in respect of the Transaction after the Assignment Date. Assignor
agrees that Assignee has no liability with respect to any obligation arising or
to be performed under and in respect of the Transaction prior to or on the
Assignment Date.
(b) Assignee accepts such sale, assignment and transfer and assumes and agrees
to perform each and every obligation of Assignor arising and to be performed
under the Transaction after the Assignment Date, with the same force and effect
as if Assignee had been a party to the Transaction originally; it being
understood and agreed that, with respect to the Trustee as Assignee, the Trustee
is an assignee solely by reason of its capacity as indenture trustee (and not in
its individual capacity) and the Trustee in its individual capacity shall have
no obligation or liability for payment of any indebtedness or expenses and shall
not be personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken hereunder.
(c) Constant Party consents to the sale, assignment arid transfer by Assignor
and the assumption by Assignee referred to above. Constant Party releases and
discharges Assignor from, and agrees not to make any claim against Assignor with
respect to, any obligations of Assignor arising and to be performed under and in
respect of the Transaction after the Assignment Date. Constant Party agrees that
Assignee has no liability with respect to any obligation arising or to be
performed under and in respect of the Transaction prior to or on the Assignment
Date.
(d) Assignor hereby represents and warrants to, and covenants and agrees with,
Assignee and Constant Party that: (i) it is duly organized, validly existing,
and in good standing under the law of the jurisdiction of its organization; (ii)
it has all requisite power and authority to assign and delegate to Assignee its
rights and obligations under the Transaction as provided herein and has taken
all necessary action to authorize such assignment and delegation; and (iii) such
assignment and delegation is its legal, valid, and binding obligation
enforceable against Assignor in accordance with the terms hereof.
(e) Assignee hereby represents and warrants to, and covenants and agrees with,
Assignor and Constant Party that: (i) it is duly organized, validly existing,
and in good standing under the law of the jurisdiction of its organization; (ii)
it has all requisite power and authority to assume the rights and obligations of
Assignor under the Transaction as provided herein and perform its obligations
under the Transaction and has taken all necessary action to authorize such
assumption and performance; and (iii) such assumption and the Transaction is its
legal, valid, and binding obligation enforceable against Assignee in accordance
with the terms hereof.
(f) Assignor and Constant Party acknowledge that as of the Assignment Date no
amounts are owed by Assignor or Constant Party to the other under the
Transaction to which this assignment relates.
(g) Any additional assignments of this Transaction to a party other than an
Assignee shall require the consent of Constant Party, such consent not to be
unreasonably withheld. Notwithstanding any provision to the contrary, no
additional assignments of this Transaction to a party other than an Assignee
shall be made, and Constant Party shall not consent to such additional
assignments of this Transaction until written confirmation of consent is
received from the rating agencies that have rated the Certificates that such
assignment will not result in a withdrawal or downgrade of the rating of the
Certificates. Furthermore, no amendment of this Confirmation by an Assignee or
other permitted assign shall be made, and Constant Party shall not consent to
such amendment of this Confirmation, until written confirmation from the rating
agency is received that it has rated the Certificates and such amendment will
not result in a withdrawal or downgrade of the rating of the Certificates.
B. Limited Recourse; Non-Petition Provision:
To the extent FFMLT or the Trustee is a counterparty to Constant Party under the
terms of this Transaction, the obligations of Constant Party hereunder shall be
limited recourse obligations and Constant Party agrees that it will not, prior
to the date that is one year and one day after the payment in full of all the
Certificates, acquiesce, petition or otherwise invoke or cause such permitted
assigns to invoke the process of any governmental authority for the purpose of
commencing or sustaining a case (whether voluntary or involuntary) against such
permitted assigns under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of such permitted assigns or any
substantial part of its property or ordering the winding-up or liquidation of
the affairs of such permitted assigns or making an assignment tar the benefit of
creditors. Nothing contained herein shall prohibit Constant Party from
submitting a claim or proof of claim, in any proceeding or process instituted by
or against such permitted assigns.
C. Trustee Capacity:
It is expressly understood and agreed by the parties hereto that, insofar as
this Confirmation is executed by the Trustee, (i) this Confirmation is executed
and delivered by Deutsche Bank National Trust Company, not in its individual
capacity, but solely as Trustee under the Pooling and Servicing Agreement, dated
as of September 1, 2006, among GS Mortgage Securities Corp., as depositor,
National City Home Loan Services, Inc., as servicer, and the Trustee in the
exercise of the powers and authority conferred to and vested in it thereunder,
and (ii) under no circumstances shall Deutsche Bank National Trust Company in
its individual capacity be personally liable for the payment of any indebtedness
or expenses or be personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken under this Confirmation
on behalf of FFMLT or any assignee.
5. Credit Support Documents: Standard Guaranty of The Xxxxxxx Xxxxx Group, Inc.
6. Account Details:
USD Payments to Constant Party:
For the Account of: Xxxxxxx Sachs Capital Markets, L.P.
Name of Bank: Citibank, N.A. New York
Account No: 40670834
Fed ABA No: 021000089
Constant Party inquiries Swap Operations
Xxxxxxx Xxxxx Capital Markets, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Payments to Trustee: In accordance with Trustee's written
instructions as set forth below or
otherwise delivered to Constant Party.
Name of Bank: Deutsche Bank
Fed ABA No.: 021 001 033
Account No.: 01419663
Acct: NYLTD Funds Control - Stars West
Ret: Trust Administration - FFMLT 2006-FF13
7. The parties hereby agree (a) to check this Confirmation (Reference No.:
NUUS6096R0 (920000000)) carefully and immediately upon receipt so that errors or
discrepancies can be promptly identified and rectified and (b) to confirm that
the foregoing correctly sets forth the terms of the agreement between
Counterparty, Assignor, Assignee and Constant Party with respect to the
particular Transaction to which this Confirmation relates, by manually signing
this Confirmation and providing the other information requested herein and
immediately returning an executed copy to Swap Administration, facsimile No.
000-000-0000.
Very truly yours,
XXXXXXX XXXXX CAPITAL MARKETS, L.P.
By: Xxxxxxx Sachs Capital Markets, L.L.C.,
General Partner
By: /s/Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
Agreed and Accepted By:
Xxxxxxx Xxxxx Mortgage Company, L.P.
By: /s/ Xxxxxxxx Xxxx
--------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
Agreed and Accepted By:
Deutsche Bank National Trust Company, not in its individual capacity, but solely
as Trustee, on behalf of the Trust
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
Counterparty Reference No.:
------------
Annex I
Schedule
For the Calculation Period The applicable USD The applicable Fixed Rate
from and including:* To but excluding:* Notional Amount shall be: shall be:
----------------------------- -------------------------- --------------------------- -------------------------
September 28, 2006 October 25, 2006 2,079,161,529.00 5.47
October 25, 2006 November 25, 2006 2,052,239,021.00 5.49
November 25, 2006 December 25, 2006 2,019,004,207.00 5.45
December 25, 2006 January 25, 2007 1,979,506,376.00 5.57
January 25, 2007 February 25, 2007 1,933,849,147.00 5.40
February 25, 2007 March 25, 2007 1,882,192,191.00 5.37
March 25, 2007 April 25, 2007 1,824,752,330.00 5.36
April 25, 2007 May 25, 2007 1,781,804,295.00 5.33
May 25, 2007 June 25, 2007 1,693,879,453.00 5.29
June 25, 2007 July 25, 2007 1,620,774,913.00 5.23
July 25, 2007 August 25, 2007 1,543,548,962.00 5.19
August 25, 2007 September 25, 2007 1,489,590,033.00 5.15
September 25, 2007 October 25, 2007 1,399,110,938.00 5.11
October 25, 2007 November 25, 2007 1,331,948,409.00 5.07
November 25, 2007 December 25, 2007 1,267,939,407.00 5.05
December 25, 2007 January 25, 2008 1,206,940,380.00 5.02
January 25, 2008 February 25, 2008 1,148,806,900.00 5.00
February 25, 2008 March 25, 2008 1,093,403,391.00 4.98
March 25, 2008 April 25, 2008 1,040,600,669.00 4.97
April 25, 2008 May 25, 2008 990,271,163.00 4.95
May 25, 2008 June 25, 2008 942,303,046.00 4.95
June 25, 2008 July 25, 2008 896,479,877.00 4.95
July 25, 2008 August 25, 2008 852,681,147.00 4.95
August 25, 2008 September 25, 2008 745,223,959.00 4.97
September 25, 2008 October 25, 2005 850,028,245.00 4.98
October 25, 2008 November 25, 2008 568,095,087.00 4.99
November 25, 2008 December 25, 2008 533,519,353.00 5.00
December 25, 2008 January 25, 2009 502,568,988.00 5.01
January 25, 2009 February 25, 2009 473,340,093.00 5.02
February 25,2009 March 25, 2009 445,740,472.00 5.03
March 25, 2009 April 25, 2009 419,674,434.00 5.04
April 25, 2009 May 25, 2009 395,054,366.00 5.05
May 25, 2009 June 25, 2009 395,054,366.00 5.06
June 25, 2009 July 25, 2009 376,568,413.00 5.07
July 25, 2009 August 25, 2008 358,640,456.00 5.08
August 25,2009 September 25, 2009 337,819,165.00 5.10
September 25, 2009 October 25, 2009 320,032,978.00 5.11
October 25, 2009 November 25, 2009 303,222,609.00 5.12
November 25, 2009 December 25, 2009 287,332,832.00 5.14
December 25, 2009 January 25, 2010 272,311,609.00 5.15
January 25, 2010 February 25, 2010 258,109,912.00 5.16
February 25, 2010 March 25, 2010 244,268,876.00 5.17
March 25, 2010 April 25, 2010 231,041,430.00 5.18
April 25, 2010 May 25, 2010 218,531,430.00 5.18
May 25, 2010 June 25, 2010 208,698,610.00 5.19
June 25, 2010 July 25,2010 195,505,015.00 5.20
July 25, 2010 August 25, 2010 184,914,876.00 5.20
August 25, 2010 September 25, 2010 174,894,475.00 5.21
September 25, 2010 October 25, 2010 165,412,027.00 5.22
October 25, 2010 November 25, 2010 158,437,567.00 5.23
November 25, 2010 December 25, 2010 147,942,848.00 5.24
December 25, 2010 January 25, 2011 139,901,234.00 5.24
January 25, 2011 February 25, 2011 132,287,610.00 5.25
February 25, 2011 March 25, 2011 125,078,295.00 5.26
March 25, 2011 April 25, 2011 118,250,955.00 5.26
April 25, 2011 May 25, 2011 111,784,527.00 5.27
May 25, 2011 June 25, 2011 105,659,144.00 5.28
June 25, 2011 July 25, 2011 99,856,050.00 5.28
July 25, 2011 August 25, 2011 94,357,463.00 5.28
August 25, 2011 September 25, 2011 89,129,203.00 5.29
*Subject to adjustment in accordance with the Modified Following Business Day
Convention
EXHIBIT Y
FORM OF ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA EMAIL TO XXXxx.Xxxxxxxxxxxxx@xx.xxx AND VIA OVERNIGHT MAIL TO THE
ADDRESS IMMEDIATELY BELOW
Deutsche Bank National Trust Company, as trustee
0000 Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Email: XXXxx.Xxxxxxxxxxxxx@xx.xxx
Attn.: Trust & Securities Services -- FF0613
RE: **Additional Form [10-D] [10-K] [8-K] Disclosure** Required
-----------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 8.12 of the Pooling and Servicing Agreement (the
"Agreement"), dated as of September 1, 2006, among GS Mortgage Securities Corp.,
as depositor, National City Home Loan Services, Inc., as servicer, and Deutsche
Bank National Trust Company, as trustee, the undersigned, as
[_______________________________________________] hereby notifies you that
certain events have come to our attention that [will] [may] need to be disclosed
on Form [10-D] [10-K] [8-K].
Description of additional Form [10-D] [10-K] [8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form [10-D]
[10-K] [8-K] Disclosure:
Any inquiries related to this notification should be directed to
[_________________________________] phone number
[____________________________]; email address [___________________________].
[NAME OF PARTY],
As [Role]
By: _________________________
Name:
EXHIBIT 10.6
EXHIBIT Z
XXXXX FARGO AGREEMENTS
--------------------------------------------------------------------------------
FFMLT Trust 2006_FF13
MORTGAGE PASS_THROUGH CERTIFICATES, SERIES 2006_FF13
SERIES 2006_13
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
XXXXXXX SACHS MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Servicer
Dated as of
September 28, 2006
--------------------------------------------------------------------------------
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated September
28, 2006 (this "Agreement"), among Xxxxxxx Sachs Mortgage Company, a New York
limited partnership (the "Assignor"), GS Mortgage Securities Corp., a Delaware
corporation (the "Assignee") and Xxxxx Fargo Bank, National Association, a
national banking association (the "Servicer").
WHEREAS, the Assignor and the Servicer have entered into the
Servicing Agreement, dated as of June 30, 2006 (the "Servicing Agreement"),
pursuant to which the Servicer has agreed to service certain mortgage loans
acquired by the Assignor from time to time;
WHEREAS, the servicing of the Mortgage Loans is expected to be
transferred to Xxxxx Fargo on or about November 1, 2006;
For and in consideration of the mutual promises contained herein
and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, and of the mutual covenants herein contained,
the parties hereto hereby agree as follows:
1. Assignment, Assumption and Conveyance.
The Assignor hereby conveys, sells, grants, transfers and assigns to
the Assignee all of the right, title and interest (other than those rights
specifically retained by the Assignor pursuant to this Agreement) of the
Assignor, as purchaser, in, to and under (a) those certain Mortgage Loans (the
"Mortgage Loans") listed on the schedule (the "Mortgage Loan Schedule") attached
hereto as Exhibit A, and (b) solely insofar as it relates to the Mortgage Loans,
that certain Servicing Agreement, by and between the Assignor, as owner (the
"Owner") and the Servicer. The Assignor hereby agrees that it will (i) deliver
possession of notes evidencing the Mortgage Loans to, or at the direction of,
the Assignee or its designee and (ii) take in a timely manner all necessary
steps under all applicable laws to convey and to perfect the conveyance of the
Mortgage Loans as required under the Pooling Agreement (as defined below).
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Servicing Agreement that are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement, (ii) any
rights and obligations of the Assignor pursuant to the Servicing Agreement
arising prior to the date hereof, (iii) the rights and obligations of the Owner
under the following sections of the Servicing Agreement: Section 11.02 (relating
to the Owner's right to terminate the Servicer) and Section 7.01 (relating to
the Owner's right to receive information from the Servicer) or (iv) any rights
of the Assignor under the Commitment Letter, dated as of September 19, 2006 (the
"Commitment Letter"), between the Owner and the Servicer, which rights shall
survive the execution and delivery of this Agreement.
The Assignee hereby assumes all of the Assignor's obligations under
the Mortgage Loans and the Servicing Agreement solely insofar as such
obligations relate to the Mortgage Loans, other than the obligations set forth
in clauses (ii) and (iii) of the preceding paragraph.
2. Recognition of the Servicer.
From and after November 1, 2006 (the "Servicing Transfer Date"), the
Servicer shall and does hereby recognize that the Assignee will transfer the
Mortgage Loans and assign its rights under the Servicing Agreement (solely to
the extent set forth herein) and this Agreement to Deutsche Bank National Trust
Company ("Deutsche Bank"), as trustee (including its successors in interest and
any successor trustees under the Pooling Agreement, the "Trustee"), of the FFMLT
Trust 2006_13 (the "Trust") created pursuant to a Pooling and Servicing
Agreement, dated as of September 1, 2006 (the "Pooling Agreement"), among the
Assignee, Deutsche Bank, as Trustee and National Home Loan Services, Inc., as
servicer. The Servicer hereby acknowledges and agrees that from and after the
Servicing Transfer Date (i) the Trust will be the owner of the Mortgage Loans
and the Servicer will be the servicer of the Mortgage Loans on or after the
applicable Transfer Date pursuant to the terms set forth in the Servicing
Agreement and related Commitment Letter, (ii) the Servicer shall look solely to
the Trust (including the Trustee acting on the Trust's behalf) for performance
of any obligations of the Assignor under the Mortgage Loans and the Servicing
Agreement (solely insofar as it relates to the Mortgage Loans) (except for such
obligations of the Assignor retained by the Assignor hereunder), (iii) the Trust
(including the Trustee acting on the Trust's behalf) shall have all the rights
and remedies available to the Assignor, insofar as they relate to the Mortgage
Loans, under the applicable purchase agreement pursuant to which the Owner
purchased the related Mortgage Loans from the related Seller, and shall be
entitled to enforce all of the obligations of the Servicer thereunder insofar as
they relate to the Mortgage Loans, including without limitation, the remedies
for breaches of representations and warranties set forth in Section 3.02 of the
Servicing Agreement (except for the rights and remedies retained by the Assignor
hereunder), (iv) all references to the Owner under the Servicing Agreement
insofar as they relate to the Mortgage Loans shall be deemed to refer to the
Trust (except to the extent of the rights and obligations retained by the
Assignor hereunder) (including the Trustee acting on the Trust's behalf) and (v)
the Mortgage Loans will be part of a REMIC, and the Servicer shall service the
Mortgage Loans and any real property acquired upon default thereof (including,
without limitation, making or permitting any modification, waiver or amendment
of any term of any Mortgage Loan) after the applicable Transfer Date in
accordance with the Servicing Agreement but in no event in a manner that would
(A) cause the REMIC to fail to qualify as a REMIC or (B) result in the
imposition of a tax upon the REMIC (including but not limited to the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code, the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code, and the tax
on "net income from foreclosure property" as set forth in Section 860G(c) of the
Code). Neither the Servicer nor the Assignor shall amend or agree to amend,
modify, waive, or otherwise alter any of the terms or provisions of the
Servicing Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Servicer's performance under
the Servicing Agreement with respect to the Mortgage Loans without the prior
written consent of the Depositor as set forth in the Pooling Agreement.
3. Modifications of the Servicing Agreement. Only in so far as it
relates to the Mortgage Loans, the Servicer and the Assignor hereby amend the
Servicing Agreement as follows:
a. Notwithstanding anything to the contrary in the Servicing
Agreement, Section 10.01(i) is deleted in its entirety and replaced with the
following:
"any failure by the Servicer to remit to the Owner any payment required to
be made under the terms of this Agreement which continues unremedied for a
period of one (1) Business Day after the date upon which written notice
(which notice shall be confirmed electronically or via facsimile) of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Owner;"
b. Notwithstanding anything to the contrary in the Servicing
Agreement, the first paragraph of Section 9.01(k) is deleted in its entirety and
replaced with the following:
"(k) The Servicer shall indemnify the Owner, each affiliate of the Owner,
and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person, including the
Trustee, 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 Owner, 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, affiliates and agents
of each of the foregoing and of the Depositor (each an "Indemnified
Party"), 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:"
c. Notwithstanding anything to the contrary in the Servicing
Agreement, the following definitions are hereby added to Article I of the
Servicing Agreement:
"Compensating Interest: For any Remittance Date, the lesser of (a)
the Prepayment Interest Shortfall, if any, for such Remittance Date, with
respect to all Principal Prepayments during the related Prepayment Period, and
(b) the aggregate Servicing Fees payable to the Servicer for such Remittance
Date."
"Prepayment Interest Shortfall: With respect to any Remittance Date,
the sum of, for each Mortgage Loan that was, during the related Prepayment
Period, the subject of a Principal Prepayment that was applied by the Servicer
to reduce the outstanding principal balance of such Mortgage Loan on a date
preceding the Due Date in the succeeding Prepayment Period, an amount equal to
the product of (a) the Mortgage Interest Rate net of the Servicing Fee Rate for
such Mortgage Loan, (b) the amount of the Principal Prepayment for such Mortgage
Loan, (c) 1/360 and (d) the number of days commencing on the date on which such
Principal Prepayment was applied and ending on the last day of the related
Prepayment Period."
(iv) Notwithstanding anything to the contrary in the Servicing
Agreement, the Servicer shall remit to the Trustee on each Remittance Date an
amount from its own funds equal to Compensating Interest payable by the Servicer
for such Remittance Date.
(v) The Servicer hereby agrees that it will provide all information
required for the periodic filings under Sections 6.04, 6.05 and 6.06 of the
Servicing Agreement in the time frames and format as required thereunder.
d. Notwithstanding anything to the contrary in the Servicing
Agreement, the definition of "Determination Date" is hereby deleted in its
entirety and replaced with the following:
"The 18th Business Day or if such day is not a Business Day the
immediately preceding Business Day."
4. Accuracy of Servicing Agreement.
The Servicer and the Assignor represent and warrant to the Assignee
that (i) attached hereto as Exhibit B 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 (other than as set forth herein) and (iv) no notice
of termination has been given to the Servicer under the Servicing Agreement.
5. Recognition of Assignee.
From and after the Servicing Transfer Date, 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,
notwithstanding anything herein or in the Servicing Agreement to the contrary,
shall service all of the Mortgage Loans for the benefit of the Assignee pursuant
to the terms of the Servicing Agreement, as modified by this Assignment
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.
6. Representations and Warranties of the Servicer.
The Servicer warrants and represents to and covenants with, the
Assignor, the Assignee and the Trust as of the date hereof that:
(a) The Servicer is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(b) 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 this Agreement and the
Servicing Agreement. The execution by the Servicer of this Agreement is in
the ordinary course of the Servicer's business and will not conflict with,
or result in a breach of, any of the terms, conditions or provisions of
the Servicer's charter or bylaws or any legal restriction, or any material
agreement or instrument to which 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 Servicer or its property is
subject. The execution, delivery and performance by the Servicer of this
Agreement have been duly authorized by all necessary corporate action on
part of the Servicer. This Agreement has been duly executed and delivered
by 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 Servicer, enforceable against 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 Servicer in connection with the execution,
delivery or performance by the Servicer of this Agreement or the
consummation by it of the transaction contemplated hereby;
(d) There is no action, suit, proceeding or investigation pending or
threatened against the Servicer, before any court, administrative agency
or other tribunal, which would draw into question the validity of this
Agreement or the Servicing Agreement, or which, either in any one instance
or in the aggregate, is likely to result in any material adverse change in
the ability of the Servicer to perform its obligations under this
Agreement or the Servicing Agreement, and the Servicer is solvent;
(e) Pursuant to Section 9.01 of the Servicing Agreement, 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 3.01 of the Servicing Agreement are true and correct as
of the date hereof as if such representations and warranties were made on
the date hereof.
7. Representations and Warranties of the Assignor.
The Assignor warrants and represents to the Assignee and the Trust
as of date hereof that:
(a) Prior Assignments; Pledges. 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.
(b) Releases. The Assignor has not satisfied, canceled or
subordinated in whole or in part, or rescinded any Mortgage, and the
Assignor has not released the related Mortgaged Property from the lien of
any 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.
(c) No Waiver. The Assignor has not waived the performance by any
Mortgagor of any action, if such Mortgagor's failure to perform such
action would cause the Mortgage Loan to be in default, nor has the
Servicer waived any default resulting from any action or inaction by such
Mortgagor.
(d) Compliance with Applicable Laws. With respect to each Mortgage
Loan, 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 such Mortgage Loan, including without limitation, any provisions
relating to prepayment charges, have been complied with.
(e) High Cost. With respect to the Mortgage Loans, no Mortgage Loan
is categorized as "High Cost" pursuant to the then_current Standard &
Poor's Glossary for File Format for LEVELS(R) Version 5.6(d), Appendix E,
as revised from time to time and in effect as of the Original Purchase
Date. Furthermore, none of the Mortgage Loans sold by the Seller are
classified as (a) a "high cost mortgage" loan under the Home Ownership and
Equity Protection Act of 1994 or (b) a "high cost home," "covered,"
"high_cost," "high_risk home," or "predatory" loan under any other
applicable state, federal or local law.
(f) Georgia Fair Lending Act. No Mortgage Loan is secured by a
property in the state of Georgia and originated between October 1, 2002
and March 7, 2003.
(g) Qualified Mortgage Loan. Each Mortgage Loan is a "qualified
mortgage" under Section 860G(a)(3) of the Internal Revenue Code of 1986,
as amended.
(h) Credit Reporting. The Assignor will cause to be fully furnished,
in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and
unfavorable) on Mortgagor credit files to Equifax, Experian and Trans
Union Credit Information Company (three of the credit repositories), on a
monthly basis.
(i) Prepayment Premiums. To the Assignor's knowledge, with respect
to any Mortgage Loan that contains a provision permitting imposition of a
Prepayment Premium prior to maturity: (a) prior to the Mortgage Loan's
origination, the borrower agreed to such premium in exchange for a
monetary benefit, including but not limited to a rate or fee reduction;
(b) prior to the Mortgage Loan's origination, the borrower was offered the
option of obtaining a Mortgage Loan that did not require payment of such a
premium; (c) the prepayment premium is adequately disclosed to the
borrower pursuant to applicable state and federal law; (d) no Mortgage
Loan originated on or after October 1, 2002 will impose a prepayment
premium for a term in excess of three (3) years and any Mortgage Loans
originated prior to such date will not impose Prepayment Premiums in
excess of five (5) years, in each case unless the Mortgage Loan was
modified to reduce the prepayment period to no more than three years from
the date of the note and the borrower was notified in writing of such
reduction in prepayment period; and (e) notwithstanding any state or
federal law to the contrary, the Servicer may impose such Prepayment
Premium in any instance when the Mortgage Loan is accelerated or paid off
in connection with the workout of a delinquent mortgage or due to the
borrower's default.
8. Remedies for Breach of Representations and Warranties of the
Assignor.
The Assignor hereby acknowledges and agrees that in the event of any
breach of the representations and warranties made by the Assignor set forth in
Section 7 hereof or in Section 7 of the Assignment Agreement, dated as of
September 28, 2006, among the Assignor and Assignee and First Franklin Financial
Corporation (the "Assignment Agreement") that materially and adversely affects
the value of the Mortgage Loans or the interest of the Assignee or the Trust
therein, within sixty (60) days of the earlier of either discovery by or notice
to the Assignor of such breach of a representation or warranty, it shall cure,
purchase, cause the purchase of, or substitute for the applicable Mortgage Loan
in the same manner and subject to the conditions set forth in Section 8 of the
Assignment Agreement.
9. Miscellaneous.
(a) 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.
(b) 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.
(c) This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the
Trustee acting on the Trust's behalf). Any entity into which the Assignor,
Assignee or the Servicer may be merged or consolidated shall, without the
requirement for any further writing, be deemed Assignor, Assignee or the
Servicer, respectively, hereunder.
(d) Each of this Agreement and the Servicing Agreement shall survive
the conveyance of the Mortgage Loans and the assignment of the Purchase
Agreements and the Servicing Agreement (to the extent assigned hereunder)
by the Assignor to the Assignee and by Assignee to the Trust and nothing
contained herein shall supersede or amend the terms of the Purchase
Agreements and the Servicing Agreement.
(e) 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.
(f) In the event that any provision of this Agreement conflicts with
any provision of the Servicing Agreement with respect to the Mortgage
Loans, the terms of this Agreement shall control.
(g) Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to
such terms in the purchase agreements or the Servicing Agreement, as
applicable.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
XXXXXXX XXXXX MORTGAGE COMPANY, a New
York limited partnership
By: XXXXXXX SACHS REAL ESTATE FUNDING
CORP., a New York corporation, as General
Partner
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Servicer
By: /s/ Xxxxxx XxXxxxxx
-----------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
EXHIBIT A
Mortgage Loan Schedule
[On File with the Trustee as provided by the Depositor]
EXHIBIT B
Servicing Agreement
[On File with the Depositor]
--------------------------------------------------------------------------------
XXXXXXX SACHS MORTGAGE COMPANY
Owner
and
XXXXX FARGO BANK, N.A.
Servicer
SERVICING AGREEMENT
Dated as of June 30, 2006
Fixed and Adjustable Rate Residential Mortgage Loans
--------------------------------------------------------------------------------
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
POSSESSION OF MORTGAGE FILES; BOOKS AND RECORDS;
CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS
Section 2.01 Possession of Mortgage Files; Maintenance of Servicing
Files........................................................
Section 2.02 Books and Records; Transfers of Mortgage Loans................
Section 2.03 Custodial Agreement; Delivery of Documents....................
ARTICLE III
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section 3.01 Servicer Representations and Warranties.......................
Section 3.02 Remedies......................................................
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Servicer to Act as Servicer...................................
Section 4.02 Liquidation of Mortgage Loans.................................
Section 4.03 Collection of Mortgage Loan Payments..........................
Section 4.04 Establishment of and Deposits to Custodial Account............
Section 4.05 Permitted Withdrawals From Custodial Account..................
Section 4.06 Establishment of and Deposits to Escrow Account...............
Section 4.07 Permitted Withdrawals From Escrow Account.....................
Section 4.08 Payment of Taxes, Insurance and Other Charges.................
Section 4.09 Protection of Accounts........................................
Section 4.10 Maintenance of Hazard Insurance...............................
Section 4.11 Maintenance of Mortgage Impairment Insurance..................
Section 4.12 Maintenance of Fidelity Bond and Errors and Omissions
Insurance....................................................
Section 4.13 Inspections...................................................
Section 4.14 Restoration of Mortgaged Property.............................
Section 4.15 Maintenance of PMI Policy or LPMI Policy; Claims..............
Section 4.16 Title, Management and Disposition of REO Property.............
Section 4.17 Real Estate Owned Reports.....................................
Section 4.18 Liquidation Reports...........................................
Section 4.19 Reports of Foreclosures and Abandonments of Mortgaged
Property.....................................................
Section 4.20 Application of Buydown Funds..................................
Section 4.21 Notification of Adjustments...................................
Section 4.22 Confidentiality/Protection of Customer Information............
Section 4.23 [Due Dates other than the First Day of the Month..............
Section 4.24 Fair Credit Reporting Act.....................................
Section 4.25 Use of Subservicers and Subcontractors........................
ARTICLE V
PAYMENTS TO OWNER
Section 5.01 Remittances...................................................
Section 5.02 Statements to Owner...........................................
Section 5.03 Reserved
Section 5.04 Repurchase....................................................
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 Transfers of Mortgaged Property...............................
Section 6.02 Satisfaction of Mortgages and Release of Mortgage Files.......
Section 6.03 Servicing Compensation........................................
Section 6.04 Annual Statements as to Compliance............................
Section 6.05 Annual Independent Public Accountants' Servicing Report.......
Section 6.06 Report on Assessment of Compliance and Attestation............
Section 6.07 Remedies......................................................
Section 6.08 Right to Examine Servicer Records.............................
Section 6.09 Compliance with REMIC Provisions..............................
ARTICLE VII
SERVICER TO COOPERATE
Section 7.01 Provision of Information......................................
Section 7.02 Financial Statements; Servicing Facility......................
ARTICLE VIII
THE SERVICER
Section 8.01 Indemnification; Third Party Claims...........................
Section 8.02 Merger or Consolidation of the Servicer.......................
Section 8.03 Limitation on Liability of Servicer and Others................
Section 8.04 Limitation on Resignation and Assignment by Servicer..........
ARTICLE IX
SECURITIZATION TRANSACTIONS
Section 9.01 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Securitization Transaction..................
ARTICLE X
DEFAULT
Section 10.01 Events of Default.............................................
Section 10.02 Waiver of Defaults............................................
ARTICLE XI
TERMINATION
Section 11.01 Termination...................................................
Section 11.02 Termination Without Cause.....................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Successor to Servicer.........................................
Section 12.02 Amendment.....................................................
Section 12.03 Governing Law.................................................
Section 12.04 Duration of Agreement.........................................
Section 12.05 Notices.......................................................
Section 12.06 Severability of Provisions....................................
Section 12.07 Relationship of Parties.......................................
Section 12.08 Execution; Successors and Assigns.............................
Section 12.09 Recordation of Assignments of Mortgage........................
Section 12.10 Assignment by Owner...........................................
Section 12.11 Solicitation of Mortgagor.....................................
Section 12.12 Further Agreements............................................
Section 12.13 Conflicts.....................................................
Section 12.14 Third Party Beneficiaries.....................................
EXHIBITS
Exhibit A Form of Acknowledgment Agreement
Exhibit B Form of Assignment and Assumption
Exhibit C Reserved
Exhibit D Reserved
Exhibit E Form of Custodial Account Certification
Exhibit F Form of Escrow Account Certification
Exhibit G Form of Power or Attorney
Exhibit H Servicing Criteria
Exhibit I Sarbanes Certification
This is a Servicing Agreement for fixed-rate and adjustable-rate
residential first or second lien mortgage loans, dated and effective as of June
30, 2006, and is executed between Xxxxxxx Sachs Mortgage Company, as owner (the
"Owner"), and Xxxxx Fargo Bank, N.A., as servicer (the "Servicer").
W I T N E S S E T H
WHEREAS, the Owner has agreed to sell, from time to time, and the
Servicer shall purchase, from time to time, the servicing rights pursuant to
that certain Flow Servicing Rights Purchase and Sale Agreement dated as of June
30, 2006 between the Owner and the Servicer;
WHEREAS, the parties desire to set forth the terms and conditions as
to the servicing of the Mortgage Loans in which Servicer owns the servicing
rights, pursuant to this Servicing Agreement;
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 Owner and the Servicer
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 the Mortgage Loans
in the jurisdiction where the related Mortgaged Property is located.
Acknowledgment Agreement: An acknowledgment agreement substantially
in the form of Exhibit A, agreed to by the parties hereto that makes specific
reference to this Agreement to be executed on or prior to each Transfer Date
with respect to servicing of Mortgage Loans by the Servicer.
Adjustment Date: As to each adjustable-rate Mortgage Loan, the date
on which the Mortgage Interest Rate is adjusted in accordance with the terms of
the related Mortgage Note and Mortgage.
Agency/Agencies: Xxxxxx Mae, Xxxxxxx Mac or either of them as
applicable.
Agreement: This Servicing Agreement and all exhibits and amendments
hereof and supplements hereto.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the ownership of the Mortgage by the Owner, or if the related Mortgage has been
recorded in the name of MERS or its designee, such actions as are necessary to
cause the Owner 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, including assignment of the MIN
Number which will appear either on the Mortgage or the Assignment of Mortgage to
MERS.
Assignment of Mortgage Note and Pledge Agreement: With respect to a
Cooperative Loan, an assignment of the Mortgage Note and Pledge Agreement.
Assignment of Proprietary Lease: With respect to a Cooperative Loan,
an assignment of the Proprietary Lease sufficient under the laws of the
jurisdiction wherein the related Cooperative Apartment is located to effect the
assignment of such Proprietary Lease.
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 of
California, Iowa, Maryland, Minnesota, New York or South Carolina are authorized
or obligated by law or executive order to be closed.
Buydown Agreement: An agreement between the originator of a Mortgage
Loan and a Mortgagor, or an agreement among the originator, a Mortgagor and a
seller of a Mortgaged Property or a third party with respect to a Mortgage Loan
which provides for the application of Buydown Funds.
Buydown Funds: In respect of any Buydown Mortgage Loan, any amount
contributed by the seller of a Mortgaged Property subject to a Buydown Mortgage
Loan, the buyer of such property, or any other source, plus interest earned
thereon, in order to enable the Mortgagor to reduce the payments required to be
made from the Mortgagor's funds in the early years of a Mortgage Loan.
Buydown Mortgage Loan: Any Mortgage Loan in respect of which,
pursuant to a Buydown Agreement, (i) the Mortgagor pays less than the full
monthly payments specified in the Mortgage Note for a specified period, and (ii)
the difference between the payments required under such Buydown Agreement and
the Mortgage Note is provided from Buydown Funds.
Buydown Period: The period of time when a Buydown Agreement is in
effect with respect to a related Buydown Mortgage Loan.
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.
Commission: The United States Securities and Exchange Commission.
Commitment Letter: The commitment by Servicer to purchase the
Servicing Rights from Owner, pursuant to the Purchase Agreement.
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.
Cooperative: The entity that holds title (fee or an acceptable
leasehold estate) to all of the real property that the Project comprises,
including the land, separate dwelling units and all common areas.
Cooperative Apartment: The specific dwelling unit relating to a
Cooperative Loan.
Cooperative Loan: A Mortgage Loan that is secured by Cooperative
Shares and a Proprietary Lease granting exclusive rights to occupy the related
Cooperative Apartment.
Cooperative Shares: The shares of stock issued by a Cooperative,
owned by the Mortgagor, and allocated to a Cooperative Apartment.
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 4.04.
Custodial Agreement: The agreement governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents.
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: With respect to the transfer of servicing by the Owner
to the Servicer for any group of Mortgage Loans, the date so specified in the
related Acknowledgment Agreement.
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
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 of the Remittance
Date and ending on the first day of the month of the Remittance Date.
Errors and Omissions Insurance Policy: An errors and omissions
insurance policy to be maintained by the Servicer pursuant to Section 4.12.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 4.06.
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 related
document.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 10.01.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Xxxxxx Xxx: The entity formerly known as Federal National Mortgage
Association (FNMA), or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Fidelity Bond: A fidelity bond to be maintained by the Servicer
pursuant to Section 4.12.
Xxxxxxx Mac: The entity also known as the Federal Home Loan Mortgage
Corporation (FHLMC), or any successor thereto.
HUD: The Department of Housing and Urban Development.
Indemnified Party: As defined in Section 9.01(k).
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interagency Guidelines: The Interagency Guidelines Establishing
Standards for Safeguarding Customer Information, 66 Fed. Reg. 8616.
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 or otherwise, or the sale of the related
Mortgaged Property if the Mortgaged Property is acquired in satisfaction of the
Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio of the original loan amount of the Mortgage Loan at its origination
(unless otherwise indicated) to the Appraised Value of the Mortgaged Property.
LPMI Policy: A policy of primary mortgage guaranty insurance issued
by a Qualified Insurer 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.
Master Servicer: With respect to any Securitization Transaction, the
"master servicer," if any, identified in the related transaction documents.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor in interest thereto.
MERS Mortgage Loan: Any Mortgage Loan as to which the related
Mortgage or Assignment of Mortgage has been registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number used to identify mortgage
loans registered under MERS.
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 Servicer pursuant to Section
5.03 on the Business Day immediately preceding the Remittance Date of the
related month.
Monthly Payment: The scheduled monthly payment of principal and
interest or, with respect to an interest only Mortgage Loan, payments of (i)
interest, or (ii) principal and interest, if applicable, on a Mortgage Loan.
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
or the Pledge Agreement securing the Mortgage Note for a Cooperative Loan.
Mortgage File: The Mortgage Loan Documents, and any additional
documents required to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note in accordance with the provisions of the Mortgage Note.
Mortgage Loan: An individual mortgage loan or a Cooperative Loan
which is the subject of this Agreement, each Mortgage Loan or a Cooperative Loan
originally sold and subject to this Agreement being identified on the Mortgage
Loan Schedule, which Mortgage Loan or a Cooperative Loan includes without
limitation the Servicing 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 or a Cooperative Loan.
Mortgage Loan Documents: With respect to a Mortgage Loan, the
original related Mortgage Note with applicable addenda and riders, the original
related Mortgage and the originals of any required addenda and riders, the
original related Assignment of Mortgage and any original intervening related
Assignments of Mortgage, the original related title insurance policy and
evidence of the related PMI Policy or LPMI Policy, if any.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest remitted to the Owner, which shall be equal to the
related Mortgage Interest Rate minus the Servicing Fee Rate and minus any lender
paid PMI Policy premiums, if applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans subject to this
Agreement, annexed to each Acknowledgment Agreement.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of the debt
evidenced by a Mortgage Note, or with respect to a Cooperative Loan, the
Cooperative Apartment.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President or
an Assistant Vice President and certified by the Treasurer or the Secretary or
one of the Assistant Treasurers or Assistant Secretaries of the Servicer, and
delivered to the Owner as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Servicer, reasonably acceptable to the Owner.
Owner: Xxxxxxx Xxxxx Mortgage Company or its successor in interest
or any successor to the Owner under this Agreement as herein provided.
Person: Any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
Pledge Agreement: With respect to a Cooperative Loan, the specific
agreement creating a first lien on and pledge of the Cooperative Shares and the
appurtenant Proprietary Lease.
Pledge Instruments: With respect to a Cooperative Loan, the Stock
Power, the Assignment of the Proprietary Lease and the Assignment of the
Mortgage Note and Pledge Agreement.
PMI Policy: A policy of primary mortgage guaranty insurance
evidenced by an electronic form and certificate number issued by a Qualified
Insurer, as required by this Agreement with respect to certain Mortgage Loans.
Prepayment Charge: Payments calculated pursuant to the Mortgage Note
and due pursuant to the terms of the Mortgage Loan Documents as the result of a
Principal Prepayment of the Mortgage Loan, not otherwise due thereon in respect
of principal or interest.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
including any prepayment penalty or premium thereon and which is not accompanied
by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Principal Prepayment Period: The calendar month preceding the month
in which the related Remittance Date occurs.
Project: With respect to a Cooperative Loan, all real property owned
by the related Cooperative including the land, separate dwelling units and all
common areas.
Proprietary Lease: With respect to a Cooperative Loan, a lease on a
Cooperative Apartment evidencing the possessory interest of the Mortgagor in
such Cooperative Apartment.
Purchase Agreement: The Flow Servicing Rights Purchase and Sale
Agreement dated as of June 30, 2006 between the Owner and the Servicer.
Qualified Depository: A deposit account or accounts maintained with
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 Services or
Prime-1 by Xxxxx'x Investors Service, Inc. (or a comparable rating if another
rating agency is specified by the Owner by written notice to the Servicer) at
the time any deposits are held on deposit therein; provided, however, that in
the event any of the Mortgage Loans are subject to a Securitization Transaction,
the Servicer 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
Securitization Transaction.
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 Mae.
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 Securitization
Transaction.
Rating Agency Delivery Event: As defined in Section 9.1(o).
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Agreement: The agreement or agreements entered into
by the Servicer and the Owner and/or certain third parties on the Reconstitution
Date or Dates with respect to any or all of the Mortgage Loans serviced
hereunder, in connection with a Whole Loan Transfer or Securitization
Transaction.
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement may be removed from this Agreement and
reconstituted as part of a Securitization Transaction or Whole Loan Transfer
pursuant to Section 9.01 hereof. The Reconstitution Date shall be such date
which the Owner shall designate. On such date, the Mortgage Loans transferred
may cease to be covered by this Agreement and the Servicer's servicing
responsibilities may cease under this Agreement with respect to the related
transferred Mortgage Loans.
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 (January 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1, Subtitle A of the Code, and related provisions, regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Date: The 24th calendar day (or if such day is not a
Business Day, the first Business Day immediately preceding such date) of any
month, unless otherwise agreed upon in writing contained in the Securitization
Materials.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Disposition Fee: The REO Disposition fee shall be the greater of
one percent (1%) of the gross sales price of the REO Property or $1,500.00 per
REO Property, unless Servicer is entitled to a rebate on the broker commission
paid, in which case the REO Disposition Fee shall be no greater than $400 per
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 Servicer on
behalf of the Owner through foreclosure or by deed in lieu of foreclosure, as
described in Section 4.16.
Sale Date: Each date on which the Servicer acquires the right, title
and interest in and to the Servicing Rights attendant to Mortgage Loans.
Sarbanes Certification: A Xxxxxxxx-Xxxxx certification as defined in
Section 6.06(iv).
Securities Act of 1933 or the 1933 Act: The Securities Act of 1933,
as amended.
Securitization Materials: As defined in Section 9.01(l)(i).
Securitization Transaction: Any transaction involving either (a) 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 (b)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Seller: Each person who sold Mortgage Loans to the Owner.
Servicer: Xxxxx Fargo Bank, N.A., or its successor in interest or
assigns, or any successor to the Servicer under this Agreement appointed as
herein provided.
Servicer Information: As defined in Section 9.01(k)(i)(A).
Servicer Employees: As defined in Section 4.12.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorney's fees and
disbursements) incurred in the performance by the Servicer 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 4.08.
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 Owner shall pay to the Servicer, 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 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 received.
The obligation of the Owner 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 4.05) of such Monthly Payment collected by the Servicer, or as otherwise
provided under Section 4.05.
Servicing Fee Rate: the percentage per annum with respect to each
Mortgage Loan set forth in the applicable Mortgage Loan Schedule.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer consisting of originals of all documents in the
Mortgage File which are not delivered to the Owner or the Custodian and copies
of the Mortgage Loan Documents listed in the Custodial Agreement, if applicable,
the originals of which are delivered to the Custodian or the Owner pursuant to
Section 2.03.
Servicing Rights: the servicing rights with respect to the Mortgage
Loans, as further defined within the applicable Commitment Letter.
Stated Principal Balance: As to each Mortgage Loan and as of any
date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, whether or not received, minus (ii) all amounts previously distributed to
the Owner with respect to the related Mortgage Loan representing payments or
recoveries of principal.
Stock Certificate: With respect to a Cooperative Loan, a certificate
evidencing ownership of the Cooperative Shares issued by the Cooperative.
Stock Power: With respect to a Cooperative Loan, an assignment of
the Stock Certificate or an assignment of the Cooperative Shares issued by the
Cooperative.
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
Servicer or a Subservicer.
Subservicer: Any person that services Mortgage Loans on behalf of
the Servicer or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Servicer under
this Agreement or any Reconstitution Agreement that are identified in Item
1122(d) of Regulation AB.
Termination Fee: With respect to each Mortgage Loan, a fee equal to
the greater of: (i) the product of the Purchase Price Percentage (as defined in
the Commitment Letter or Purchase Agreement) multiplied by the Stated Principal
Balance of such Mortgage Loan, and (ii) the fair market value of the related
Servicing Rights, in each case as of the date of termination.
Transfer Date: Each date on which Servicing Rights are transferred
to the Servicer hereunder.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans by the Owner to a third party, which sale or transfer is not a
Securitization Transaction.
ARTICLE II
POSSESSION OF MORTGAGE FILES; BOOKS AND RECORDS;
CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS
Section 2.01 Possession of Mortgage Files; Maintenance of Servicing
Files. From and after each Transfer Date or Sale Date, as applicable, the
contents of each Mortgage File not delivered to the Owner or held by the
Custodian shall be held in trust by the Servicer for the benefit of the Owner as
the owner thereof. The Servicer shall maintain a Servicing File consisting of a
copy of the contents of each Mortgage File and the originals of the documents in
each Mortgage File not delivered to the Owner or the Custodian, as applicable.
The possession of each Servicing File by the Servicer is at the will of the
Owner for the sole purpose of servicing the related Mortgage Loan, and such
retention and possession by the Servicer is in a custodial capacity only. The
ownership of each Mortgage Note, the related Mortgage and the related Mortgage
File are vested in the Owner, 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 vest immediately in the Owner and shall be
retained and maintained by the Servicer, in trust, at the will of the Owner and
only in such custodial capacity. The Servicer shall release its custody of the
contents of any Servicing File only in accordance with written instructions from
the Owner, unless such release is required as incidental to the Servicer's
servicing of the Mortgage Loans or is in connection with a repurchase of any
Mortgage Loan. All such costs associated with the release, transfer and
re-delivery of any Servicing Files to the Servicer shall be the responsibility
of the Owner, except in the case of any transfer of Servicing Files required
pursuant to a termination of Servicer pursuant to Section 10.01, in which case
said costs shall be borne by the Servicer.
In addition, in connection with the assignment of any MERS Mortgage
Loan, the Servicer agrees that it will cause the MERS System to indicate that
such Mortgage Loan has been assigned by the Servicer to the Owner in accordance
with this Agreement by including (or deleting, in the case of a Mortgage Loan
repurchased in accordance with this Agreement) in such computer files the
information required by the MERS System to identify the Owner as the beneficial
owner of such Mortgage Loan.
Section 2.02 Books and Records; Transfers of Mortgage Loans. 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 Servicer in trust for the benefit of the Owner as owner of the
Mortgage Loans, and the Servicer 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.
To the extent that original documents are not required for purposes
of realization of Liquidation Proceeds or Insurance Proceeds, documents
maintained by the Servicer 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 Servicer complies with the
requirements of the Xxxxxx Xxx Selling and Servicing Guide, as amended from time
to time.
The Servicer shall maintain with respect to each Mortgage Loan and
shall make available for inspection by any Owner or its designee the related
Servicing File during the time the Owner retains ownership of a Mortgage Loan
and thereafter in accordance with applicable laws and regulations.
The Servicer shall keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Servicer
shall note transfers of Mortgage Loans. No transfer of a Mortgage Loan may be
made unless such transfer is in compliance with the terms hereof. For the
purposes of this Agreement, the Servicer shall be under no obligation to deal
with any Person with respect to this Agreement or the Mortgage Loans unless the
books and records show such Person as the owner of the Mortgage Loan. The Owner
may, subject to the terms of this Agreement, sell and transfer one or more of
the Mortgage Loans. Upon receipt of notice of the transfer, the Servicer shall
xxxx its books and records to reflect the ownership of the Mortgage Loans of
such assignee, and shall release the previous Owner 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 Servicer no fewer than five (5) Business Days before the last
Business Day of the month. If such notification is not received as specified
above, the Servicer's duties to remit and report as required by Section 5 shall
begin with the following Monthly Accounting Cut-off Date.
Section 2.03 Custodial Agreement; Delivery of Documents. The
Servicer shall forward to the Owner or the Custodian, as applicable, original
documents evidencing an assumption, modification, consolidation or extension of
any Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within
one week of their execution, provided, however, that the Servicer shall provide
the Owner or the Custodian, as applicable, 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, the Servicer shall deliver to the Owner or the Custodian
within 240 days of its 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 Servicer will be
required to deliver the document to the Owner or the Custodian by the date
specified in (iv) above. An extension of the date specified in (iv) above may be
requested from the Owner, which consent shall not be unreasonably withheld.
In the event that new, replacement, substitute or additional Stock
Certificates are issued with respect to existing Cooperative Shares, the
Servicer immediately shall deliver to the Owner or the Custodian the new Stock
Certificates, together with the related Stock Powers in blank. Such new Stock
Certificates shall be subject to the related Pledge Instruments and shall be
subject to all of the terms, covenants and conditions of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section 3.01 Servicer Representations and Warranties. The Servicer
hereby represents and warrants to the Owner that, as of each Transfer Date and
Sale Date:
(a) Due Organization and Authority. The Servicer 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 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 and the servicing of such 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 of 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, who is in the business of selling and servicing loans,
and are not subject to the bulk transfer or any similar statutory provisions in
effect in any applicable jurisdiction;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, 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 Servicer 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
Servicer or its property is subject, or impair the ability of the Owner to
realize on the Mortgage Loans, or impair the value of the Mortgage Loans;
(d) Ability to Service. The Servicer is an approved seller/servicer
of conventional residential mortgage loans for Xxxxxx Xxx or 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 Servicer
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 or Xxxxxxx Mac, and no event has occurred, including but not limited
to a change in insurance coverage, which would make the Servicer unable to
comply with Xxxxxx Mae or Xxxxxxx Mac eligibility requirements or which would
require notification to either Xxxxxx Mae or Xxxxxxx Mac;
(e) 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;
(f) 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 and the Servicer is solvent;
(g) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or 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 of any action taken or to be contemplated herein,
or which would be likely to impair materially the ability of the Servicer to
perform under the terms of this Agreement;
(h) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by the Servicer of or compliance by the Servicer with
this Agreement, or if required, such approval has been obtained prior to the
respective Transfer Date or Sale Date. Servicer has complied with, and is not in
default under, any law, ordinance, requirement, regulation, rule, or order
applicable to its business or properties, the violation of which would
materially and adversely affect the operations or financial condition of
Servicer or its ability to perform its obligations hereunder;
(i) 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;
(j) No Material Change. There has been no material adverse change in
the business, operations, financial condition or assets of the Servicer since
the date of the Servicer's most recent financial statements;
(k) No Brokers' Fees. The Servicer 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 transactions contemplated hereunder;
(l) MERS. The Servicer is a member of MERS in good standing; and
(m) Effective Agreement. The execution, delivery and performance of
this Agreement by Servicer and consummation of the transactions contemplated
hereunder have been or will be duly and validly authorized by all necessary
organizational or other action; this Agreement is valid and a legally binding
agreement of Servicer enforceable against Servicer in accordance with its terms,
subject to the effect of insolvency, liquidation, conservatorship and similar
laws administered by the FDIC affecting the contract obligations of insured
banks and the discretion of a court to grant specific performance.
Section 3.02 Remedies. The Servicer shall indemnify and hold the
Owner, its respective present and former directors, officers, employees and
agents harmless from any and all claims, losses, damages, penalties, fines,
forfeitures (including, without limitation, any reasonable and necessary legal
fees and expenses, judgments or expenses relating to such liability, claim, loss
or damage) and related costs, judgments, and any other reasonable costs, fees
and expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from a breach of the Servicer's representations and
warranties contained in this Agreement. It is understood and agreed that the
obligations of the Servicer to indemnify the Owner as provided in this Section
3.02 constitute the sole remedies of the Owner respecting a breach of the
foregoing representations and warranties.
Any cause of action against the Servicer relating to or arising out
of the breach of any representations and warranties made in Section 3.01 shall
accrue as to any Mortgage Loan upon (i) discovery of such breach by the Owner or
notice thereof by the Servicer to the Owner, (ii) failure by the Servicer to
cure such breach, and (iii) demand upon the Servicer by the Owner for compliance
with this Agreement.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Servicer to Act as Servicer. The Servicer, 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 Subservicer or a Subcontractor, to do any and all things in connection with
such servicing and administration which the Servicer may deem necessary or
desirable, consistent with the terms of this Agreement and with Accepted
Servicing Practices and, in the case of any Mortgage Loan transferred to a
REMIC, with the REMIC Provisions. The Servicer shall be responsible for any and
all acts of a Subservicer and a Subcontractor, and the Servicer's utilization of
a Subservicer or a Subcontractor shall in no way relieve the liability of the
Servicer under this Agreement. The Servicer shall service the Mortgage Loans,
sold or transferred pursuant to a Securitization Transaction, on a
"scheduled/scheduled" basis pursuant to this Agreement.
Consistent with the terms of this Agreement and subject to the REMIC
Provisions if a Mortgage Loan has been transferred to a REMIC, 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 if in the Servicer's reasonable and prudent
determination such waiver, modification, postponement or indulgence is not
materially adverse to the Owner, provided, however, the Servicer shall not make
any future advances, other than Servicing Advances with respect to a Mortgage
Loan. The Servicer shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate, defer or forgive the
payment of principal (except for actual payments of principal), reduce or
increase the outstanding principal balance, or change the final maturity date on
such Mortgage Loan, unless the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the Servicer, imminent. In
the event that no default exists or is imminent, the Servicer shall request
written consent from the Owner to permit such a modification and the Owner shall
provide written consent or notify the Servicer of its objection to such
modification within three (3) Business Days of its receipt of the Servicer's
request. In the event of any such modification which permits the deferral of
interest or principal payments on any Mortgage Loan, the Servicer 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 5.03, 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 Servicer shall be entitled to
reimbursement for such advances to the same extent as for all other advances
made pursuant to Section 5.03. Without limiting the generality of the foregoing,
the Servicer shall continue, and is hereby authorized and empowered, to execute
and deliver on behalf of itself and the Owner, 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 Servicer, the Owner
shall furnish the Servicer, within five (5) Business Days of Servicer's request,
any powers of attorney and other documents necessary or appropriate to enable
the Servicer to carry out its servicing and administrative duties under this
Agreement.
The Servicer is authorized and empowered by the Owner, in its own
name, when the Servicer believes it appropriate in its reasonable judgment to
register any Mortgage Loan on the MERS System, or cause the removal from MERS
registration of any Mortgage Loan on the MERS System, to execute and deliver, on
behalf of the Owner, 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 Owner and its successors and assigns.
In servicing and administering the Mortgage Loans, the Servicer
shall employ procedures (including collection procedures) and exercise the same
care that it customarily employs and exercises in servicing and administering
similar mortgage loans for similar investors, giving due consideration to
Accepted Servicing Practices where such practices do not conflict with the
requirements of this Agreement, and the Owner's reliance on the Servicer.
The Servicer shall cause to be maintained for each Cooperative Loan
a copy of the financing statements and shall file and such financing statements
and continuation statements as necessary, in accordance with the Uniform
Commercial Code applicable in the jurisdiction in which the related Cooperative
Apartment is located, to perfect and protect the security interest and lien of
the Owner.
The Servicer may waive any Prepayment Charge provided: (i) the
enforceability thereof shall have been limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors' rights
generally, (ii) the enforcement thereof is illegal, or any local, state or
federal agency has threatened legal action if the Prepayment Charge is enforced,
(iii) the mortgage debt has been accelerated in connection with a foreclosure or
other involuntary payment or (iv) such waiver is standard and customary in
servicing similar Mortgage Loans and relates to a default or a reasonably
foreseeable default and would, in the reasonable judgment of the Servicer,
maximize recovery of total proceeds taking into account the value of such
Prepayment Charge and the related Mortgage Loan. If a Prepayment Charge is
waived, but does not meet the standards described above, then the Servicer is
required to pay the amount of such waived Prepayment Charge by remitting such
amount to the Owner by the Remittance Date.
Section 4.02 Liquidation of Mortgage Loans. In the event that any
payment due under any Mortgage Loan and not postponed pursuant to Section 4.01
is not paid when the same becomes due and payable, or in the event the Mortgagor
fails to perform any other covenant or obligation under the Mortgage Loan and
such failure continues beyond any applicable grace period, the Servicer shall
take such action as (1) the Servicer would take under similar circumstances with
respect to a similar mortgage loan held for its own account for investment, (2)
shall be consistent with Accepted Servicing Practices, (3) the Servicer shall
determine prudently to be in the best interest of Owner, and (4) is consistent
with any related PMI Policy or LPMI Policy or any other primary mortgage
guaranty insurance policies obtained and paid for by the Owner. In the event
that any payment due under any Mortgage Loan is not postponed pursuant to
Section 4.01 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 Servicer shall commence foreclosure proceedings. In such connection,
the Servicer shall from its own funds make all necessary and proper Servicing
Advances, provided, however, that the Servicer 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 Owner 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 4.05) 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 Servicer has reasonable cause to believe that a Mortgaged Property
is contaminated by hazardous or toxic substances or wastes, or if the Owner
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 Owner.
Upon completion of the inspection or review, the Servicer shall promptly provide
the Owner with a written report of the environmental inspection.
After reviewing the environmental inspection report, the Owner shall
determine how the Servicer 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 Owner directs the Servicer to proceed with foreclosure or acceptance
of a deed in lieu of foreclosure, the Servicer shall be reimbursed for all
reasonable costs associated with such foreclosure or acceptance of a deed in
lieu of foreclosure and any related environmental clean up costs, as applicable,
from the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Servicer, the Servicer shall be entitled to
be reimbursed from amounts in the Custodial Account pursuant to Section 4.05
hereof. In the event the Owner directs the Servicer not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Servicer shall
be reimbursed for all Servicing Advances made with respect to the related
Mortgaged Property from the Custodial Account pursuant to Section 4.05 hereof.
Section 4.03 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 shall proceed diligently to collect all payments due under
each of the Mortgage Loans when the same shall become due and payable and shall
take special care in ascertaining and estimating Escrow Payments and all other
charges that will become due and payable with respect to the Mortgage 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.
Section 4.04 Establishment of and Deposits to Custodial Account. The
Servicer shall segregate and hold all funds collected and received in connection
with 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 Owner and/or subsequent Owners of Mortgage Loans, and various
Mortgagors - P & I." The Custodial Account shall be established with a Qualified
Depository. Upon request of the Owner and within ten (10) days thereof, the
Servicer shall provide the Owner with written confirmation of the existence of
such Custodial Account in the form attached hereto as Exhibit E. 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
Servicer in accordance with Section 4.05.
The Servicer shall deposit in a mortgage clearing account on a daily
basis, and in the Custodial Account within two (2) Business Days of Servicer's
receipt, and retain therein, the following collections received by the Servicer
and any other amounts required to be deposited by the Servicer pursuant to this
Agreement after the Cut-off Date, or received by the Servicer prior to the
Cut-off Date but allocable to a period subsequent thereto, other than payments
of principal and interest due on or before the Cut-off Date, as follows:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 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;
(v) all Condemnation Proceeds which are not applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 4.14;
(vi) any amount required to be deposited in the Custodial Account
pursuant to Sections 4.01, 6.01 or 6.02;
(vii) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Section 5.04;
(viii) with respect to each Principal Prepayment an amount (to be
paid by the Servicer 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;
(ix) any amounts required to be deposited by the Servicer pursuant
to Section 4.11 in connection with the deductible clause in any blanket
hazard insurance policy; and
(x) 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 6.01, need not be deposited
by the Servicer into the Custodial Account. Any interest paid on funds deposited
in the Custodial Account by the depository institution shall accrue to the
benefit of the Servicer and the Servicer shall be entitled to retain and
withdraw such interest from the Custodial Account pursuant to Section 4.05.
Section 4.05 Permitted Withdrawals From Custodial Account. The
Servicer shall, from time to time, withdraw funds from the Custodial Account for
the following purposes:
(i) to make payments to the Owner in the amounts and in the manner
provided for in Section 5.01;
(ii) to reimburse itself for Monthly Advances of the Servicer's
funds made pursuant to Section 5.03, the Servicer's right to reimburse
itself pursuant to this sub clause (ii) being limited to amounts received
on the related Mortgage Loan which represent late Monthly Payments,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and such
other amounts as may be collected by the Servicer respecting which any
such advance was made, it being understood that, in the case of any such
reimbursement, the Servicer's right thereto shall be prior to the rights
of Owner, and all other amounts required to be paid to the Owner with
respect to such Mortgage Loan;
(iii) to reimburse itself for unreimbursed Servicing Advances, and
for any unpaid Servicing Fees, the Servicer's right to reimburse itself
pursuant to this subclause (iii) 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 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 Owner;
(iv) reserved;
(v) to pay itself as additional servicing compensation any interest
on funds deposited in the Custodial Account;
(vi) to reimburse itself for expenses incurred and reimbursable to
it pursuant to Section 8.01;
(vii) 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
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;
(viii) to reimburse itself for any Servicing Advances or REO
expenses after liquidation of the Mortgaged Property not otherwise
reimbursed above;
(ix) to remove funds inadvertently placed in the Custodial Account
by the Servicer; and
(x) 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 Servicer, in addition to it withdrawal rights stated above,
shall withdraw all interest earned on funds on deposit in the Custodial Account
except for those amounts which, pursuant to Section 5.01, the Servicer is not
obligated to remit on such Remittance Date. The Servicer may use such withdrawn
funds only for the purposes described in this Section 4.05.
Section 4.06 Establishment of and Deposits to Escrow Account. The
Servicer shall segregate and hold all funds collected and received pursuant to a
Mortgage Loan constituting Escrow Payments separate and apart from any of its
own funds and general assets and shall establish and maintain one or more Escrow
Accounts, in the form of time deposit or demand accounts, titled, "Xxxxx Fargo
Bank, N.A., in trust for the Owner and/or subsequent Owners of Residential
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 Owner and within ten (10)
days thereof, the Servicer shall provide the Owner with written confirmation of
the existence of such Escrow Account in the form attached hereto as Exhibit F.
Funds deposited in the Escrow Account may be drawn on by the Servicer in
accordance with Section 4.07.
The Servicer shall deposit in the Escrow Account or Accounts within
two (2) Business Days of Servicer's receipt, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage Loans,
for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement;
(ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or repair of any
Mortgaged Property; and
(iii) all payments on account of Buydown Funds.
The Servicer shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 4.07. The Servicer shall be entitled to retain any interest paid on
funds deposited in the Escrow Account by the depository institution, other than
interest on escrowed funds required by law to be paid to the Mortgagor. To the
extent required by law, the Servicer shall pay interest on escrowed funds to the
Mortgagor notwithstanding that the Escrow Account may be non-interest bearing or
that interest paid thereon is insufficient for such purposes.
Section 4.07 Permitted Withdrawals From Escrow Account. Withdrawals
from the Escrow Account or Accounts may be made by the Servicer only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments for
the related Mortgage;
(ii) to reimburse the Servicer for any Servicing Advances made by
the Servicer pursuant to Section 4.08 with respect to a related Mortgage
Loan, but only from amounts received on the related Mortgage Loan which
represent late collections of Escrow Payments thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess of
the amounts required under the terms of the related Mortgage Loan;
(iv) for transfer to the Custodial Account for application to reduce
the principal balance of the Mortgage Loan in accordance with the terms of
the related Mortgage and Mortgage Note;
(v) for application to the restoration or repair of the Mortgaged
Property in accordance with the procedures outlined in Section 4.14;
(vi) to pay to the Servicer, or any Mortgagor to the extent required
by law, any interest paid on the funds deposited in the Escrow Account;
(vii) to remove funds inadvertently placed in the Escrow Account by
the Servicer;
(viii) to remit to Owner payments on account of Buydown Funds as
applicable; and
(ix) to clear and terminate the Escrow Account on the termination of
this Agreement.
Section 4.08 Payment of Taxes, Insurance and Other Charges. With
respect to each Mortgage Loan, the Servicer shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates, sewer
rents, and other charges which are or may become a lien upon the Mortgaged
Property and the status of PMI Policy or LPMI Policy premiums 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 Servicer in amounts sufficient for such
purposes, as allowed under the terms of the Mortgage. The Servicer assumes full
responsibility for the timely payment of all such bills and shall effect timely
payment of all such charges irrespective of each Mortgagor's faithful
performance in the payment of same or the making of the Escrow Payments, and the
Servicer shall make advances from its own funds to effect such payments.
Section 4.09 Protection of Accounts. The Servicer may transfer the
Custodial Account or the Escrow Account to a different Qualified Depository from
time to time, provided that the Servicer shall give notice to the Owner of such
transfer.
Section 4.10 Maintenance of Hazard Insurance. The Servicer 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 greater of: (i) 100% of the
insurable value on a replacement cost basis of the improvements on the related
Mortgaged Property and (ii) the greater of (a) the outstanding principal balance
of the Mortgage Loan and (b) an amount such that the proceeds of such insurance
shall be sufficient to prevent the application to the Mortgagor or the loss
payee of any coinsurance clause under the policy. 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 Servicer
shall notify the Owner 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 the related Mortgaged Property is located in an area identified
by the Flood Emergency Management Agency as having special flood hazards (and
such flood insurance has been made available) the Servicer shall cause to be
maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration 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 at any time during the term of the
Mortgage Loan, the Servicer determines in accordance with applicable law and
pursuant to the Xxxxxx Mae Guides that a Mortgaged Property is located in a
special flood hazard area and is not covered by flood insurance or is covered in
an amount less than the amount required by the Flood Disaster Protection Act of
1973, as amended, the Servicer shall notify the related Mortgagor that the
Mortgagor must obtain such flood insurance coverage, and if said Mortgagor fails
to obtain the required flood insurance coverage within 45 days after such
notification, the Servicer shall immediately force place the required flood
insurance on the Mortgagor's behalf.
If a Mortgage is secured by a unit in a condominium project, the
Servicer shall use reasonable efforts to 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 Xxx or
Xxxxxxx Mac requirements, secure from the owner's association its agreement to
notify the Servicer promptly of any change in the insurance coverage or of any
condemnation or casualty loss that may have a material effect on the value of
the Mortgaged Property as security.
In the event that the Owner or the Servicer shall determine that the
Mortgaged Property should be insured against loss or damage by hazards and risks
not covered by the insurance required to be maintained by the Mortgagor pursuant
to the terms of the Mortgage, the Servicer shall communicate and consult with
the Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the required amount of coverage for the Mortgaged Property
and if the Mortgagor does not obtain such coverage, the Servicer shall
immediately force place the required coverage on the Mortgagor's behalf.
All policies required hereunder shall name the Servicer 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 Servicer shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Servicer 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 Servicer shall determine that such policies provide sufficient
risk coverage and amounts, that they insure the property owner, and that they
properly describe the property address.
Pursuant to Section 4.04, 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 related Mortgaged
Property, or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor, in accordance with the Servicer's normal servicing
procedures as specified in Section 4.14) shall be deposited in the Custodial
Account subject to withdrawal pursuant to Section 4.05.
Section 4.11 Maintenance of Mortgage Impairment Insurance. In the
event that the Servicer shall obtain and maintain a blanket policy insuring
against losses arising from fire, flood 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 Servicer shall prepare and make any claims on the blanket policy as
deemed necessary by the Servicer in accordance with Accepted Servicing
Practices. Any amounts collected by the Servicer under any such policy relating
to a Mortgage Loan shall be deposited in the Custodial Account subject to
withdrawal pursuant to Section 4.05. 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
Servicer 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 Servicer's funds, without
reimbursement therefore. Upon request of the Owner, the Servicer shall cause to
be delivered to such Owner a certificate of insurance 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 Owner.
Section 4.12 Maintenance of Fidelity Bond and Errors and Omissions
Insurance. The Servicer shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other Persons acting in any
capacity requiring such Persons to handle funds, money, documents or papers
relating to the Mortgage Loans ("Servicer Employees"). Any such Fidelity Bond
and Errors and Omissions Insurance Policy shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Servicer against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such Servicer Employees. Such Fidelity Bond and Errors and
Omissions Insurance Policy also shall 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 Section 4.12 requiring such Fidelity Bond and Errors and
Omissions Insurance Policy shall diminish or relieve the Servicer from its
duties and obligations as set forth in this Agreement. The minimum coverage
under any such Fidelity Bond and Errors and Omissions Insurance Policy shall be
acceptable to Xxxxxx Mae or Xxxxxxx Mac. Upon the request of the Owner, the
Servicer shall cause to be delivered to the Owner a certified true copy of such
Fidelity Bond and Errors and Omissions Insurance Policy and a statement from the
surety and the insurer that such Fidelity Bond and Errors and Omissions
Insurance Policy shall in no event be terminated or materially modified without
30 days' prior written notice to the Owner.
Section 4.13 Inspections. If any Mortgage Loan is more than 60 days
delinquent, the Servicer immediately shall inspect the Mortgaged Property and
shall conduct subsequent inspections in accordance with Accepted Servicing
Practices or as may be required by the primary mortgage guaranty insurer. The
Servicer shall keep a record of each such inspection and, upon request, shall
provide the Owner with such information.
Section 4.14 Restoration of Mortgaged Property. The Servicer need
not obtain the approval of the Owner 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 $20,000, at a minimum the Servicer
shall comply with the following conditions in connection with any such release
of Insurance Proceeds or Condemnation Proceeds:
(i) the Servicer shall receive satisfactory independent verification
of completion of repairs and issuance of any required approvals with
respect thereto;
(ii) the Servicer shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens;
(iii) the Servicer shall verify that the Mortgage Loan is not in
default; and
(iv) pending repairs or restoration, the Servicer shall place the
Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
If the Owner is named as an additional loss payee, the Servicer is
hereby empowered to endorse any loss draft issued in respect of such a claim in
the name of the Owner.
Section 4.15 Maintenance of PMI Policy or LPMI Policy; Claims. With
respect to each Mortgage Loan with an LTV in excess of 80% at the time of
origination, the Servicer shall, without any cost to the Owner maintain or cause
the Mortgagor to maintain in full force and effect a PMI Policy or LPMI Policy
insuring a portion of the unpaid principal balance of the Mortgage Loan as to
payment defaults. If the Mortgage Loan is insured by a PMI Policy for which the
Mortgagor pays all premiums, the coverage will remain in place until (i) the LTV
decreases to 78% or (ii) the PMI Policy is otherwise terminated pursuant to the
Homeowners Protection Act of 1998, 12 USC ss.4901, et seq. In the event that
such PMI Policy or LPMI Policy shall be terminated other than as required by
law, the Servicer shall obtain from another Qualified Insurer a comparable
replacement policy, with a total coverage equal to the remaining coverage of
such terminated PMI Policy or LPMI Policy. If the insurer shall cease to be a
Qualified Insurer, the Servicer shall determine whether recoveries under the PMI
Policy or 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
PMI Policy or LPMI Policy for such reason. If the Servicer determines that
recoveries are so jeopardized, it shall notify the Owner and the Mortgagor, if
required, and obtain from another Qualified Insurer a replacement insurance
policy. The Servicer shall not take any action which would result in noncoverage
under any applicable PMI Policy or 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
pursuant to Section 6.01, the Servicer shall promptly notify the insurer under
the related PMI Policy or LPMI Policy, if any, of such assumption or
substitution of liability in accordance with the terms of such PMI Policy or
LPMI Policy and shall take all actions which may be required by the insurer as a
condition to the continuation of coverage under the PMI Policy or LPMI Policy.
If such PMI Policy or LPMI Policy is terminated as a result of such assumption
or substitution of liability, the Servicer shall obtain a replacement PMI Policy
or LPMI Policy as provided above.
In connection with its activities as servicer, the Servicer agrees
to prepare and present, on behalf of itself and the Owner, claims to the insurer
under any PMI Policy or LPMI Policy or any other primary mortgage guaranty
insurance policies obtained and paid for by the Owner, in a timely fashion in
accordance with the terms of such PMI Policy or LPMI Policy and, in this regard,
to take such action as shall be necessary to permit recovery under any PMI
Policy or LPMI Policy or any other primary mortgage guaranty insurance policies
obtained and paid for by the Owner respecting a defaulted Mortgage Loan.
Pursuant to Section 4.04, any amounts collected by the Servicer under any PMI
Policy or LPMI Policy shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 4.05.
Section 4.16 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 Owner's designee (and not in the name of the Owner), or in the
event the Owner's designee 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 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
Owner shall acknowledge in writing that such title is being held as nominee for
the Owner.
The Servicer shall manage, conserve, protect and operate each REO
Property for the Owner solely for the purpose of its prompt disposition and
sale. The Servicer, either itself or through an agent selected by the Servicer,
shall manage, conserve, protect and operate the REO Property in the same manner
that it manages, conserves, protects and operates other foreclosed property for
its own account, and in the same manner that similar property in the same
locality as the REO Property is managed. The Servicer shall attempt to sell the
same on such terms and conditions as the Servicer deems to be in the best
interest of the Owner.
The Servicer 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 (1) year after title has been taken to such REO Property (excluding
any applicable redemption periods), 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 Servicer determines, and gives an appropriate
notice to the Owner to such effect, that a longer period is necessary for the
orderly liquidation of such REO Property. If a period longer than one (1) year
is permitted under the foregoing sentence, (i) the Servicer shall report monthly
to the Owner as to the progress being made in selling such REO Property and (ii)
if a purchase money mortgage is taken in the name of the Servicer, as mortgagee,
in connection with such sale, such purchase money mortgage shall not be held
pursuant to this Agreement.
The Servicer 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.
The disposition of REO Property shall be carried out by the Servicer
at such price, and upon such terms and conditions, as the Servicer deems to be
in the best interests of the Owner. 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 Servicer shall
collect the related REO Disposition Fee, reimburse itself for any related
unreimbursed Servicing Advances and unpaid Servicing Fees. On the Remittance
Date immediately following the receipt of such sale proceeds, the net cash
proceeds of such sale remaining in the Custodial Account shall be distributed to
the Owner.
The Servicer shall withdraw from 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 Servicer, or the Servicer
itself. The Servicer shall make monthly distributions on each Remittance Date to
the Owner of the net cash flow from the REO Property (which shall equal the
revenues from such REO Property net of the expenses described in this Section
4.16 and of any reserves reasonably required from time to time to be maintained
to satisfy anticipated liabilities for such expenses).
Section 4.17 Real Estate Owned Reports. Together with the statement
furnished pursuant to Section 5.02, the Servicer shall furnish to the Owner 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 Servicer's efforts in connection with the sale of such REO Property and any
rental of such REO Property incidental to the sale thereof for the previous
month. That statement shall be accompanied by such other information reasonably
available to the Servicer and as the Owner shall reasonably request.
Section 4.18 Liquidation Reports. Upon the foreclosure sale of any
Mortgaged Property or the acquisition thereof by the Owner pursuant to a deed in
lieu of foreclosure, the Servicer shall submit to the Owner a liquidation report
with respect to such Mortgaged Property.
Section 4.19 Reports of Foreclosures and Abandonments of Mortgaged
Property. Following the foreclosure sale or abandonment of any Mortgaged
Property, the Servicer shall report such foreclosure or abandonment as required
pursuant to Section 6050J of the Code. The Servicer 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 4.20 Application of Buydown Funds. With respect to each
Buydown Mortgage Loan, the Servicer shall have deposited into the Escrow
Account, no later than the last day of the month, Buydown Funds in an amount
equal to the aggregate undiscounted amount of payments that, when added to the
amount the Mortgagor on such Mortgage Loan is obligated to pay on all Due Dates
in accordance with the terms of the Buydown Agreement, is equal to the full
scheduled Monthly Payments which are required to be paid by the Mortgagor under
the terms of the related Mortgage Note (without regard to the related Buydown
Agreement as if the Mortgage Loan were not subject to the terms of the Buydown
Agreement). With respect to each Buydown Mortgage Loan, the Servicer will
distribute to the Owner on each Remittance Date an amount of Buydown Funds equal
to the amount that, when added to the amount required to be paid on such date by
the related Mortgagor, pursuant to and in accordance with the related Buydown
Agreement, equals the full Monthly Payment that would otherwise be required to
be paid on such Mortgage Loan by the related Mortgagor under the terms of the
related Mortgage Note (as if the Mortgage Loan were not a Buydown Mortgage Loan
and without regard to the related Buydown Agreement).
If the Mortgagor on a Buydown Mortgage Loan defaults on such
Mortgage Loan during the Buydown Period and the Mortgaged Property securing such
Buydown Mortgage Loan is sold in the liquidation thereof (either by the Servicer
or the insurer under any related Primary Insurance Policy) the Servicer shall,
on the Remittance Date following the date upon which Liquidation Proceeds or REO
Disposition proceeds are received with respect to any such Buydown Mortgage
Loan, distribute to the Owner all remaining Buydown Funds for such Mortgage Loan
then remaining in the Escrow Account. Pursuant to the terms of each Buydown
Agreement, any amounts distributed to the Owner in accordance with the preceding
sentence will be applied to reduce the outstanding principal balance of the
related Buydown Mortgage Loan. If a Mortgagor on a Buydown Mortgage Loan prepays
such Mortgage Loan in its entirety during the related Buydown Period, the
Servicer shall be required to withdraw from the Escrow Account any Buydown Funds
remaining in the Escrow Account with respect to such Buydown Mortgage Loan in
accordance with the related Buydown Agreement. If a Principal Prepayment by a
Mortgagor on a Buydown Mortgage Loan during the related Buydown Period, together
with any Buydown Funds then remaining in the Escrow Account related to such
Buydown Mortgage Loan, would result in a Principal Prepayment of the entire
unpaid principal balance of the Buydown Mortgage Loan, the Servicer shall
distribute to the Owner on the Remittance Date occurring in the month
immediately succeeding the month in which such Principal Prepayment is received,
all Buydown Funds related to such Mortgage Loan so remaining in the Escrow
Account, together with any amounts required to be deposited into the Custodial
Account.
Section 4.21 Notification of Adjustments. With respect to each
adjustable rate Mortgage Loan, the Servicer shall adjust the Mortgage Interest
Rate on the related Adjustment Date in compliance with the requirements of
applicable law and the related Mortgage and Mortgage Note. The Servicer shall
execute and deliver any and all necessary notices required under applicable law
and the terms of the related Mortgage Note and Mortgage regarding the Mortgage
Interest Rate adjustments. Upon the discovery by the Servicer or the receipt of
notice from the Owner that the Servicer has failed to adjust a Mortgage Interest
Rate in accordance with the terms of the related Mortgage Note, the Servicer
shall immediately deposit in the Custodial Account from its own funds the amount
of any interest loss or deferral caused the Owner thereby.
Section 4.22 Confidentiality/Protection of Customer Information.
Each party agrees that it shall comply with all applicable laws and regulations
regarding the privacy or security of Customer Information and shall maintain
appropriate administrative, technical and physical safeguards to protect the
security, confidentiality and integrity of Customer Information, including
maintaining security measures designed to meet the objectives of the Interagency
Guidelines Establishing Standards for Safeguarding Customer Information, 66 Fed.
Reg. 8616 (the "Interagency Guidelines"). For purposes of this Section, the term
"Customer Information" shall have the meaning assigned to it in the Interagency
Guidelines.
Section 4.23 Due Dates other than the First Day of the Month.
Mortgage Loans having Due Dates other than the first day of a month shall be
accounted for as described in this Section 4.23. Any payment due on a day other
than the first day of each month shall be considered due on the first day of the
month following the month in which that payment is due as if such payment were
due on the first day of said month. For example, a payment due on January 15
shall be considered to be due on February 1 of said month. Any payment collected
on a Mortgage Loan after the Cut-off Date shall be deposited in the Custodial
Account. For Mortgage Loans with Due Dates on the first day of a month, deposits
to the Custodial Account begin with the payment due on the first of the month
following the Cut-off Date.
Section 4.24 Fair Credit Reporting Act. The Servicer, 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, on a monthly basis.
Section 4.25 Use of Subservicers and Subcontractors. The Servicer
shall not hire or otherwise utilize the services of any Subservicer to fulfill
any of the obligations of the Servicer under this Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions of
paragraph (a) of this Section 4.25. 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 under this Agreement or any Reconstitution
Agreement unless the Servicer complies with the provisions of paragraph (b) of
this Section 4.25.
(a) It shall not be necessary for the Servicer to seek the consent
of the Owner, any Master Servicer 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 Owner and any Depositor to comply
with the provisions of this Section 4.25 and with Sections 6.04, 6.06 and 9.01
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
Section 9.01 of this Agreement. The Servicer shall be responsible for obtaining
from each Subservicer and delivering to the Owner and any Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
6.04 and any assessment of compliance and attestation required to be delivered
by such Subservicer under Section 6.06 and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 6.06 as and when required to be delivered.
(b) It shall not be necessary for the Servicer to seek the consent
of the Owner, any Master Servicer or any Depositor to the utilization of any
Subcontractor. The Servicer shall promptly upon request provide to the Owner,
any Master Servicer 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 Owner, such Master Servicer 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 Owner, any Master
Servicer and any Depositor to comply with the provisions of Sections 6.06 and
9.01 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 Owner, any Master Servicer and any Depositor
any assessment of compliance and attestation required to be delivered by such
Subcontractor under Section 6.06, in each case as and when required to be
delivered.
ARTICLE V
PAYMENTS TO OWNER
Section 5.01 Remittances. On each Remittance Date the Servicer shall
remit by wire transfer of immediately available funds to the Owner: (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 4.05), plus (b) all amounts, if any, which the
Servicer is obligated to distribute pursuant to Section 5.03, 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 4.04(viii); 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, and minus (e) any amounts
attributable to Buydown Funds being held in the Custodial Account, which amounts
shall be remitted on the Remittance Date next succeeding the Due Period for such
amounts.
All cash flows from Prepayment Charges shall be passed through to
the Owner and shall not be waived by the Servicer, except pursuant to Section
4.01.
With respect to any remittance received by the Owner after the
second Business Day following the Business Day on which such payment was due,
the Servicer shall pay to the Owner 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 (3) 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 Servicer 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 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 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.
Section 5.02 Statements to Owner. Not later than the Remittance
Date, the Servicer shall furnish to the Owner, a monthly remittance advice, with
a trial balance report attached thereto, as to the remittance period ending on
the last day of the preceding month, in a form to be agreed upon by the Owner
and Servicer.
Section 5.03 Monthly Advances by Servicer.
On the Business Day immediately preceding each Remittance Date, the
Servicer 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 or which were deferred pursuant
to Section 4.01. 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 Remittance Date
shall be less than payments to the Owner required to be made on such Remittance
Date. The Servicer's obligation to make such Monthly Advances as to any Mortgage
Loan will continue through the earlier of: (i) the last Monthly Payment due
prior to the payment in full of the Mortgage Loan or (ii) the Remittance Date
prior to the date the Mortgage Loan is converted to REO Property, provided
however, that if requested in connection with a securitization, the Servicer
shall be obligated to make such advances through the last Remittance Date prior
to the Remittance Date for the distribution of all Liquidation Proceeds and
other payments or recoveries (including REO Disposition Proceeds, Insurance
Proceeds and Condemnation Proceeds) with respect to the Mortgage Loan; provided,
however, that such obligation shall cease if the Servicer determines, in its
sole reasonable opinion, that advances with respect to such Mortgage Loan are
non-recoverable by the Servicer from Liquidation Proceeds, REO Disposition
Proceeds, Insurance Proceeds, Condemnation Proceeds, or otherwise with respect
to a particular Mortgage Loan. In the event that the Servicer determines that
any such advances are non-recoverable, the Servicer shall provide the Owner with
a certificate signed by two officers of the Servicer evidencing such
determination.
Section 5.04
Repurchase. The Servicer shall cooperate with the Owner in
facilitating the repurchase of any Mortgage Loan by the Seller. Upon receipt by
the Servicer of notice from the Owner of a breach by the Seller of a
representation or warranty contained in any agreement between the Owner and the
Seller, or a request by the Owner for the Seller to repurchase any Mortgage
Loan, the Servicer shall, at the direction of the Owner, use its best efforts to
cure and correct any such breach related to such deficiencies of the related
Mortgage Loans.
At the time of repurchase, the Owner or the Custodian, as
applicable, and the Servicer shall arrange for the reassignment of the
repurchased Mortgage Loan to the Seller according to the Owner's instructions
and the delivery of any documents held by the Servicer with respect to the
repurchased Mortgage Loan. The Servicer will facilitate the remittance of
repurchase funds between the Seller and the Owner, but shall not be required to
advance any funds for such repurchase and shall be reimbursed for any expenses
incurred due to such repurchase.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 Transfers of Mortgaged Property. The Servicer shall use
its best efforts to enforce any "due-on-sale" provision contained in any
Mortgage or Mortgage Note and to deny assumption by the Person to whom the
Mortgaged Property has been or is about to be sold whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
liable on the Mortgage and the Mortgage Note. When the Mortgaged Property has
been conveyed by the Mortgagor, the Servicer shall, to the extent it has
knowledge of such conveyance, exercise its rights to accelerate the maturity of
such Mortgage Loan under the "due-on-sale" clause applicable thereto, provided,
however, that the Servicer shall not exercise such rights if prohibited by law
from doing so or if the exercise of such rights would impair or threaten to
impair any recovery under the related PMI Policy or LPMI Policy, if any.
If the Servicer reasonably believes it is unable under applicable
law to enforce such "due-on-sale" clause, the Servicer shall enter into (i) an
assumption and modification agreement with the person to whom such property has
been conveyed, pursuant to which such person becomes liable under the Mortgage
Note and the original Mortgagor remains liable thereon or (ii) in the event the
Servicer is unable under applicable law to require that the original Mortgagor
remain liable under the Mortgage Note and the Servicer 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 Servicer for entering into an assumption
agreement the fee will be retained by the Servicer 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 Owner's consent.
To the extent that any Mortgage Loan is assumable, the Servicer
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 worthiness of the proposed
transferee does not meet such underwriting criteria, the Servicer diligently
shall, to the extent permitted by the Mortgage or the Mortgage Note and by
applicable law, accelerate the maturity of the Mortgage Loan.
Section 6.02 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 shall notify the Owner in the monthly
remittance advice as provided in Section 5.02, and may request the release of
any Mortgage Loan Documents. If such Mortgage Loan is a MERS Mortgage Loan, the
Servicer 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 Owner, any
and all instruments of satisfaction or cancellation or of partial or full
release.
If the Servicer satisfies or releases a Mortgage without first
having obtained payment in full of the indebtedness secured by the Mortgage
(other than as a result of a modification of the Mortgage Loan or a liquidation
of the Mortgaged Property pursuant to the terms of this Agreement) or should the
Servicer otherwise prejudice any rights the Owner may have under the mortgage
instruments, upon written demand of the Owner, the Servicer shall deposit in the
Custodial Account the entire outstanding principal balance, plus all accrued
interest on such Mortgage Loan, on the day preceding the Remittance Date in the
month following the date of such release. The Servicer shall maintain the
Fidelity Bond and Errors and Omissions Insurance Policy as provided for in
Section 4.12 insuring the Servicer against any loss it may sustain with respect
to any Mortgage Loan not satisfied in accordance with the procedures set forth
herein.
Section 6.03 Servicing Compensation. As compensation for its
services hereunder, the Servicer shall be entitled to withdraw from the
Custodial Account the amount of its Servicing Fee. The Servicing Fee shall be
payable monthly and shall be computed on the basis of the unpaid principal
balance and for the period respecting which any related interest payment on a
Mortgage Loan is received. The obligation of the Owner to pay the Servicing Fee
is limited to, and payable solely from, the interest portion (including
recoveries with respect to interest from Liquidation Proceeds, to the extent
permitted by Section 4.05) 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 and other
ancillary fees 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 thereof except as specifically
provided for herein.
Section 6.04 Annual Statements as to Compliance. On or before March
1 of each calendar year, commencing in 2007, the Servicer shall deliver to the
Owner or any Master Servicer or Depositor a statement of compliance addressed to
the Owner, any Master Servicer and such Depositor and signed by an authorized
officer of the Servicer, to the effect that (a) 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 (b) 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.
Section 6.05 Annual Independent Public Accountants' Servicing
Report. Except with respect to Mortgage Loans that are the subject of
Securitization Transactions, on or before March 1st, commencing in 2007, 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 each Owner 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 Owner a copy of a Uniform Single Attestation Program
Report from their independent public accountants on an annual basis, Servicer
shall be considered to have fulfilled its obligations under this Section 6.05.
Section 6.06 Report on Assessment of Compliance and Attestation.
With respect to any Mortgage Loans that are the subject of a Securitization
Transaction on or before March 1 of each calendar year, commencing in 2007, the
Servicer shall:
(i) deliver to the Owner, any Master Servicer or any Depositor a
report (in form and substance reasonably satisfactory to the Owner, such
Master Servicer 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 addressed to the
Owner, such Master Servicer and such Depositor and signed by an authorized
officer of the Servicer and shall address each of the "Applicable
Servicing Criteria" specified substantially on Exhibit H hereto (or those
Servicing Criteria otherwise mutually agreed to by the Owner and the
Servicer in response to evolving interpretations of Regulation AB);
(ii) deliver to the Owner, any Master Servicer or any Depositor a
report of a registered public accounting firm reasonably acceptable to the
Owner, such Master Servicer and such Depositor that attests to, and
reports on, the assessment of the 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 Section 4.25(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, to
deliver to the Owner, any Master Servicer and any Depositor an assessment
of compliance and accountants' attestation as and when provided in
paragraphs (i) and (ii) of this Section 6.06; and
(iv) if requested by the Owner, the Master Servicer or Depositor,
deliver, and cause each Subservicer and each Subcontractor described in
clause (iii) to deliver to the Owner, any Master Servicer, 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 I.
Each assessment of compliance provided by a Subservicer pursuant to
Section 6.06(i) shall address each of the Servicing Criteria specified
substantially in the form of Exhibit H hereto delivered to the Owner
concurrently with the execution of this Agreement or, in the case of a
Subservicer subsequently appointed as such, on or prior to the date of such
appointment. An assessment of compliance provided by a Subcontractor pursuant to
Section 6.06(iii) need not address any elements of the Servicing Criteria other
than those specified by the Servicer pursuant to Section 4.25.
The Servicer acknowledges that the parties identified in clause (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 Owner, any Master Servicer or any Depositor will request delivery of
a certification under clause (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.
Section 6.07 Remedies. (i) Any failure by the Servicer, any
Subservicer or any Subcontractor to deliver any information, report,
certification, accountants' letter or other material when and as required under
Article IX, Section 4.25, Section 6.04, Section 6.05 or Section 6.06, or any
breach by the Servicer of a representation or warranty set forth in Section
9.01(j)(i), or in a writing furnished pursuant to Section 9.01(j)(ii) 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 Section 9.01(j)(ii) to the extent made as of a date
subsequent to such closing date, shall, except as provided in sub-clause (ii) of
this Section, 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 Owner, any
Master Servicer or any 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 Servicer, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Section 6.04, Section 6.05
or Section 6.06, including (except as provided below) any failure by the
Servicer to identify any Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB, which
continues unremedied for ten (10) 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 Owner, any Master Servicer or Depositor,
as applicable, in its sole discretion to terminate the rights and
obligations of the 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 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.
Neither the Owner nor any Depositor shall be entitled to terminate
the rights and obligations of the Servicer pursuant to this subparagraph
(ii) if a failure of 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 Owner (or any
designee of the Owner, including the Master Servicer) and any Depositor,
as applicable, for all reasonable expenses incurred by the Owner (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 Owner 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.
Section 6.08 Right to Examine Servicer Records. The Owner, or its
designee, shall have the right to examine and audit any and all of the books,
records, or other information of the Servicer, whether held by the Servicer or
by another on its behalf, with respect to or concerning this Agreement or the
Mortgage Loans, during business hours or at such other times as may be
reasonable under applicable circumstances, upon reasonable advance notice. The
Owner shall pay its own expenses associated with such examination.
Section 6.09 Compliance with REMIC Provisions. If a REMIC election
has been made with respect to the arrangement under which any of the Mortgage
Loans and REO Property are held, the Servicer shall not take any action, cause
the REMIC to take any action or fail to take (or fail to cause to be taken) 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 tax upon the REMIC (including but not limited to the tax on
"prohibited transactions" as defined in Section 860F(a) (2) of the Code and the
tax on "contributions" to a REMIC set forth in Section 860G(d) of the Code)
unless the Servicer 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
SERVICER TO COOPERATE
Section 7.01 Provision of Information. During the term of this
Agreement, the Servicer shall furnish to the Owner 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 Owner or any regulatory agency
will be provided at the Owner's expense. All such reports, documents or
information shall be provided by and in accordance with all reasonable
instructions and directions which the Owner may give.
The Servicer shall execute and deliver all such instruments and take
all such action as the Owner may reasonably request from time to time, in order
to effectuate the purposes and to carry out the terms of this Agreement.
Section 7.02 Financial Statements; Servicing Facility. In connection
with marketing the Mortgage Loans, the Owner may make available to a prospective
purchaser a Consolidated Statement of Operations of the Servicer's parent
company for the most recently completed two (2) fiscal years for which such a
statement is available, as well as a Consolidated Statement of Condition at the
end of the last two (2) fiscal years covered by such Consolidated Statement of
Operations. The Servicer, 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 Servicer's parent company (and are available upon request to
members or stockholders of the Servicer or to the public at large).
The Servicer also shall make available to Owner or prospective
purchasers a knowledgeable financial or accounting officer for the purpose of
answering questions respecting recent developments affecting the Servicer or the
financial statements of the Servicer, and to permit any prospective purchaser to
inspect the Servicer's servicing facilities for the purpose of satisfying such
prospective purchaser that the Servicer has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE VIII
THE SERVICER
Section 8.01 Indemnification; Third Party Claims. The Servicer shall
indemnify and hold the Owner and its respective present and former directors,
officers, employees and agents 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 such
parties may sustain in any way (a) related to the failure of the Servicer to
observe and perform any or all of its duties, obligations or agreements
contained in this Agreement, or to service the Mortgage Loans in strict
compliance with the all applicable requirements contained in this Agreement, or
(b) resulting from a breach of the representations and warranties contained in
this Agreement. The Servicer immediately shall notify the Owner if a claim is
made by a third party with respect to this Agreement or the Mortgage Loans,
assume (with the prior written consent of the Owner) 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 Owner in respect of such claim. The Servicer shall follow any
written instructions received from the Owner in connection with such claim. The
Owner promptly shall reimburse the Servicer for all amounts advanced by it
pursuant to this paragraph except when the claim is in any way related to the
Servicer's indemnification pursuant to Section 3.02, or the failure of the
Servicer to service and administer the Mortgage Loans in strict compliance with
the terms of this Agreement.
Section 8.02 Merger or Consolidation of the Servicer. The Servicer
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 Servicer may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Servicer shall be a party, or any Person succeeding to the business of the
Servicer, shall be the successor of the Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, provided,
however, that the successor or surviving Person shall be an institution which is
a Xxxxxx Xxx/Xxxxxxx Mac-approved seller/servicer in good standing. Furthermore,
in the event the Servicer transfers or otherwise disposes of all or
substantially all of its assets to an affiliate of the Servicer, such affiliate
shall satisfy the condition above, and shall also be fully liable to the Owner
for all of the Servicer's obligations and liabilities hereunder.
Section 8.03 Limitation on Liability of Servicer and Others. Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Owner for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, provided, however, that this provision shall not protect the Servicer
or any such Person against any 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 Servicer and any director,
officer, employee or agent of the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Servicer 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 Servicer may, with the consent of the Owner,
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 Servicer shall be entitled to reimbursement from the Owner of the reasonable
legal expenses and costs of such action.
Section 8.04 Limitation on Resignation and Assignment by Servicer.
The Owner has entered into this Agreement with the Servicer and subsequent
purchasers will purchase the Mortgage Loans in reliance upon the independent
status of the Servicer, and the representations as to the adequacy of its
servicing facilities, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance thereof. Therefore, the
Servicer shall neither assign this Agreement or the servicing rights hereunder
or delegate its rights or duties hereunder (other than pursuant to Sections 4.01
and 4.25) or any portion hereof or sell or otherwise dispose of all of its
property or assets without the prior written consent of the Owner, which consent
shall not be unreasonably withheld.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer and the Owner or upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Servicer. Any such
determination permitting the resignation of the Servicer shall be evidenced by
an Opinion of Counsel to such effect delivered to the Owner which Opinion of
Counsel shall be in form and substance acceptable to the Owner. No such
resignation shall become effective until a successor shall have assumed the
Servicer's responsibilities and obligations hereunder in the manner provided in
Section 12.01.
Without in any way limiting the generality of this Section 8.04, in
the event that the Servicer either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its duties hereunder (other than pursuant
to Sections 4.01 and 4.25) or any portion thereof or sell or otherwise dispose
of all or substantially all of its property or assets, without the prior written
consent of the Owner, then the Owner shall have the right to terminate this
Agreement upon notice given as set forth in Section 10.01, without any payment
of any penalty or damages and without any liability whatsoever to the Servicer
or any third party.
ARTICLE IX
SECURITIZATION TRANSACTIONS
Section 9.01 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Securitization Transaction. The Owner and the Servicer agree
that with respect to some or all of the Mortgage Loans, the Owner, at its sole
option, may effect Whole Loan Transfers or Securitization Transactions,
retaining the Servicer as the servicer thereof or subservicer if a master
servicer is employed, or as applicable the "seller/servicer." On the
Reconstitution Date, the Mortgage Loans transferred may cease to be serviced
pursuant to this Agreement; provided, however, that, in the event that any
Mortgage Loan transferred pursuant to this Section 9.01 is rejected by the
transferee, the Servicer shall continue to service such rejected Mortgage Loan
on behalf of the Owner in accordance with the terms and provisions of this
Agreement.
The Servicer shall cooperate with the Owner in connection with each
Whole Loan Transfer or Securitization Transaction in accordance with this
Section 9.01. In connection therewith the Servicer shall:
(a) make all representations and warranties with respect to the
servicing of the Mortgage Loans and with respect to the Servicer itself as of
the closing date of each Whole Loan Transfer or Securitization Transaction;
(b) execute any documents required to service the loans in
accordance with this Agreement;
(c) represent to the Owner, the depositor, the trustee, and the
initial purchaser of the securities issued in connection with any Securitization
Transaction that the Servicer 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;
(d) deliver an opinion of counsel (which can be an opinion of
in-house counsel to the Servicer) reasonably acceptable to the Owner; provided
that any out-of-pocket, third party expenses incurred by the Servicer in
connection with the foregoing shall be paid by the Owner;
(e) provide such additional cooperation, in connection with a
Securitization Transaction with respect to the Mortgage Loans, as is reasonably
believed necessary by the parties, including any trustee, any Rating Agency, the
Owner, as the case may be, in connection with such Whole Loan Transfers or
Securitization Transactions. The Owner shall pay all third party costs
associated with the preparation of such information.
(f) Within five (5) Business Days following request by the Owner or
any Depositor, provide to the Owner and such Depositor (or, as applicable, cause
each Subservicer to provide), in writing and in form and substance reasonably
satisfactory to the Owner and such Depositor, the information and materials
specified in subsections (g), and (h) and as promptly as practicable following
notice to or discovery by the Servicer, provide to the Owner and any Depositor
(in writing and in form and substance reasonably satisfactory to the Owner and
such Depositor) the information specified in subsection (f).
(g) If so requested by the Owner or any Depositor, the Servicer
shall provide such information regarding the Servicer, as servicer of the
Mortgage Loans, and each Subservicer (each of the Servicer and each Subservicer,
for purposes of this Section 9.01(g), a "Servicer"), as is requested for the
purpose of compliance with Items 1108, 1117 and 1119 of Regulation AB. Such
information shall include, at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's
experience in servicing assets of any type as well as a more
detailed discussion of the Servicer's experience in, and procedures
for, the servicing function it will perform under this Agreement and
any Reconstitution Agreements; information regarding the size,
composition and growth of the Servicer's portfolio of residential
mortgage loans of a type similar to the Mortgage Loans and
information on factors related to the Servicer that may be material,
in the good faith judgment of the Owner 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 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 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 Servicer as a servicer during the
three-year period immediately preceding the related
Securitization Transaction;
(4) whether the Servicer has been terminated as servicer
in a residential mortgage loan securitization, either due to a
servicing default or to application of a servicing performance
test or trigger; and
(5) such other information as the Owner 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 Servicer's policies or procedures with respect to
the servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of a type similar to
the Mortgage Loans;
(D) information regarding the Servicer's financial condition,
to the extent that there is a material risk that an adverse
financial event or circumstance involving the Servicer could have a
material adverse effect on the performance by the Servicer of its
servicing obligations under this Agreement or any Reconstitution
Agreement;
(E) information regarding advances made by the Servicer on the
Mortgage Loans and the Servicer's overall servicing portfolio of
residential mortgage loans for the three-year period immediately
preceding the related Securitization Transaction, which may be
limited to a statement by an authorized officer of the Servicer to
the effect that the Servicer has made all advances required to be
made on residential mortgage loans serviced by it during such
period, or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as required,
and the reasons for such failure to advance;
(F) a description of the Servicer's processes and procedures
designed to address any special or unique factors involved in
servicing loans of a similar type as the Mortgage Loans;
(G) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of defaulted mortgage
loans or workouts;
(H) information as to how the Servicer defines or determines
delinquencies and charge-offs, including the effect of any grace
period, re-aging, restructuring, partial payments considered current
or other practices with respect to delinquency and loss experience;
(I) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against the
Servicer; and
(J) a description of any affiliation or relationship between
the Servicer and any of the following parties to a Securitization
Transaction, as such parties are identified to the Servicer by the
Owner 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.
(h) For the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, the Servicer
shall (or shall cause each Subservicer to: (i) provide prompt notice to the
Owner, any Master Servicer and any Depositor in writing of (A) any material
litigation or governmental proceedings involving the Servicer or any Subservicer
, (B) any affiliations or relationships that develop following the closing date
of a Securitization Transaction between the Servicer or any Subservicer and any
of the parties specified in clause (J) of paragraph (g) of this Section (and any
other parties identified in writing by the requesting party) with respect to
such Securitization Transaction, (C) any Event of Default under the terms of
this Agreement or any Reconstitution Agreement, (D) any merger, consolidation or
sale of substantially all of the assets of the Servicer, and (E) the Servicer's
entry into an agreement with a Subservicer to perform or assist in the
performance of any of the Servicer's obligations under this Agreement or any
Reconstitution Agreement and (ii) provide to the Owner and any Depositor a
description of such proceedings, affiliations or relationships.
(i) 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 appointed as a
successor to the Servicer or any Subservicer, the Servicer shall provide to the
Owner and any Depositor, at least fifteen (15) calendar days prior to the
effective date of such succession or appointment, (x) written notice to the
Owner and any Depositor of such succession or appointment and (y) in writing and
in form and substance reasonably satisfactory to the Owner and such Depositor,
all information reasonably requested by the Owner 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.
(j) (i) The Servicer shall be deemed to represent to the Owner, to
any Master Servicer and to any Depositor, as of the date on which information is
first provided to the Owner, any Master Servicer or any Depositor under this
Section 9.01(j) that, except as disclosed in writing to the Owner, any Master
Servicer or such Depositor prior to such date: (1) 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; (2) 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; (3) 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; (4) 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; (5) 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; (6) there are no material legal or governmental proceedings pending
(or known to be contemplated) against the Servicer or any Subservicer; and (7)
there are no affiliations, relationships or transactions relating to the
Servicer or any Subservicer with respect to any Securitization Transaction and
any party thereto identified by the related Depositor of a type described in
Item 1119 of Regulation AB.
(ii) If so requested by the Owner, any Master Servicer or any
Depositor on any date following the date on which information is first
provided to the Owner, any Master Servicer or any Depositor under this
Section 9.01(j), the Servicer shall, within five (5) Business Days
following such request, confirm in writing the accuracy of the
representations and warranties set forth in sub clause (i) above 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.
(iii) 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 Owner or any Depositor, the Servicer shall provide
such information reasonably available to the Servicer 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. 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 request.
(k) The Servicer shall indemnify the Owner, each affiliate of the
Owner, and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person, including any Master
Servicer, if applicable, 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 Owner, 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, affiliates and agents of each of the foregoing and of the Depositor
(each an "Indemnified Party"), 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, data,
accountants' letter or other material provided under Sections 4.25, 6.04,
6.06, 9.01(d), (h), (i) and (g) by or on behalf of the Servicer, or
provided under Sections 4.25, 6.04, 6.06, 9.01(d), (h), (i) and (g) by or
on behalf of any Subservicer or Subcontractor (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;
(ii) any breach by the Servicer of its obligations under this
Section 9.01(k), including particularly any failure by the Servicer, any
Subservicer or any Subcontractor to deliver any information, report,
certification, accountants' letter or other material when and as required
under Sections 4.25, 6.04, 6.06, 9.01(d), (h) (i) and (g), including any
failure by the Servicer to identify any Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Servicer of a representation or warranty set
forth in Section 9.01(j)(i) or in a writing furnished pursuant to Section
9.01(j)(ii) 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 Section 9.01(j)(ii) to the
extent made as of a date subsequent to such closing date; or
(iv) the negligence, bad faith or willful misconduct of the Servicer
in connection with its performance under this Section 9.01(k).
If the indemnification provided for herein is unavailable or insufficient
to hold harmless an Indemnified party, then the Servicer agrees that it
shall contribute to the amount paid or payable by such Indemnified Party
as a result of any claims, losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and any other costs,
fees and expenses incurred by 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 the case of any failure of performance described in sub-clause (ii) of
this Section 9.01(k), the Servicer shall promptly reimburse the Owner, 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 Servicer, any Subservicer or any
Subcontractor.
This indemnification shall survive the termination of this Agreement or
the termination of any party to this Agreement.
(l) The Owner and each Person who controls the Owner (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act)
shall indemnify the Servicer, each affiliate of the Servicer, each Person who
controls any of such parties or the Servicer (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 Servicer, and shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon:
(i) any untrue statement of a material fact contained or alleged to
be contained in any offering materials related to a Securitization
Transaction, including without limitation the registration statement,
prospectus, prospectus supplement, any private placement memorandum, any
offering circular, any computational materials, and any amendments or
supplements to the foregoing (collectively, the "Securitization
Materials") or
(ii) the omission or alleged omission to state in the Securitization
Materials a material fact required to be stated in the Securitization
Materials or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, but
only to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission is other than a statement or omission
arising out of, resulting from, or based upon the Servicer Information.
(m) indemnify the Owner for any material misstatements, omissions or
alleged material misstatements or omissions contained in the information
provided pursuant to (g) or (j) above; provided, that the Owner shall provide
indemnification to the Servicer, 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
Servicer pursuant to (g) or (j) above) in any securitization offering materials;
(n) if required at any time by the Rating Agencies in connection
with any Securitization Transaction, the Servicer shall deliver such additional
documents from its Mortgage File to the Custodian as the Rating Agencies may
require (a "Rating Agency Delivery Event");
(o) to negotiate and execute one or more servicing agreements
between the Servicer and any master servicer which is generally considered to be
a prudent master servicer in the secondary mortgage market, designated by the
Owner in its sole discretion after consultation with the Servicer and/or one or
more custodial agreements among the Owner, the Servicer and a third party
custodian/trustee which is generally considered to be a prudent
custodian/trustee in the secondary mortgage market designated by the Owner in
its sole discretion after consultation with the Servicer, in either case for the
purpose of pooling the Mortgage Loans with other mortgage loans for resale or
securitization;
(p) in connection with any securitization of any Mortgage Loans, to
execute a pooling and servicing agreement, which pooling and servicing agreement
may, at the Owner's direction, contain contractual provisions including,
servicer advances of delinquent scheduled payments of principal and interest
through liquidation (unless deemed non recoverable) and prepayment interest
shortfalls (to the extent of the monthly servicing fee payable thereto);
(q) the Servicer shall, at the Owner's expense, make available to
the Owner, its affiliates, successors or assigns an agreed-upon procedures
letter concerning the aforementioned disclosures, which letter shall be issued
by an accounting firm selected by the Servicer and acceptable to the Owner, its
affiliates, successors or assigns, for inclusion in the offering materials for
the securities created in the Securitization Transaction; and
(r) in the event the Owner appoints a credit risk manager in
connection with a Securitization Transaction, to execute a credit risk
management agreement and provide reports and information reasonably required by
the credit risk manager.
The Owner and the Servicer acknowledge and agree that the purpose of
Section 9.01 is to facilitate compliance by the Owner 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
Servicer acknowledges that investors in privately offered securities may require
that the Owner or any Depositor provide comparable disclosure in unregistered
offerings. References in this Agreement to compliance with Regulation AB include
provisions of comparable disclosure in private offerings.
Neither the Owner nor any Depositor shall exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder. The 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 Owner, any Master Servicer or any Depositor in
good faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with any Securitization
Transaction, the Servicer shall cooperate fully with the Owner to deliver to the
Owner (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 Owner, any Master Servicer or
any Depositor to permit the Owner, such Master Servicer or such Depositor to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Servicer, any Subservicer, and the Mortgage Loans, or the
servicing of the Mortgage Loans, reasonably believed by the Owner or any
Depositor to be necessary in order to effect such compliance.
The Owner (including any of its assignees or designees) shall
cooperate with the Servicer by providing timely notice of requests for
information under these provisions and by reasonably limiting such request to
information required, in the Owner's reasonable judgment, to comply with
Regulation AB.
In the event the Owner has elected to have the Servicer hold record
title to the Mortgages, prior to the Reconstitution Date and after the related
Closing Date the Servicer shall prepare an Assignment of Mortgage in blank or,
at the option of the Owner, to the trustee from the Servicer (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 Securitization Transactions. The Owner shall pay all preparation
and recording costs associated therewith. The Servicer 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 Servicer's
receipt thereof. Additionally, the Servicer shall prepare and execute, at the
direction of the Owner, any note endorsements in connection with any and all
seller/servicer agreements.
All Mortgage Loans (i) not sold or transferred pursuant to Whole
Loan Transfers or Securitization Transactions or (ii) that are subject to a
Securitization Transaction for which the related trust is terminated for any
reason, 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.
ARTICLE X
DEFAULT
Section 10.01 Events of Default. Each of the following shall
constitute an Event of Default on the part of the Servicer:
(i) any failure by the Servicer to remit to the Owner any payment
required to be made under the terms of this Agreement which continues
unremedied for a period of three (3) Business Days 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 Owner; or
(ii) failure by the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Servicer set forth in this Agreement or in the Custodial Agreement
which continues unremedied for a period of 30 days (except that such
number of days shall be fifteen in the case of a failure to pay any
premium for any insurance policy required to be maintained under this
Agreement and such number of days shall be five Business Days in the case
of a failure to deliver any reports required to be delivered to the Owner
hereunder) after the earlier of (i) the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to
the Servicer by the Owner or by the Custodian and (ii) actual knowledge of
such failure by the Servicer; or
(iii) failure by the Servicer 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 Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(v) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating
to the Servicer or of or relating to all or substantially all of its
property; or
(vi) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of
any applicable insolvency, 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 (3)
Business Days; or
(vii) the Servicer ceases to meet the qualifications of a Xxxxxx
Xxx/Xxxxxxx Mac servicer; or
(viii) the Servicer attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or the servicing
responsibilities hereunder in violation of Section 8.04.
(ix) failure by the Servicer to duly perform, within the required
time period, its obligations under Sections 4.25, 6.04, 6.05, 6.06 and
9.01 which failure continues unremedied for a period of fifteen (15) 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 any party to this
Agreement or by any master servicer responsible for master servicing the
Mortgage Loans pursuant to a securitization of such Mortgage Loans.
In each and every such case, so long as an Event of Default shall
not have been remedied, in addition to whatever rights the Owner may have at law
or equity to damages, including injunctive relief and specific performance, the
Owner, by notice in writing to the Servicer, may terminate 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, 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 Section 12.01. Upon written request from any Owner, the
Servicer shall prepare, execute and deliver to the successor entity designated
by the Owner 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. The Servicer shall
cooperate with the Owner 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 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.
If any of the Mortgage Loans are MERS Mortgage Loans, in connection
with the termination or resignation (as described in Section 8.04) of the
Servicer 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 Servicer shall cooperate with the 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 Owner 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 10.02 Waiver of Defaults. By a written notice, the Owner 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 thereon
except to the extent expressly so waived.
ARTICLE XI
TERMINATION
Section 11.01 Termination. This Agreement shall terminate upon
either: (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; or (ii) mutual consent of the Servicer and the Owner in writing;
or (iii) termination pursuant to Section 10.01 or 11.02. In the event of a
termination of the Servicer under Section 10.01, no liquidated damages shall be
payable to the Servicer and the Servicer shall be required, at its own expense,
to deliver to the Custodian the entire contents of the Mortgage File in its
possession, to the extent such contents were not previously delivered to the
Custodian pursuant to this Agreement or the Custodial Agreement.
Section 11.02 Termination Without Cause. The Owner may terminate, at
its sole option, any rights the Servicer may have hereunder, without cause as
provided in this Section 11.02. Any such notice of termination shall be in
writing and delivered to the Servicer by registered mail as provided in Section
12.05.
For termination without cause, the Servicer shall be entitled to
receive from the Owner, with respect to each Mortgage Loan subject to
termination, pursuant to this Section 11.02, an amount equal to the sum of: (i)
2.25% of the aggregate outstanding principal amount of the Mortgage Loans as of
the termination date, unless otherwise mutually agreed upon in writing by the
parties; (ii) unreimbursed Monthly Advances and Servicing Advances; (iii) costs
to transfer the Mortgage Loans to the successor servicer; and (iv) Servicing
Fees and REO Disposition Fees earned but not yet collected.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Successor to Servicer. Prior to termination of the
Servicer's responsibilities and duties under this Agreement pursuant to Sections
8.04, 10.01, 11.01(ii) or pursuant to Section 11.02 the Owner shall, (i) succeed
to and assume all of the Servicer's responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor having the
characteristics set forth in Section 8.02 and which shall succeed to all rights
and assume all of the responsibilities, duties and liabilities of the Servicer
under this Agreement prior to the termination of Servicer's responsibilities,
duties and liabilities under this Agreement. In connection with such appointment
and assumption, the Owner 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 Servicer's duties, responsibilities and liabilities
under this Agreement should be terminated pursuant to the aforementioned
sections, 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 sections shall not become effective until a successor shall be
appointed pursuant to this Section 12.01 and shall in no event relieve the
Servicer of the representations and warranties made pursuant to Section 3.01 and
the remedies available to the Owner under Sections 3.02 and 8.01, it being
understood and agreed that the provisions of such Sections 3.01, 3.02 and 8.01
shall be applicable to the Servicer notwithstanding any such sale, assignment,
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 Owner an instrument accepting
such appointment, wherein the successor shall make the representations and
warranties set forth in Section 3.01, 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
termination of this Agreement pursuant to Section 8.04, 10.01, 11.01 or 11.02
shall not affect any claims that any Owner may have against the Servicer arising
out of the Servicer's actions or failure to act prior to any such termination or
resignation.
The Servicer 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 Servicer 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 Servicer.
Upon a successor's acceptance of appointment as such, the Servicer
shall notify by mail the Owner of such appointment in accordance with the
procedures set forth in Section 12.05.
Section 12.02 Amendment. This Agreement may be amended from time to
time by written agreement signed by the Servicer and the Owner.
Section 12.03 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 Servicer and the Owner 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 Servicer or the Owner.
Section 12.04 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 Owner.
Section 12.05 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 Servicer with respect to servicing and investor
reporting issues:
Xxxxx Fargo Bank, N.A.
1 Home Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, MAC X2302-033
Fax: 515/000-0000
with a copy to:
Xxxxx Fargo Bank, N.A.
1 Home Campus
Xxx Xxxxxx, Xxxx 00000-0000
Attention: General Counsel MAC X2401-06T
or such other address as may hereafter be furnished to the Owner in
writing by the Servicer;
(ii) if to Owner:
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 Servicer
in writing by the Owner.
Section 12.06 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 12.07 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 Servicer shall be rendered as an
independent contractor and not as agent for the Owner.
Section 12.08 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 8.04, this Agreement shall inure to the benefit of
and be binding upon, and shall be enforceable by, the Servicer and the Owner and
their respective successors and assigns, including without limitation, any
trustee or master servicer appointed by the Owner with respect any Whole
Transfer or Securitization Transaction.
Section 12.09 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,
such recordation to be effected at the Owner's expense in the event recordation
is either necessary under applicable law or requested by the Owner at its sole
option.
Section 12.10 Assignment by Owner. The Owner shall have the right,
without the consent of the Servicer to assign, in whole or in part, its interest
under this Agreement with respect to some or all of the Mortgage Loans, and
designate any person to exercise any rights of the Owner hereunder, by executing
an Assignment and Assumption Agreement substantially in the form attached as
Exhibit B, and the assignee or designee shall accede to the rights and
obligations hereunder of the Owner with respect to such Mortgage Loans. All
references to the Owner in this Agreement shall be deemed to include its
assignee or designee.
Section 12.11 Solicitation of Mortgagor. Neither party shall, after
the Sale 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.
Section 12.12 Further Agreements. The Owner and the Servicer each
agree to execute and deliver to the other such additional documents, instruments
or agreements as may be necessary or appropriate to effectuate the purposes of
this Agreement.
Section 12.13 Conflicts. If any conflicting terms shall exist
between this Agreement, the Purchase Agreement, and any Commitment Letter, the
terms and conditions of the Commitment Letter shall govern over all other
documents; the Purchase Agreement shall govern over this Agreement.
Section 12.14 Third Party Beneficiaries. For purposes of Sections
4.25, 6.04, 6.05, 6.06 and 9.01 and any related provisions thereto, each Master
Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereof as if it were a direct party to
this Agreement.
[Intentionally Blank - Next Page Signature Page]
IN WITNESS WHEREOF, the Servicer and the Owner have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
XXXXXXX SACHS MORTGAGE COMPANY XXXXX FARGO BANK, N.A.
Owner Servicer
By: Xxxxxxx Sachs Real Estate Funding
Corp., its General Partner
By:__________________________ By:__________________________
Name: Name:
Title: Title:
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of _______________, 20___ before me, a Notary
Public in and for said State, personally appeared______________, known to me to
be [Vice] President 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
[SEAL]
My commission expires:
_______________________________________
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of _______________, 20___ before me, a Notary
Public in and for said State, personally appeared
_____________________________________, known to me to be the
______________________________ of Xxxxxxx Sachs Real Estate Funding Corp., the
general partner of Xxxxxxx Xxxxx 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 partnership
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
[SEAL]
My commission expires:
_______________________________________
EXHIBIT A
FORM ACKNOWLEDGMENT AGREEMENT
THIS ACKNOWLEDGMENT AGREEMENT, dated as of _____________, (the
"Acknowledgement Agreement"), between Xxxxxxx Xxxxx Mortgage Company, ("Owner"),
and Xxxxx Fargo Bank, N.A., ("Servicer"), (together, the "Parties").
W I T N E S S E T H:
WHEREAS, Owner has purchased certain mortgage loans on a servicing
released basis identified on Schedule I attached hereto, (the "Mortgage Loans").
WHEREAS, the Owner desires to retain Servicer to service and provide
management and disposition services for the Mortgage Loans on behalf of the
Owner pursuant to the terms of that certain Servicing Agreement by and between
the Owner and the Servicer dated as June 30, 2006 (the " Servicing Agreement");
NOW THEREFORE, for and in consideration of the mutual premises set
forth herein and other good and valuable consideration the receipt and
sufficiency of which hereby are acknowledged, and of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. Unless otherwise amended by this Acknowledgment Agreement, all
provisions of the Servicing Agreement shall apply to the servicing of the
Mortgage Loans.
2. The Servicing Fee Rate with respect to the Mortgage Loans shall
be [__]%
3. Capitalized terms not otherwise defined herein shall have the
meanings assigned under the Flow Subservicing Agreement.
4. This Agreement is entered into in the State of New York. Its
construction and rights, remedies, and obligations arising by, under, through,
or on account of it will be governed by the laws of the State of New York
excluding its conflict of laws rules and will be deemed performable in the State
of New York.
5. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
[SIGNATURES APPEAR ON NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this
Acknowledgment Agreement to be duly executed on their behalf by the undersigned,
duly authorized, as of the day and year first above written.
XXXXXXX XXXXX MORTGAGE COMPANY
Owner
By: Xxxxxxx Sachs Real Estate
Funding Corp., its General Partner
By:____________________________________
Name:
Title:
XXXXX FARGO BANK, N.A.
Servicer
By:____________________________________
Name:
Title:
Schedule I
EXHIBIT B
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
____________, 20__
ASSIGNMENT AND ASSUMPTION, dated ___________________, 20__ among
_________________, a _________________ corporation having an office at
_________________ ("Assignor") and _________________, having an office at
_________________ ("Assignee") and Xxxxx Fargo Bank, N.A. (the "Servicer"),
having an xxxxxx xx 0 Xxxx Xxxxxx, Xxx Xxxxxx, XX 00000-0000:
For and in consideration of the sum of one dollar ($1.00) and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. The Assignor hereby grants, transfers and assigns to Assignee all
of the right, title and interest of Assignor, as Owner, in, to and under that
certain Servicing Agreement, (the "Servicing Agreement"), dated as of
_________________, by and between _________________ (the "Owner"), and
_________________ (the "Servicer"), and the Mortgage Loans delivered thereunder
by the Servicer to the Assignor, and that certain Custodial Agreement, (the
"Custodial Agreement"), dated as of _________________, by and among the
Servicer, the Owner and _________________ (the "Custodian").
2. The Assignor warrants and represents to, and covenants with, the
Assignee that:
(a) The Assignor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans free from any and all claims and
encumbrances whatsoever;
(b) The Assignor has not received notice of, and has no knowledge
of, any offsets, counterclaims or other defenses available to the Servicer
with respect to the Servicing Agreement or the Mortgage Loans;
(c) The Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Servicing Agreement,
the Custodial Agreement or the Mortgage Loans, including without
limitation the transfer of the servicing obligations under the Servicing
Agreement. The Assignor has no knowledge of, and has not received notice
of, any waivers under or amendments or other modifications of, or
assignments of rights or obligations under, the Servicing Agreement or the
Mortgage Loans; and
(d) Neither the Assignor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage
Loans, any interest in the Mortgage Loans or any other similar security
to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Mortgage Loans, any interest in the Mortgage Loans or
any other similar security from, or otherwise approached or negotiated
with respect to the Mortgage Loans, any interest in the 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 (the "33 Act") or
which would render the disposition of the Mortgage Loans a violation of
Section 5 of the 33 Act or require registration pursuant thereto.
3. That Assignee warrants and represent to, and covenants with, the
Assignor and the Servicer pursuant to Section 12.10 of the Servicing Agreement
that:
(a) The Assignee agrees to be bound, as Owner, by all of the terms,
covenants and conditions of the Servicing Agreement, the Mortgage Loans
and the Custodial Agreement, and from and after the date hereof, the
Assignee assumes for the benefit of each of the Servicer and the Assignor
all of the Assignor's obligations as purchaser thereunder;
(b) The Assignee understands that the Mortgage Loans have not been
registered under the 33 Act or the securities laws of any state;
(c) The purchase price being paid by the Assignee for the Mortgage
Loans are in excess of $250,000.00 and will be paid by cash remittance of
the full purchase price within 60 days of the sale;
(d) The Assignee is acquiring the Mortgage Loans for investment for
its own account only and not for any other person. In this connection,
neither the Assignee nor any person authorized to act therefor has offered
to sell the Mortgage Loans by means of any general advertising or general
solicitation within the meaning of Rule 502(c) of US Securities and
Exchange Commission Regulation D, promulgated under the 1933 Act;
(e) The Assignee considers itself a substantial sophisticated
institutional investor having such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks
of investment in the Mortgage Loans;
(f) The Assignee has been furnished with all information regarding
the Mortgage Loans that it has requested from the Assignor or the
Servicer;
(g) Neither the Assignee nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage
Loans, any interest in the Mortgage Loans or any other similar security
to, or solicited any offer to buy or accepted a transfer, pledge or other
disposition of the Mortgage Loans, any interest in the Mortgage Loans or
any other similar security from, or otherwise approached or negotiated
with respect to the Mortgage Loans, any interest in the Mortgage Loans or
any other similar security with, any person in any manner which would
constitute a distribution of the Mortgage Loans under the 33 Act or which
would render the disposition of the Mortgage Loans a violation of Section
5 of the 33 Act or require registration pursuant thereto, nor will it act,
nor has it authorized or will it authorize any person to act, in such
manner with respect to the Mortgage Loans; and
(h) Either (1) the Assignee is not an employee benefit plan ("Plan")
within the meaning of section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or a plan (also "Plan") within
the meaning of section 4975(e)(1) of the Internal Revenue Code of 1986
("Code"), and the Assignee is not directly or indirectly purchasing the
Mortgage Loans on behalf of, investment manager of, as named fiduciary of,
as Trustee of, or with assets of, a Plan; or (2) the Assignee's purchase
of the Mortgage Loans will not result in a prohibited transaction under
section 406 of ERISA or section 4975 of the Code.
(i) The Assignee's address for purposes of all notices and correspondence
related to the Mortgage Loans and the Servicing Agreements is:
__________________________
__________________________
__________________________
Attention: _________________
The Assignee's wire transfer instructions for purposes of all
remittances and payments related to the Mortgage Loans and the Servicing
Agreement is:
__________________________
__________________________
__________________________
Attention: _________________
4. From and after the date hereof, the Servicer shall note the
transfer of the Mortgage Loans to the Assignee in its books and records, the
Servicer shall recognize the Assignee as the owner of the Mortgage Loans and the
Servicer 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, the Servicer and the Assignee
that the Servicing Agreement shall be binding upon and inure to the benefit of
the Servicer and the Assignee and their respective successors and assigns.
[Signatures Follow]
IN WITNESS WHEREOF, the parties have caused this Assignment,
Assumption and Recognition Agreement to be executed by their duly authorized
officers as of the date first above written.
_____________________________________ _____________________________________
Assignor Assignee
By:____________________________________ By:____________________________________
Name:_______________________________ Name:_______________________________
Title:______________________________ Title:______________________________
Its:________________________________ Its:________________________________
Tax Payer Identification No.:_______ Tax Payer Identification No.:_______
XXXXX FARGO BANK, N.A.
By:____________________________________
Name:_______________________________
Title:______________________________
Its:________________________________
EXHIBIT C
RESERVED
EXHIBIT D
RESERVED
EXHIBIT E
FORMS OF CUSTODIAL ACCOUNT CERTIFICATION
CUSTODIAL ACCOUNT CERTIFICATION
________________, 20__
Xxxxx Fargo Bank, N.A. hereby certifies that it has established the
account described below as a Custodial Account pursuant to Section 4.04 of the
Servicing Agreement, dated as of ____, 20___.
Title of Account: Xxxxx Fargo Bank, N.A. in trust for the Owner
and/or subsequent purchasers of Mortgage Loans
- P & I
Address of office or branch
of the Servicer at which
Account is maintained: ___________________________________________
___________________________________________
___________________________________________
XXXXX FARGO BANK, N.A.
Servicer
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT F
FORMS OF ESCROW ACCOUNT CERTIFICATION
ESCROW ACCOUNT CERTIFICATION
______________________, 20___
Xxxxx Fargo Bank, N.A. hereby certifies that it has established the
account described below as an Escrow Account pursuant to Section 4.06 of the
Servicing Agreement, dated as of ______________, 20____.
Title of Account: Xxxxx Fargo Bank, N.A. in trust for the Owner
and/or subsequent purchasers of Mortgage Loans,
and various Mortgagors - T & I
Address of office or branch
of the Servicer at which
Account is maintained: _____________________________________________
_____________________________________________
_____________________________________________
XXXXX FARGO BANK, N.A.
Servicer
By:____________________________________
Name:
Title:
EXHIBIT G
FORM OF POWER OF ATTORNEY
When Recorded Mail To:
_____________________________________________________ Space above this line
for Recorders Use
LIMITED POWER OF ATTORNEY
Name of Servicer (hereinafter called "Owner") hereby appoints Xxxxx Fargo Bank,
N.A. (hereinafter called "Servicer"), as its true and lawful attorney_in_fact to
act in the name, place and stead of Owner for the purposes set forth below. This
limited power of attorney is given pursuant to a certain Servicing Agreement and
solely with respect to the assets serviced pursuant to such agreement by and
between Owner and Servicer dated Date of Agreement, to which reference is made
for the definition of all capitalized terms herein.
The said attorneys_in_fact, and said person designated by the Servicer, as the
attorney_in_fact, is hereby authorized, and empowered, as follows:
1. To execute, acknowledge, seal and deliver deed of trust/mortgage
note endorsements, lost note affidavits, assignments of deed of
trust/mortgage and other recorded documents,
satisfactions/releases/reconveyances of deed of trust/mortgage,
subordinations and modifications, tax authority notifications and
declarations, deeds, bills of sale, and other instruments of sale,
conveyance and transfer, appropriately completed, with all ordinary
or necessary endorsements, acknowledgements, affidavits, and
supporting documents as may be necessary or appropriate to effect
its execution, delivery, conveyance, recordation or filing.
2. To execute and deliver insurance filings and claims, affidavits of
debt, substitutions of trustee, substitutions of counsel,
non_military affidavits, notices of rescission, foreclosure deeds,
transfer tax affidavits, affidavits of merit, verifications of
complaints, notices to quit, bankruptcy declarations for the purpose
of filing motions to lift stays, and other documents or notice
filings on behalf of Seller in connection with insurance,
foreclosure, bankruptcy and eviction actions.
3. To endorse any checks or other instruments received by Servicer with
respect to assets serviced pursuant to the Servicing Agreement and
made payable to Owner.
Witness: Name:
____________________________________ ____________________________________
Name: Name:
Title: Title:
STATE OF )
) ss.:
COUNTY OF )
Before me, ______________________, a Notary Public in and for the
jurisdiction aforesaid, on this _____ day of ____________________, _______,
personally appeared ___________________________, who is personally known to me
(or sufficiently proven) to be a __________________________________ of
_______________________________ and the person who executed the foregoing
instrument by virtue of the authority vested in him/her and he/she did
acknowledge the signing of the foregoing instrument to be his/her free and
voluntary act and deed as a _________________________________ for the uses,
purposes and consideration therein set forth.
Witness my hand and official seal this _____ day of
_____________________, _______.
_____________________________________
Notary Public
[SEAL]
My commission expires:
_______________________________________
EXHIBIT H
IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company][Name
of Subservicer] shall address, as a minimum, the criteria identified below as
"Applicable Servicing Criteria"
Applicable Inpplicable
Reg AB Servicing Servicing
Reference SERVICING CRITERIA Criteria Criteria
------------------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
Policies and procedures are instituted to monitor any performance
or other triggers and events of default in accordance with the
1122(d)(1)(i) transaction agreements. X
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
1122(d)(1)(ii) activities. X
Any requirements in the transaction agreements to maintain a
1122(d)(1)(iii) back-up servicer for the mortgage loans are maintained. X
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 days specified in the transaction
1122(d)(2)(i) agreements. X
Disbursements made via wire transfer on behalf of an obligor or to
1122(d)(2)(ii) an investor are made only by authorized personnel. 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
1122(d)(2)(iii) in 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 cash) as set forth in the transaction
1122(d)(2)(iv) agreements. 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
Unissued checks are safeguarded so as to prevent unauthorized
1122(d)(2)(vi) access. X
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 X X their original
identification, or such other number of days specified in
1122(d)(2)(vii) the transaction agreements. X
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 the
1122(d)(3)(i) Servicer. X
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other
1122(d)(3)(ii) 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 X
1122(d)(3)(iii) days specified in the transaction agreements.
Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank
1122(d)(3)(iv) statements. X
Pool Asset Administration
Collateral or security on mortgage loans is maintained as required X
1122(d)(4)(i) by the transaction agreements or related mortgage loan documents.
Mortgage loan and related documents are safeguarded as required by
1122(d)(4)(ii) the transaction agreements X
Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
1122(d)(4)(iii) conditions or requirements in the transaction agreements. X
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
1122(d)(4)(iv) loan documents. X
The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
1122(d)(4)(v) unpaid principal balance. X
Changes with respect to the terms or status of an obligor's
mortgage loans (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance with
1122(d)(4)(vi) the transaction agreements and related pool asset documents. X
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
1122(d)(4)(vii) established by the transaction agreements. X
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
1122(d)(4)(viii) is deemed temporary (e.g., illness or unemployment). X
Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based on
1122(d)(4)(ix) the related mortgage loan documents. 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
1122(d)(4)(x) number of days specified in the transaction agreements. X
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
1122(d)(4)(xi) agreements. X
Any late payment penalties in connection with any payment to
be made on behalf of an obligor are paid from the Servicer's funds
and not charged to the obligor, unless the late payment was due to the
1122(d)(4)(xii) obligor's error or omission. X
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 X
1122(d)(4)(xiii) agreements.
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
1122(d)(4)(xiv) agreements. X
Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained
1122(d)(4)(xv) as set forth in the transaction agreements. X
EXHIBIT I
SARBANES CERTIFICATION
Re: The [_] agreement dated as of [_], 200[_] (the "Agreement"), among
[IDENTIFY PARTIES]
I, ________________________________, the _______________________ of
[Name of Servicer] (the "Servicer"), certify to [the Owner], [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 Servicer
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria"), provided 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 Servicer
during 200[_] that were delivered by the Servicer to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee] pursuant to the Agreement
(collectively, the "Servicer Servicing Information");
2. Based on my knowledge, the Servicer 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 Servicer Servicing Information;
3. Based on my knowledge, all of the Servicer Servicing Information
required to be provided by the Servicer 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
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 Servicer has fulfilled its obligations under the Agreement; and
5. The Compliance Statement required to be delivered by the Servicer
pursuant to the Agreement, and the Servicing Assessment and Attestation Report
required to be provided by the Servicer and by each Subservicer ad Subcontractor
pursuant to the Agreement have been provided to the [Depositor] [Master
Servicer]. Any material instances of noncompliance described in such reports
have been disclosed to the [Depositor] [Master Servicer]. Any material instance
of noncompliance with the Servicing Criteria has been disclosed in such reports.
Date:
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT 10.7
--------------------------------------------------------------------------------
FFMLT Trust 2006_FF13
Mortgage Pass_Through Certificates, Series 2006_FF13
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR FFMLT 2006_FF13
as Assignee
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Servicer
Dated as of
September 28, 2006
--------------------------------------------------------------------------------
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated September
28, 2006 (this "Agreement"), among GS Mortgage Securities Corp. ("Assignor" or
"Depositor"), Deutsche Bank National Trust Company ("Deutsche Bank"), not in its
individual capacity, but solely as trustee (in such capacity, the "Trustee") on
behalf of FFMLT Trust 2006 FF13 (the "Assignee") and Xxxxx Fargo Bank, National
Association ("Xxxxx Fargo"), as servicer (in such capacity, the "Servicer").
For and in consideration of the mutual promises contained herein and
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, and of the mutual covenants herein contained, the parties
hereto hereby agree as follows:
1. Assignment, Assumption and Conveyance.
The Assignor hereby conveys, sells, grants, transfers and assigns to
the Assignee all of the right, title and interest (other than those rights
specifically retained by the Assignor pursuant to this Agreement) of the
Assignor, as purchaser, in, to and under (a) those certain Mortgage Loans listed
on the schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit 1 (the
"Mortgage Loans"), (b) the Assignment, Assumption and Recognition Agreement,
dated as of September 28, 2006, between Xxxxxxx Sachs Mortgage Company ("GSMC"),
First Franklin Financial Corporation and the Assignor (the "Assignment
Agreement") and (c) solely insofar as it relates to the Mortgage Loans, that
certain Servicing Agreement, dated as of June 30, 2006 (the "Servicing
Agreement"), by and between Xxxxxxx Xxxxx Mortgage Company as predecessor to the
Assignor (in such capacity, the "Owner") and the Servicer. The Assignor hereby
agrees that it will (i) deliver possession of notes evidencing the Mortgage
Loans to, or at the direction of, the Assignee or its designee and (ii) take in
a timely manner all necessary steps under all applicable laws to convey and to
perfect the conveyance of the Mortgage Loans as required under the Pooling and
Servicing Agreement, dated as of September 1, 2006 (the "Pooling Agreement"),
among the Depositor, Deutsche Bank, as Trustee and National City Home Loan
Services, Inc. ("NCHLS").
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Servicing Agreement that are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement, (ii) any
rights and obligations of the Assignor pursuant to the Servicing Agreement
arising prior to the date hereof, (iii) the rights and obligations of the Owner
under the following sections of the Servicing Agreement: Section 11.02 (relating
to the Owner's right to terminate the Servicer) and Section 7.01 (relating to
the Owner's right to receive information from the Servicer) or (iv) any rights
of the Assignor under the Commitment Letter, dated as of September 19, 2006 (the
"Commitment Letter") between the Owner and the Company, which rights shall
survive the execution and delivery of this Agreement.
The Assignee hereby assumes all of the Assignor's obligations under
the Mortgage Loans and the Servicing Agreement solely insofar as such
obligations relate to the Mortgage Loans, other than the obligations set forth
in clauses (ii) and (iii) of the preceding paragraph.
2. Recognition of the Assignee.
(a) The Servicer hereby acknowledges the servicing of the Mortgage
Loans is expected to be transferred to the Servicer on or about November 1, 2006
(the "Transfer Date"); and agrees that from and after the Transfer Date (i) the
Trust will be the owner of the Mortgage Loans and the Servicer will be the
servicer of the Mortgage Loans on or after the applicable Transfer Date pursuant
to the terms set forth in the Servicing Agreement and related Commitment Letter,
(ii) the Servicer shall look solely to the Trust (including the Trustee acting
on the Trust's behalf) for performance of any obligations of the Assignor under
the Mortgage Loans and the Servicing Agreement (solely insofar as it relates to
the Mortgage Loans) (except for such obligations of the Assignor retained by the
Assignor hereunder), (iii) the Trust (including the Trustee acting on the
Trust's behalf) shall have all the rights and remedies available to the
Assignor, insofar as they relate to (A) the Mortgage Loans, under the applicable
purchase agreement pursuant to which the Owner purchased the related Mortgage
Loans from the related Seller and (B) the Servicing Agreement and shall be
entitled to enforce all of the obligations of the Servicer thereunder insofar as
they relate to the Mortgage Loans, including without limitation, the remedies
for breaches of representations and warranties set forth in Section 3.02 of the
Servicing Agreement (except for the rights and remedies retained by the Assignor
hereunder), (iv) all references to the Owner under the Servicing Agreement
insofar as they relate to the Mortgage Loans shall be deemed to refer to the
Trust (except to the extent of the rights and obligations retained by the
Assignor hereunder) (including the Trustee and the Servicer acting on the
Trust's behalf) and (v) the Mortgage Loans will be part of a REMIC, and the
Servicer shall service the Mortgage Loans and any real property acquired upon
default thereof (including, without limitation, making or permitting any
modification, waiver or amendment of any term of any Mortgage Loan) after the
applicable Transfer Date in accordance with the Servicing Agreement but in no
event in a manner that would (A) cause the REMIC to fail to qualify as a REMIC
or (B) result in the imposition of a tax upon the REMIC (including but not
limited to the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code, the tax on contributions to a REMIC set forth in Section 860G(d) of
the Code, and the tax on "net income from foreclosure property" as set forth in
Section 860G(c) of the Code). Neither the Servicer nor the Assignor shall amend
or agree to amend, modify, waive, or otherwise alter any of the terms or
provisions of the Servicing Agreement which amendment, modification, waiver or
other alteration would in any way affect the Mortgage Loans or the Servicer's
performance under the Servicing Agreement with respect to the Mortgage Loans
without the prior written consent of the Depositor as set forth in the Pooling
Agreement.
(b) From and after the Transfer Date, 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, notwithstanding
anything herein or in the Servicing Agreement to the contrary, shall service all
of 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.
(c) The Servicer further acknowledges that, from and after the
Transfer Date, it (and any of its successors under the Servicing Agreement) will
be subject to the supervision of the Trustee as set forth in the Pooling
Agreement with respect to the Mortgage Loans and that each of the Trustee,
acting on behalf of the Assignee as the owner of the Mortgage Loans, shall have
the same rights as were assigned by GSMC, in its capacity as the original
"Owner" under the Servicing Agreement, to the Assignor under the GSMC Assignment
Agreement, and further assigned hereunder by the Assignor to the Assignee. Such
rights that Trustee may enforce on behalf of the Assignee will include, without
limitation, the right to terminate the Servicer under the Servicing Agreement
with respect to the Mortgage Loans upon the occurrence of an event of default
thereunder and the right to exercise certain rights of consent and approval
relating to actions taken by the Servicer with respect to the Mortgage Loans.
(d) From and after the Transfer Date, all reports and other data
required to be delivered by the Servicer to the "Owner" under the Servicing
Agreement with respect to the Mortgage Loans shall be delivered to the Trustee
at the address set forth in Section 7 hereof. All remittances required to be
made to the Trustee, as the successor in interest to the Assignor under the
Servicing Agreement, shall be made instead to the Trustee by wire transfer to
the following account:
Deutsche Bank National Trust Company
ABA Number: 021_001_003
Account Number: 00000000
Account Name: NYLTD Funds Control - Stars West
Ref: Trust Administration - FFMLT 2006-FF13
(e) Monthly Reporting
Notwithstanding anything to the contrary in the Servicing Agreement,
with respect to the Mortgage Loans, not later than the Business Day prior to the
Distribution Date of each month beginning with the month following the Transfer
Date, the Servicer shall furnish to the Trustee (i) (a) monthly loan data as set
forth in Exhibit 2 hereto (or in such other format mutually agreed_upon between
the Servicer and the Trustee), (b) default loan data in the format set forth in
Exhibit 3 hereto (or in such other format mutually agreed_upon between the
Servicer and the Trustee) and (c) information regarding realized losses and
gains in the format set forth in Exhibit 4 hereto (or in such other format
mutually agreed_upon between the Servicer and the Trustee), in each case
relating to the period beginning on the second day of the immediately preceding
month and ending on the first day of the then current month, (ii) all such
information required pursuant to clause (i)(a) above on a magnetic tape,
electronic mail, or other similar media reasonably acceptable to the Trustee and
(iii) all supporting documentation with respect to the information required
pursuant to the immediately preceding paragraph.
(f) [Reserved].
(g) Modifications of the Servicing Agreement
(i) Notwithstanding anything to the contrary in the Servicing
Agreement, Section 10.01(i) is deleted in its entirety and replaced with the
following:
"any failure by the Servicer to remit to the Owner any payment required to
be made under the terms of this Agreement which continues unremedied for a
period of one (1) Business Day after the date upon which written notice (which
notice shall be confirmed electronically or via facsimile) of such failure,
requiring the same to be remedied, shall have been given to the Servicer by the
Owner;"
(ii) Notwithstanding anything to the contrary in the Servicing
Agreement, the first paragraph of Section 9.01(k) is deleted in its entirety and
replaced with the following:
"(k) The Servicer shall indemnify the Owner, each affiliate of the Owner,
and each of the following parties participating in a Securitization Transaction:
each sponsor and issuing entity; each Person, including the Trustee, 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 Owner, 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, affiliates and agents of each
of the foregoing and of the Depositor (each an "Indemnified Party"), 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:"
(iii) Notwithstanding anything to the contrary in the Servicing
Agreement, the following definitions are hereby added to Article I of the
Servicing Agreement:
"Compensating Interest: For any Remittance Date, the lesser of (a)
the Prepayment Interest Shortfall, if any, for such Remittance Date, with
respect to all Principal Prepayments during the related Prepayment Period, and
(b) the aggregate Servicing Fees payable to the Servicer for such Remittance
Date."
"Prepayment Interest Shortfall: With respect to any Remittance Date,
the sum of, for each Mortgage Loan that was, during the related Prepayment
Period, the subject of a Principal Prepayment that was applied by the Servicer
to reduce the outstanding principal balance of such Mortgage Loan on a date
preceding the Due Date in the succeeding Prepayment Period, an amount equal to
the product of (a) the Mortgage Interest Rate net of the Servicing Fee Rate for
such Mortgage Loan, (b) the amount of the Principal Prepayment for such Mortgage
Loan, (c) 1/360 and (d) the number of days commencing on the date on which such
Principal Prepayment was applied and ending on the last day of the related
Prepayment Period."
(iv) Notwithstanding anything to the contrary in the Servicing
Agreement, the Servicer shall remit to the Trustee on each Remittance Date an
amount from its own funds equal to Compensating Interest payable by the Servicer
for such Remittance Date.
(v) The Servicer hereby agrees that it will provide all information
required for the periodic filings under Sections 6.04, 6.05 and 6.06 of the
Servicing Agreement in the time frames and format as required thereunder to the
Trustee.
(vi) Notwithstanding anything to the contrary in the Servicing
Agreement, the definition of "Determination Date" is hereby deleted in its
entirety and replaced with the following:
"The 18th Business Day or if such day is not a Business Day the
immediately preceding Business Day."
3. 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; and
(c) Enforceability. 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).
4. Representations and Warranties of the Assignor.
The Assignor warrants and represents to the Assignee and the Trust
as of date hereof that:
(a) The Assignor is the sole owner of record and holder of the
Mortgage Loans and the indebtedness evidenced by each Mortgage Note. The
Mortgage Loans are not assigned or pledged, and the Assignor has good,
indefeasible and marketable title thereto, and has full right to transfer
and sell the Mortgage Loans to the Assignee free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim
or security interest, and has full right and authority subject to no
interest or participation of, or agreement with, any other party, to sell
and assign each Mortgage Loan pursuant to this Agreement and following the
sale of each Mortgage Loan, the Assignee will own such Mortgage Loan free
and clear of any encumbrance, equity, participation interest, lien,
pledge, charge, claim or security interest. The Assignor intends to
relinquish all rights to possess, control and monitor the Mortgage Loans;
(b) The Assignor has not waived the performance by any Mortgagor of
any action, if such Mortgagor's failure to perform such action would cause
the Mortgage Loan to be in default, nor has the Servicer waived any
default resulting from any action or inaction by such Mortgagor;
(c) With respect to the Mortgage Loans, any and all requirements of
any federal, state or local law including, without limitation, usury,
truth_in_lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity and disclosure laws, all applicable
predatory and abusive lending laws or unfair and deceptive practices laws
applicable to the Mortgage Loans, including, without limitation, any
provisions related to Prepayment Premiums, have been complied with, the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations; and
(d) With respect to the Mortgage Loans, none of the Mortgage Loans
are (a) subject to the Home Ownership and Equity Protection Act of 1994 or
(b) classified as "high cost," "threshold," "covered" or "predatory" loans
under any other applicable federal, state 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).
5. Remedies for Breach of Representations and Warranties of the
Assignor.
The Assignor hereby acknowledges and agrees that in the event of any
breach of the representations and warranties made by the Assignor set forth in
Section 4 hereof or in Section 7 of the Assignment Agreement that materially and
adversely affects the value of the Mortgage Loans or the interest of the
Assignee or the Trust therein, within sixty (60) days of the earlier of either
discovery by or notice to the Assignor of such breach of a representation or
warranty, it shall cure, purchase, cause the purchase of, or substitute for the
applicable Mortgage Loan in the same manner and subject to the conditions set
forth in Section 8 of the Assignment Agreement.
6. Representations and Warranties of the Servicer
The Servicer warrants and represents to and covenants with, the
Assignor, the Assignee and the Trust as of the date hereof that:
(a) The Servicer is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(b) 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 this Agreement and the
Servicing Agreement. The execution by the Servicer of this Agreement is in
the ordinary course of the Servicer's business and will not conflict with,
or result in a breach of, any of the terms, conditions or provisions of
the Servicer's charter or bylaws or any legal restriction, or any material
agreement or instrument to which 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 Servicer or its property is
subject. The execution, delivery and performance by the Servicer of this
Agreement have been duly authorized by all necessary corporate action on
part of the Servicer. This Agreement has been duly executed and delivered
by 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 Servicer, enforceable against 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 Servicer in connection with the execution,
delivery or performance by the Servicer of this Agreement or the
consummation by it of the transaction contemplated hereby;
(d) There is no action, suit, proceeding or investigation pending or
threatened against the Servicer, before any court, administrative agency
or other tribunal, which would draw into question the validity of this
Agreement or the Servicing Agreement, or which, either in any one instance
or in the aggregate, is likely to result in any material adverse change in
the ability of the Servicer to perform its obligations under this
Agreement or the Servicing Agreement, and the Servicer is solvent;
(e) Pursuant to Section 9.01 of the Servicing Agreement, 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 3.01 of the Servicing Agreement are true and correct as
of the date hereof as if such representations and warranties were made on
the date hereof.
7. Accuracy of Servicing Agreement. The Servicer and the Assignor
represent and warrant to the Assignee that (i) attached hereto as Appendix 1 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 (other than
as set forth herein) and (iv) no notice of termination has been given to the
Servicer under the Servicing Agreement.
8. Continuing Effect. Except as contemplated hereby, the Servicing
Agreement shall remain in full force and effect in accordance with its terms.
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:
(a) in the case of the Servicer,
Xxxxx Fargo Bank, National Association
1 Home Campus, MAC #X2302-033
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Xxxxx Fargo Bank, National Association
1 Home Campus, MAC #X2401-06T
Xxx Xxxxxx, Xxxx 00000-0000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Servicer;
(c) in the case of the Trustee or Assignee,
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: Trust Administration - FF0613
Tel.: (000) 000-0000
or such other address as may hereafter be furnished by the Assignee; and
(d) in the case of the Assignor,
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such address as may hereafter be furnished by the Assignor.
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 meaning assigned thereto in the Servicing Agreement or the
Pooling Agreement, as applicable.
12. Trustee Capacity. It is expressly understood and agreed by the
parties hereto that (i) this Agreement is executed and delivered by Deutsche
Bank, not individually or personally but solely on behalf of FFMLT Trust
2006_FF13, as the Assignee, in the exercise of the powers and authority
conferred and vested in it, (ii) each of the representations, undertakings and
agreements by Deutsche Bank is made and intended for the purpose of binding only
the FFMLT Trust 2006_FF13, (iii) nothing herein contained shall be construed as
creating any liability for Deutsche Bank, individually or personally, to perform
any covenant (either express or implied) contained herein, and all such
liability, if any, is hereby expressly waived by the parties hereto, and such
waiver shall bind any third party making a claim by or through one of the
parties hereto, and (iv) under no circumstances shall Deutsche Bank be
personally liable for the payment of any indebtedness or expenses of the FFMLT
Trust 2006_FF13, or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the FFMLT Trust
2006_FF13 under this Agreement, the Pooling Agreement or any related document.
13. Miscellaneous.
(a) 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.
(b) 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.
(c) This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the
Trustee and the Servicer acting on the Trust's behalf). Any entity into
which the Assignor or Assignee may be merged or consolidated shall,
without the requirement for any further writing, be deemed Assignor, or
Assignee, respectively, hereunder.
(d) Each of this Agreement and the Servicing Agreement shall survive
the conveyance of the Mortgage Loans and the assignment of the purchase
agreements and the Servicing Agreement (to the extent assigned hereunder)
by the Assignor to the Assignee and by Assignee to the Trust and nothing
contained herein shall supersede or amend the terms of the purchase
agreements and the Servicing Agreement.
(e) In the event that any provision of this Agreement conflicts with
any provision of the purchase agreements or the Servicing Agreement with
respect to the Mortgage Loans, the terms of this Agreement shall control.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY, not
in its individual capacity but solely as
Trustee
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Servicer
By: /s/ Xxxxxx XxXxxxxx
-----------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
APPENDIX 1
SERVICING AGREEMENT
EXHIBIT 1
Mortgage Loan Schedule
[On File with the Trustee as provided by the Depositor]
EXHIBIT 2
Standard File Layout
[To be attached]
EXHIBIT 3
Standard File Layout - Delinquency
Reporting
Format
Column/Header Name Description Decimal Comment
------------------ ---------------------------------------- ------- ----------------
SERVICER_LOAN_NBR A unique number assigned to a loan by
the Servicer. This may be different than
the LOAN_NBR
LOAN_NBR A unique identifier assigned to each
loan by the originator.
CLIENT_NBR Servicer Client Number
SERV_INVESTOR_NBR Contains a unique number as assigned by
an external servicer to identify a group
of loans in their system.
BORROWER_FIRST_NAME First Name of the Borrower.
BORROWER_LAST_NAME Last name of the borrower.
PROP_ADDRESS Street Name and Number of Property
PROP_STATE The state where the property located.
PROP_ZIP Zip code where the property is located.
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next MM/DD/YYYY
payment is due to the servicer at the
end of processing cycle, as reported by
Servicer.
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim MM/DD/YYYY
was filed.
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy
was filed.
BANKRUPTCY_CASE_NBR The case number assigned by the court to
the bankruptcy filing.
POST_PETITION_DUE_DATE The payment due date once the bankruptcy MM/DD/YYYY
has been approved by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From MM/DD/YYYY
Bankruptcy. Either by Dismissal,
Discharged and/or a Motion For Relief
Was Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was MM/DD/YYYY
Approved By The Servicer
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For
A Loan Such As;
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is MM/DD/YYYY
Scheduled To End/Close
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually MM/DD/YYYY
Completed
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the MM/DD/YYYY
servicer with instructions to begin
foreclosure proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to MM/DD/YYYY
Pursue Foreclosure
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney MM/DD/YYYY
in a Foreclosure Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to occur.
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the 2 No commas(,) or
foreclosure sale. dollar signs ($)
EVICTION_START_DATE The date the servicer initiates eviction MM/DD/YYYY
of the borrower.
EVICTION_COMPLETED_DATE The date the court revokes legal
possession of the property from the MM/DD/YYYY
borrower.
LIST_PRICE The price at which an REO property is 2 No commas(,) or
marketed. dollar signs ($)
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
OFFER_AMT The dollar value of an offer for an REO 2 No commas(,) or
property. dollar signs ($)
OFFER_DATE_TIME The date an offer is received by DA MM/DD/YYYY
Admin or by the Servicer.
REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
OCCUPANT_CODE Classification of how the property is
occupied.
PROP_CONDITION_CODE A code that indicates the condition of
the property.
PROP_INSPECTION_DATE The date a property inspection is MM/DD/YYYY
performed.
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the 2
property based on brokers price opinion
or appraisal.
REPAIRED_PROP_VAL The amount the property would be worth 2
if repairs are completed pursuant to a
broker's price opinion or appraisal.
If applicable:
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
DELINQ_REASON_CODE The circumstances which caused a
borrower to stop paying on a loan. Code
indicates the reason why the loan is in
default for this cycle.
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed
With Mortgage Insurance Company. MM/DD/YYYY
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or
dollar signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company MM/DD/YYYY
Disbursed Claim Payment
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid 2 No
On Claim commas(,)
or dollar
signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance MM/DD/YYYY
Company
POOL_CLAIM_AMT Amount of Claim Filed With Pool 2 No commas(,) or
Insurance Company dollar signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was
Issued By The Pool Insurer MM/DD/YYYY
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance 2 No commas(,) or
Company dollar signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With MM/DD/YYYY
HUD
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or
dollar signs ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or
dollar signs ($)
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With MM/DD/YYYY
HUD
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or
dollar signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim MM/DD/YYYY
Payment
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or
dollar signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the MM/DD/YYYY
Veterans Admin
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim MM/DD/YYYY
Payment
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or
dollar signs ($)
Standard File Codes - Delinquency Reporting
The Loss Mit Type field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP-Borrower Assistance Program
o CO- Charge Off
o DIL-Deed-in-Lieu
o FFA-Formal Forbearance Agreement
o MOD-Loan Modification
o PRE-Pre-Sale
o SS-Short Sale
o MISC-Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply Xxxxx
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The Occupant Code field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The Property Condition field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Reason Code field should show the Reason for Delinquency
as follows:
Delinquency
Code Delinquency Description
----------- -----------------------
001 FNMA_Death of principal mortgagor
002 FNMA_Illness of principal mortgagor
003 FNMA_Illness of mortgagor's family
member
004 FNMA_Death of mortgagor's family
member
005 FNMA_Marital difficulties
006 FNMA_Curtailment of income
007 FNMA_Excessive Obligation
008 FNMA_Abandonment of property
009 FNMA_Distant employee transfer
011 FNMA_Property problem
012 FNMA_Inability to sell property
013 FNMA_Inability to rent property
014 FNMA_Military Service
015 FNMA_Other
016 FNMA_Unemployment
017 FNMA_Business failure
019 FNMA_Casualty loss
022 FNMA_Energy environment costs
023 FNMA_Servicing problems
026 FNMA_Payment adjustment
027 FNMA_Payment dispute
029 FNMA_Transfer of ownership pending
030 FNMA_Fraud
031 FNMA_Unable to contact borrower
INC FNMA_Incarceration
Please be advised that failure to comply with ANY or all of the guidelines
entailed herein may result in issuance of late reporting fees.
(C) Copyright Xxxxx Fargo Bank, Corporate Trust Services
Contact us with Reporting Questions: XXXXxxxxxxXXX@XxxxxXxxxx.xxx
Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Status Code field should show the Status of Default as
follows:
Status Code Status Description
----------- ------------------
09 Forbearance
17 Pre_foreclosure Sale Closing Plan
Accepted
24 Government Seizure
26 Refinance
27 Assumption
28 Modification
29 Charge_Off
30 Third Party Sale
31 Probate
32 Military Indulgence
43 Foreclosure Started
44 Deed_in_Lieu Started
49 Assignment Completed
61 Second Lien Considerations
62 Veteran's Affairs_No Bid
63 Veteran's Affairs_Refund
64 Veteran's Affairs_Buydown
65 Chapter 7 Bankruptcy
66 Chapter 11 Bankruptcy
67 Chapter 13 Bankruptcy
EXHIBIT 4
FORM 332 REALIZED LOSS REPORT
XXXXX FARGO BANK, N.A.
Purpose
To provide the Servicer with a form for the calculation of any Realized
Loss (or gain) as a result of a Mortgage Loan having been foreclosed and
Liquidated.
Distribution
The Servicer will prepare the form in duplicate and send the original
together with evidence of conveyance of title and appropriate supporting
documentation to the Trustee with the Monthly Accounting Reports which supports
the Mortgage Loan's removal from the Mortgage Loan Activity Report. The Servicer
will retain the duplicate for its own records.
Due Date
With respect to any liquidated Mortgage Loan, the form will be submitted
to the Trustee no later than the date on which statements are due to the Trustee
under Section 4.02 of this Agreement (the "Statement Date") in the month
following receipt of final liquidation proceeds and supporting documentation
relating to such liquidated Mortgage Loan; provided, that if such Statement Date
is not at least 30 days after receipt of final liquidation proceeds and
supporting documentation relating to such liquidated Mortgage Loan, then the
form will be submitted on the first Statement Date occurring after the 30th day
following receipt of final liquidation proceeds and supporting documentation.
Preparation Instructions
The numbers on the form correspond with the numbers listed below.
1. The actual Unpaid Principal Balance of the Mortgage Loan.
2. The Total Interest Due less the aggregate amount of servicing fee
that would have been earned if all delinquent payments had been made
as agreed.
3-7. Complete as necessary. All line entries must be supported by copies
of appropriate statements, vouchers, receipts, canceled checks,
etc., to document the expense. Entries not properly documented will
not be reimbursed to the Servicer.
8. Accrued Servicing Fees based upon the Stated Principal Balance of
the Mortgage Loan as calculated on a monthly basis.
9. The total of lines 1 through 8.
Exhibit 4: Calculation of Realized Loss/Gain Form 332_ Instruction Sheet
------------------------------------------------------------------------
NOTE: Do not net or combine items. Show all expenses individually and all
credits as separate line items. Claim packages are due on the remittance
report date. Late submissions may result in claims not being passed until
the following month. The Servicer is responsible to remit all funds
pending loss approval and /or resolution of any disputed items.
The numbers on the 332 form correspond with the numbers listed
below.
Liquidation and Acquisition Expenses:
-------------------------------------
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees
advanced is required.
2. The Total Interest Due less the aggregate amount of servicing fee
that would have been earned if all delinquent payments had been made
as agreed. For documentation, an Amortization Schedule from date of
default through liquidation breaking out the net interest and
servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage Loan as calculated on a monthly basis. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees
advanced is required.
4-12. Complete as applicable. Required documentation:
* For taxes and insurance advances - see page 2 of 332 form -
breakdown required showing period of coverage, base tax, interest,
penalty. Advances prior to default require evidence of servicer
efforts to recover advances.
* For escrow advances - complete payment history
(to calculate advances from last positive escrow balance forward)
* Other expenses - copies of corporate advance history showing all
payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the decision and
WFB's approved Servicing Officer certification
* Unusual or extraordinary items may require further documentation.
13. The total of lines 1 through 12.
Credits:
--------
14-21. Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid
instructions and Escrow Agent / Attorney Letter of Proceeds
Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332 form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial
proceeds and line (18b) for Part B/Supplemental proceeds.
Total Realized Loss (or Amount of Any Gain)
-------------------------------------------
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis ( ).
Exhibit 4: Calculation of Realized Loss/Gain Form 332
-----------------------------------------------------
Prepared by: __________________ Date: _______________
Phone: ______________________ Email Address:_____________________
|---------------------| |------------------------| |-------------------------|
|Servicer Loan No. | |Servicer Name | |Servicer Address |
| | | | | |
| | | | | |
----------------------- -------------------------- --------------------------
XXXXX FARGO BANK, N.A. Loan No._____________________________
Borrower's Name: _________________________________________________________
Property Address: ________________________________________________________
Liquidation Type: REO Sale 3rd Party Sale Short Sale Charge Off
Was this loan granted a Bankruptcy deficiency or cramdown Yes No
If "Yes", provide deficiency or cramdown amountZ_______________________________
Liquidation and Acquisition Expenses:
(1)Actual Unpaid Principal Balance of Mortgage Loan $______________ (1)
(2) Interest accrued at Net Rate ________________ (2)
(3) Accrued Servicing Fees ________________ (3)
(4) Attorney's Fees ________________ (4)
(5) Taxes (see page 2) ________________ (5)
(6) Property Maintenance ________________ (6)
(7) MI/Hazard Insurance Premiums (see page 2) ________________ (7)
(8) Utility Expenses ________________ (8)
(9) Appraisal/BPO ________________ (9)
(10) Property Inspections ________________ (10)
(11) FC Costs/Other Legal Expenses ________________ (11)
(12) Other (itemize) ________________ (12)
Cash for Keys__________________________ ________________ (12)
HOA/Condo Fees_______________________ ________________ (12)
______________________________________ ________________ (12)
Total Expenses $_______________ (13)
Credits:
(14) Escrow Balance $________________ (14)
(15) HIP Refund ________________ (15)
(16) Rental Receipts ________________ (16)
(17) Hazard Loss Proceeds ________________ (17)
(18) Primary Mortgage Insurance / Gov't Insurance ________________ (18a)
HUD Part A
________________ (18b)
HUD Part B
(19) Pool Insurance Proceeds ________________ (19)
(20) Proceeds from Sale of Acquired Property ________________ (20)
(21) Other (itemize) ________________ (21)
_________________________________________ ________________ (21)
Total Credits $________________ (22)
Total Realized Loss (or Amount of Gain) $________________ (23)
Escrow Disbursement Detail
Type Date Period of Total Base
(Tax /Ins.) Paid Coverage Paid Amount Penalties Interest
----------- ---- -------- ---- ------ --------- --------
