Contract
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GMAC
MORTGAGE CORPORATION,
as
HELOC Back-Up Servicer,
as
Issuing Entity
and
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
Indenture Trustee
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Dated
as of June 30, 2006
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|
HELOC
Mortgage Loans
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TABLE
OF
CONTENTS
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ARTICLE
I
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Definitions
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Section
1.01
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Definitions
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Section
1.02
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Other
Definitional Provisions.
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ARTICLE
II
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Representations
and Warranties
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Section
2.01
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Representations
and Warranties Regarding the HELOC Back-Up Servicer
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ARTICLE
III
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Back-Up
Servicing of HELOC Mortgage Loans
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Section
3.01
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Back-Up
Servicer to act as Successor HELOC Servicer
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Section
3.02
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HELOC
Back-Up Servicing Compensation
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ARTICLE
IV
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Reporting
Obligations
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Section
4.01
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Remittance
Reports.
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Section
4.02
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Annual
Statement as to Compliance
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Section
4.03
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Annual
Assessments as to Compliance
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Section
4.04
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Exchange
Act Reporting
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ARTICLE
V
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The
HELOC Back-Up Servicer
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Section
5.01
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Liability
of the HELOC Back-Up Servicer
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Section
5.02
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Merger
or Consolidation of or Assumption of the Obligations of the HELOC
Back-Up
Servicer
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Section
5.03
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Limitation
on Liability of the HELOC Back-Up Servicer and Others
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Section
5.04
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HELOC
Back-Up Servicer Not to Resign
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Section
5.05
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Delegation
of Duties
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Section
5.06
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Indemnification
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Section
5.07
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Compliance
with Applicable Anti-Terrorism and Anti-Money Laundering
Regulations.
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ARTICLE
VI
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Default
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Section
6.01
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Servicing
Default
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Section
6.02
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Indenture
Trustee to Act; Appointment of Successor
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Section
6.03
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Notification
to Class V-A Noteholders
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Section
6.04
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Waiver
of Defaults
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ARTICLE
VII
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Miscellaneous
Provisions
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Section
7.01
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Amendment
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Section
7.02
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GOVERNING
LAW
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Section
7.03
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Notices
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Section
7.04
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Severability
of Provisions
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Section
7.05
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Third-Party
Beneficiaries
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Section
7.06
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Counterparts
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Section
7.07
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Effect
of Headings and Table of Contents
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Section
7.08
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Termination
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Section
7.09
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No
Petition
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Section
7.10
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No
Recourse
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Section
7.11
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Consent
to Jurisdiction
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Section
7.12
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Certain
Terms Concerning Indenture Trustee.
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Section
7.13
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Third
Party Beneficiary..
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EXHIBIT
A - HELOC MORTGAGE LOAN SCHEDULE
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EXHIBIT
B - FORM OF CERTIFICATION TO BE PROVIDED BY THE
HELOC BACK-UP SERVICER WITH FORM 10-K
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EXHIBIT
C - FORM
OF CERTIFICATION TO BE PROVIDED BY THE HELOC BACK-UP SERVICER TO
DEPOSITOR
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This
HELOC Back-Up Servicing Agreement, dated as of June 30, 2006 (the “Agreement”),
among GMAC Mortgage Corporation, as HELOC Back-Up Servicer (the “HELOC Back-Up
Servicer”), American Home Mortgage Investment Trust 2006-2, as Issuing Entity
(the “Issuing Entity”) and Deutsche Bank Trust Company Americas, as Indenture
Trustee (the AIndenture
Trustee”).
W
I T
N E S S E T H T H A T :
WHEREAS,
pursuant to the terms of the Mortgage Loan Purchase Agreement, Bear Xxxxxxx
Asset Backed Securities I LLC (the ACompany”
or the ADepositor”)
will acquire the Mortgage Loans;
WHEREAS,
the Company will create American Home Mortgage Investment Trust 2006-2, a
Delaware statutory trust, and will transfer the Mortgage Loans to the Issuing
Entity;
WHEREAS,
pursuant to the terms of an Amended and Restated Trust Agreement dated as of
June 30, 2006 (the ATrust
Agreement”) among the Company, as depositor, Wilmington Trust Company, as owner
trustee (the AOwner
Trustee”) and the Securities Administrator, the Company will convey the Mortgage
Loans to the Issuing Entity in exchange for the Certificates (as defined
below);
WHEREAS,
pursuant to the terms of the Trust Agreement, the Issuing Entity will issue
and
transfer to or at the direction of the Depositor, the Trust Certificates, 2006-2
(the ACertificates”);
WHEREAS,
pursuant to the terms of an Indenture dated as of June 30, 2006 (the
AIndenture”)
among the Issuing Entity, the Securities Administrator and the Indenture
Trustee, the Issuing Entity will pledge the Mortgage Loans and issue and
transfer to or at the direction of the Company the Mortgage-Backed Notes, Series
2006-2 (the “Notes”); and
WHEREAS,
pursuant to the terms of this Agreement, the HELOC Back-Up Servicer will back-up
service the HELOC Mortgage Loans set forth on the HELOC Mortgage Loan Schedule
attached hereto as Exhibit A for the benefit of the Credit Enhancer and the
holders of the Class V-A Notes;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE
I
Definitions
Section
1.01 Definitions.
For all
purposes of this Agreement, except as otherwise expressly provided herein or
unless the context otherwise requires, capitalized terms not otherwise defined
herein shall have the meanings assigned to such terms in the Definitions
contained in Appendix A to the Indenture which is incorporated by reference
herein. All other capitalized terms used herein shall have the meanings
specified herein.
Section
1.02 Other
Definitional Provisions.
(a) All
terms
defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As
used
in this Agreement and in any certificate or other document made or delivered
pursuant hereto or thereto, accounting terms not defined in this Agreement
or in
any such certificate or other document, and accounting terms partly defined
in
this Agreement or in any such certificate or other document, to the extent
not
defined, shall have the respective meanings given to them under generally
accepted accounting principles. To the extent that the definitions of accounting
terms in this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Agreement or in any such
certificate or other document shall control.
(c) The
words
Ahereof,”
Aherein,”
Ahereunder”
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement;
Section and Exhibit references contained in this Agreement are references to
Sections and Exhibits in or to this Agreement unless otherwise specified; and
the term Aincluding”
shall mean Aincluding
without limitation”.
(d) The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as the feminine
and neuter genders of such terms.
(e) Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE
II
Representations
and Warranties
Section
2.01 Representations
and Warranties Regarding the HELOC Back-Up Servicer.
The
HELOC Back-Up Servicer represents and warrants to the Issuing Entity and for
the
benefit of the Indenture Trustee, as pledgee of the Mortgage Loans, the Credit
Enhancer, the Class V-A Noteholders and the Certificateholders as of the Cut-off
Date and the Closing Date, that:
(i) The
HELOC
Back-Up Servicer is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania and has the
corporate power to own its assets and to transact the business in which it
is
currently engaged. The HELOC Back-Up Servicer is duly qualified to do business
and is in good standing in each jurisdiction in which the character of the
business transacted by it or properties owned or leased by it requires such
qualification and in which the failure to so qualify would have a material
adverse effect on the business, properties, assets, or condition (financial
or
other) of the HELOC Back-Up Servicer or the validity or enforceability of the
HELOC Mortgage Loans;
(ii) The
HELOC
Back-Up Servicer has the power and authority to make, execute, deliver and
perform this Agreement and all of the transactions contemplated under this
Agreement, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement. When executed and
delivered, this Agreement will constitute the legal, valid and binding
obligation of the HELOC Back-Up Servicer enforceable in accordance with its
terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors’ rights
generally and by the availability of equitable remedies;
(iii) The
HELOC
Back-Up Servicer is not required to obtain the consent of any other Person
or
any consent, license, approval or authorization from, or registration or
declaration with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement, except for such consent, license, approval or authorization, or
registration or declaration, as shall have been obtained or filed, as the case
may be;
(iv) The
execution and delivery of this Agreement and the performance of the transactions
contemplated hereby by the HELOC Back-Up Servicer will not violate any provision
of any existing law or regulation or any order or decree of any court applicable
to the HELOC Back-Up Servicer or any provision of the certificate of
incorporation or bylaws of the HELOC Back-Up Servicer, or constitute a material
breach of any mortgage, indenture, contract or other agreement to which the
HELOC Back-Up Servicer is a party or by which the HELOC Back-Up Servicer may
be
bound;
(v) No
litigation or administrative proceeding of or before any court, tribunal or
governmental body is currently pending (other than litigation with respect
to
which pleadings or documents have been filed with a court, but not served on
the
HELOC Back-Up Servicer), or to the knowledge of the HELOC Back-Up Servicer
threatened, against the HELOC Back-Up Servicer or any of its properties or
with
respect to this Agreement or the Class V-A Notes or the Certificates which,
to
the knowledge of the HELOC Back-Up Servicer, has a reasonable likelihood of
resulting in a material adverse effect on the transactions contemplated by
this
Agreement; and
(vi) The
HELOC
Back-Up Servicer is a member of MERS in good standing, and will comply in all
material respects with the rules and procedures of MERS in connection with
the
servicing of the HELOC Mortgage Loans that are registered with
MERS.
The
foregoing representations and warranties shall survive any termination of the
HELOC Back-Up Servicer hereunder.
ARTICLE
III
Back-Up
Servicing of HELOCMortgage Loans
Section
3.01 Back-Up
Servicer to act as Successor HELOC Servicer .
In the
event of a Servicing Default by American Home Mortgage Servicing, Inc., as
HELOC
Servicer under the HELOC Servicing Agreement, or upon the occurrence of any
HELOC Servicer Termination Event and the direction of the Credit Enhancer in
connection therewith, the HELOC Back-Up Servicer shall terminate the rights
and
responsibilities of the HELOC Servicer under the HELOC Servicing Agreement
and
assume and succeed to the obligations of the HELOC Servicer under the HELOC
Servicing Agreement.
Notwithstanding
the foregoing or anything else to the contrary in this Agreement, for so long
as
a Servicing Default or HELOC Servicer Termination Event is not in effect as
provided in the HELOC Servicing Agreement and American Home Mortgage Servicing,
Inc. is the HELOC Servicer, the responsibilities of the HELOC Back-Up Servicer
shall be limited to review pursuant to Section 4.01 of this Agreement of the
Remittance Reports required of the HELOC Servicer pursuant to Section 4.01
of
the HELOC Servicing Agreement, and the HELOC Back-Up Servicer’s obligations
under this Section 3.01, and Sections 4.02, 4.03 and 4.04 of this
Agreement.
Section
3.02 HELOC
Back-Up Servicing Compensation.
a)
As
compensation for its activities hereunder, the HELOC Back-Up Servicer shall
be
entitled to receive the HELOC Back-Up Servicing Fee from full payments of
accrued interest on each HELOC Mortgage Loan. The HELOC Servicer shall remit
the
HELOC Back-Up Servicing Fee to the HELOC Back-Up Servicer on each related HELOC
Servicer Remittance Date.
(b) The
HELOC
Back-Up Servicer shall be required to pay all expenses it incurs in connection
with its back-up servicing activities under this Agreement and shall not be
entitled in connection with servicing activities under this Agreement to
reimbursement except as provided in this Agreement. Expenses to be paid by
the
HELOC Back-Up Servicer under this Subsection 3.02(b) shall include payment
of
the expenses of the accountants retained pursuant to Section 4.03.
ARTICLE
IV
Reporting
Obligations
Section
4.01 Remittance
Reports..
The
HELOC Back-Up Servicer shall receive, review and evaluate the Remittance Report
produced by the HELOC Servicer pursuant to Section 4.01 of the HELOC Servicing
Agreement. The HELOC Back-Up Servicer shall independently and separately
reconcile the information provided in the Remittance Report on a monthly basis
and coordinate corrective adjustments to the HELOC Servicer’s and HELOC Back-Up
Servicer’s records. The HELOC Back-Up Servicer shall complete its review,
evaluation and reconciliation of the Remittance Report provided by the HELOC
Servicer in accordance with this Section within two (2) Business Days of receipt
by the HELOC Back-Up Servicer of such Remittance Report from the HELOC Servicer.
In the event the HELOC Back-Up Servicer finds a discrepancy in the information
contained in the Remittance Report provided by the HELOC Servicer, the HELOC
Back-Up Servicer shall immediately notify the HELOC Servicer of such
discrepancy, and each of the HELOC Back-Up Servicer and the HELOC Servicer
shall
cooperate to take any corrective action necessary with respect to the Remittance
Report and the corresponding remittance furnished and remitted by the HELOC
Servicer with respect to the next succeeding Due Period.
Notwithstanding
the foregoing paragraph, the Indenture Trustee and the Securities Administrator
shall be protected in relying upon the amounts contained in the Remittance
Report produced by the HELOC Servicer pursuant to Section 4.01 of the HELOC
Servicing Agreement without any independent check or verification. The Indenture
Trustee and the Securities Administrator shall have no obligation to recompute,
recalculate or verify any information provided to it by the HELOC Servicer
pursuant to Section 4.01 of the HELOC Servicing Agreement.
Section
4.02 Annual
Statement as to Compliance.
(a) The
HELOC Back-Up Servicer, at its own expense, shall deliver (and the HELOC Back-Up
Servicer shall cause any Servicing Function Participant engaged by it to
deliver) to the Sponsor, the Securities Administrator and the Depositor, on
or
before March 15 of each year, commencing in March 2007, an Officer’s Certificate
stating, as to the signer thereof, that (A) a review of such party’s activities
during the preceding calendar year or portion thereof and of such party’s
performance under this HELOC Back-Up Servicing Agreement or such other
applicable agreement in the case of any Servicing Function Participant engaged
by it, has been made under such officer’s supervision and (B) to the best of
such officer’s knowledge, based on such review, such party has fulfilled all its
obligations under this HELOC Back-Up Servicing Agreement or such other
applicable agreement in the case of any Servicing Function Participant engaged
by it, in all material respects throughout such year or portion thereof, or,
if
there has been a failure to fulfill any such obligation in any material respect,
specifying each such failure known to such officer and the nature and status
thereof.
(b) The
HELOC
Back-Up Servicer shall include all annual statements of compliance received
by
it with its own annual statement of compliance to be submitted to the Securities
Administrator pursuant to this Section.
(c) Unless
available on the Securities Administrator’s website, copies of such HELOC
Back-Up Servicer annual statements of compliance shall be provided to any
Noteholder upon request, by the HELOC Back-Up Servicer or by the Securities
Administrator at the HELOC Back-Up Servicer’s expense if the HELOC Back-Up
Servicer failed to provide such copies (unless (i) the HELOC Back-Up Servicer
shall have failed to provide the Securities Administrator with such statement
or
(ii) the Securities Administrator shall be unaware of the HELOC Back-Up
Servicer’s failure to provide such statement).
(d) In
the
event the HELOC Back-Up Servicer or any Servicing Function Participant engaged
by parties is terminated or resigns pursuant to the terms of this Agreement,
or
any applicable agreement in the case of a Servicing Function Participant, as
the
case may be, such party shall provide an Officer’s Certificate pursuant to this
Section 4.02 with
respect to the period of time it was subject to this Agreement or any other
applicable agreement, as the case may be.
Section
4.03 Annual
Assessments
as to Compliance. (a)
By
March 15 of each year, commencing in March 2007, the HELOC Back-Up Servicer,
at
its own expense, shall furnish, and each such party shall cause any Servicing
Function Participant engaged by it to furnish, each at its own expense, to
the
Securities Administrator and the Sponsor, a report on an assessment of
compliance with the Relevant Servicing Criteria that contains (A) a statement
by
such party of its responsibility for assessing compliance with the Relevant
Servicing Criteria, (B) a statement that such party used the Relevant Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (C) such
party’s assessment of compliance with the Relevant Servicing Criteria as of and
for the fiscal year covered by the Form 10-K required to be filed pursuant
to
Section 4.04, including, if there has been any material instance of
noncompliance with the Relevant 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 party’s
assessment of compliance with the Relevant Servicing Criteria as of and for
such
period.
(b) No
later
than the end of each fiscal year for the Issuing Entity for which a Form 10-K
is
required to be filed, the HELOC Back-Up Servicer shall forward to the Securities
Administrator the name of each Servicing Function Participant engaged by it
and
what Relevant Servicing Criteria will be addressed in the report on assessment
of compliance prepared by such Servicing Function Participant. When the HELOC
Back-Up Servicer (or any Servicing Function Participant engaged by them) submits
it assessments to the Securities Administrator, such parties shall also at
such
time include the assessment (and attestation pursuant to Section 3.18) of each
Servicing Function Participant engaged by it.
(c) Promptly
after receipt of such report on assessment of compliance from the HELOC Back-Up
Servicer, the RMBS Servicer or any Servicing Function Participant engaged by
such parties the Sponsor shall review each such report and, if applicable,
consult with the HELOC Back-Up Servicer, the RMBS Servicer and any Servicing
Function Participant engaged by such parties as to the nature of any material
instance of noncompliance with the Relevant Servicing Criteria by each such
party.
(d)
The
HELOC Back-Up Servicer shall include all annual reports on assessment of
compliance with its own assessment of compliance received by it to be submitted
to the Securities Administrator pursuant to this Section.
(e) In
the
event the HELOC Back-Up Servicer or any Servicing Function Participant engaged
by parties is terminated or resigns pursuant to the terms of this Agreement,
or
any other applicable agreement, as the case may be, such party shall provide
a
report on assessment of compliance pursuant to this Section 4.03 with respect
to
the period of time it was subject to this Agreement or any applicable
sub-servicing agreement. as the case may be.
Section
4.04 Exchange
Act Reporting.
The
HELOC
Back-Up Servicer shall and shall cause any Servicing Function Participant
engaged by such party to, provide to the Certifying Person, by March 15 of
each
year in which the Issuing Entity is subject to the reporting requirements of
the
Exchange Act and otherwise within a reasonable period of time upon request,
a
certification (each, a “Back-Up Certification”), in the form attached hereto as
Exhibit C, upon which the Certifying Person, the entity for which the Certifying
Person acts as an officer, and such entity’s officers, directors and Affiliates
(collectively with the Certifying Person, “Certification Parties”) can
reasonably rely. In the event the HELOC Back-Up Servicer or any Servicing
Function Participant engaged by it, is terminated or resigns pursuant to the
terms of this Agreement, or any other applicable agreement, as the case may
be,
such party shall provide a Back-Up Certification to the Certifying Person
pursuant to this Section 4.04 with respect to the period of time it was subject
to this HELOC Back-Up Servicing Agreement or any other applicable agreement,
as
the case may be.
ARTICLE
V
The
HELOC
Back-Up Servicer
Section
5.01 Liability
of the HELOC Back-Up Servicer.
The
HELOC Back-Up Servicer shall be liable in accordance herewith only to the extent
of the obligations specifically imposed upon and undertaken by the HELOC Back-Up
Servicer herein.
Section
5.02 Merger
or Consolidation of or Assumption of the Obligations of the HELOC Back-Up
Servicer.
Any
corporation or other entity (including without limitation a limited liability
company) into which the HELOC Back-Up Servicer may be merged or converted or
with which it may be consolidated, or any corporation or other entity (including
without limitation a limited liability company) resulting from any merger,
conversion or consolidation to which the HELOC Back-Up Servicer shall be a
party, or any corporation or other entity (including without limitation a
limited liability company) succeeding to the business of the HELOC Back-Up
Servicer, shall be the successor of the HELOC Back-Up 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 to the HELOC Back-Up Servicer shall be
qualified to sell mortgage loans to and service mortgage loans for Xxxxxx Mae
or
Xxxxxxx Mac.
The
HELOC
Back-Up Servicer may assign its rights and delegate its duties and obligations
under this Agreement; provided,
that
the Person accepting such assignment or delegation (which may include Bank
of
America, N.A. or any affiliate of Bank of America, N.A.) shall be a Person
which
is qualified to service mortgage loans on behalf of Xxxxxx Mae or Xxxxxxx Mac,
and (except in the case of Bank of America, N.A. or any affiliate of Bank of
America, N.A.) is reasonably satisfactory to the Indenture Trustee (as pledgee
of the Mortgage Loans) and the Company (in its sole discretion), is willing
to
service the HELOC Mortgage Loans and executes and delivers to the Indenture
Trustee and the Company an agreement, in form and substance reasonably
satisfactory to the Indenture Trustee and the Company, which contains an
assumption by such Person of the due and punctual performance and observance
of
each covenant and condition to be performed or observed by the HELOC Back-Up
Servicer under this Agreement; provided,
further,
that
each Rating Agency’s rating of the applicable Grantor Trust Certificates or the
Class V-A Notes in effect immediately prior to such assignment and delegation
will not be qualified, reduced, or withdrawn as a result of such assignment
and
delegation (as evidenced by a letter to such effect from each Rating Agency)
or
considered to be below investment grade.
Section
5.03 Limitation
on Liability of the HELOC Back-Up Servicer and Others.
Neither
the HELOC Back-Up Servicer nor any of the directors or officers or employees
or
agents of the HELOC Back-Up Servicer shall be under any liability to the
Company, the Issuing Entity, the Owner Trustee, the Securities Administrator,
the Indenture Trustee or the Class V-A Noteholders 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 HELOC Back-Up Servicer or any such Person
against any liability which would otherwise be imposed by reason of its willful
misfeasance, bad faith or gross negligence in the performance of its duties
hereunder or by reason of its reckless disregard of its obligations and duties
hereunder. The HELOC Back-Up Servicer and any director or officer or employee
or
agent of the HELOC Back-Up 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 HELOC Back-Up Servicer and any director or officer or employee or agent
of
the HELOC Back-Up Servicer shall be indemnified by the Trust Estate and held
harmless against any loss, liability or expense incurred in connection with
any
legal action relating to this Agreement or the Class V-A Notes, including any
amount paid to the Owner Trustee, the Securities Administrator or the Indenture
Trustee pursuant to Section 5.06(b), other than any loss, liability or expense
related to any specific HELOC Mortgage Loan or HELOC Mortgage Loans (except
as
any such loss, liability or expense shall be otherwise reimbursable pursuant
to
this Agreement) and any loss, liability or expense incurred by reason of its
willful misfeasance, bad faith or gross negligence in the performance of its
duties hereunder or by reason of its reckless disregard of its obligations
and
duties hereunder. The HELOC Back-Up 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 HELOC Mortgage Loans in accordance with this
Agreement, and which in its opinion may involve it in any expense or liability;
provided,
however,
that
the HELOC Back-Up Servicer may in its sole discretion undertake any such action
which it may deem necessary or desirable in respect of this Agreement, and
the
rights and duties of the parties hereto and the interests of the Securityholders
hereunder. In such event, the reasonable legal expenses and costs of such action
and any liability resulting therefrom shall be expenses, costs and liabilities
of the Trust Estate, and the HELOC Back-Up Servicer shall be entitled to be
reimbursed therefor. The HELOC Back-Up Servicer’s right to indemnity or
reimbursement pursuant to this Section 5.03 shall survive any resignation or
termination of the HELOC Back-Up Servicer pursuant to Sections 5.04 or 6.01
with
respect to any losses, expenses, costs or liabilities arising prior to such
resignation or termination (or arising from events that occurred prior to such
resignation or termination).
Section
5.04 HELOC
Back-Up Servicer Not to Resign.
Subject
to the provisions of Section 5.02, the HELOC Back-Up Servicer shall not resign
from the obligations and duties hereby imposed on it except (i) upon
determination that the performance of its obligations or duties hereunder are
no
longer permissible under applicable law (any such determination permitting
the
resignation of the HELOC Back-Up Servicer shall be evidenced by an Opinion
of
Counsel to such effect delivered to the Indenture Trustee) or (ii) upon
satisfaction of the following conditions: (a) the HELOC Back-Up Servicer has
proposed a successor back-up servicer to the Depositor in writing and such
proposed successor back-up servicer is reasonably acceptable to the Depositor;
and (b) each Rating Agency shall have delivered a letter (obtained by and at
the
expense of the HELOC Back-Up Servicer) to the Depositor prior to the appointment
of the successor back-up servicer stating that the proposed appointment of
such
successor back-up servicer as HELOC Back-Up Servicer hereunder will not result
in the reduction, qualification or withdrawal of the then current rating of
the
Class V-A Notes; provided,
however,
that no
such resignation by the HELOC Back-Up Servicer shall become effective until
such
successor back-up servicer shall have assumed the HELOC Back-Up Servicer’s
responsibilities and obligations hereunder or another successor HELOC Back-Up
Servicer has been appointed in accordance with Section 6.02 and has accepted
such appointment. Any such resignation shall not relieve the HELOC Back-Up
Servicer of responsibility for any of the obligations specified in Sections
6.01
and 6.02 as obligations that survive the resignation or termination of the
HELOC
Back-Up Servicer. The HELOC Back-Up Servicer shall have no claim (whether by
subrogation or otherwise) or other action against any Noteholder for any amounts
paid by the HELOC Back-Up Servicer pursuant to any provision of this
Agreement.
Section
5.05 Delegation
of Duties.
In the
ordinary course of business, the HELOC Back-Up Servicer at any time may delegate
any of its duties hereunder to any Person, including any of its Affiliates,
who
agrees to conduct such duties in accordance with standards comparable to those
with which the HELOC Back-Up Servicer complies pursuant to Section 3.01. Such
delegation shall not relieve the HELOC Back-Up Servicer of its liabilities
and
responsibilities with respect to such duties and shall not constitute a
resignation within the meaning of Section 5.04.
Section
5.06 Indemnification.
The
HELOC Back-Up Servicer agrees to indemnify the Indenture Trustee, the Credit
Enhancer, the Securities Administrator and the Owner Trustee for, and to hold
the Indenture Trustee, the Securities Administrator and the Owner Trustee,
as
the case may be, harmless against, any claim, tax, penalty, loss, liability
or
expense of any kind whatsoever, incurred without negligence (gross negligence
in
the case of the Owner Trustee) or willful misconduct on its part, arising out
of, or in connection with, the failure by the HELOC Back-Up Servicer to perform
its duties in compliance with this Agreement, including the costs and expenses
(including reasonable legal fees and expenses) of defending against any claim
in
connection with the exercise or performance of any of its powers or duties
under
any Basic Document, provided that:
(i) with
respect to any such claim, the Indenture Trustee, the Credit Enhancer, the
Securities Administrator or Owner Trustee, as the case may be, shall have given
the HELOC Back-Up Servicer written notice thereof promptly after the Indenture
Trustee, the Securities Administrator or Owner Trustee, as the case may be,
shall have actual knowledge thereof, it being understood that failure to give
such notice shall not relieve the HELOC Back-Up Servicer of its indemnification
obligations hereunder;
(ii) while
maintaining control over its own defense, the Company, the Credit Enhancer,
the
Indenture Trustee, the Securities Administrator or Owner Trustee, as the case
may be, shall cooperate and consult fully with the HELOC Back-Up Servicer in
preparing such defense; and
(iii) notwithstanding
anything in this Agreement to the contrary, the HELOC Back-Up Servicer shall
not
be liable for settlement of any claim by the Indenture Trustee, the Credit
Enhancer, the Securities Administrator or the Owner Trustee, as the case may
be,
entered into without the prior consent of the HELOC Back-Up Servicer, which
consent shall not be unreasonably withheld or delayed.
This
Section 5.06 shall survive the termination of this Agreement and the earlier
removal or resignation of the Indenture Trustee.
Section
5.07 Compliance
with Applicable Anti-Terrorism and Anti-Money Laundering
Regulations. In
order
to comply with laws, rules and regulations applicable to banking institutions,
including those relating to the funding of terrorist activities and money
laundering, the Indenture Trustee is required to obtain, verify and record
certain information relating to individuals and entities which maintain a
business relationship with the Indenture Trustee. Accordingly, each of the
parties agrees to provide to the Indenture 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 document and such other identifying
documentation as may be available for such party.
ARTICLE
VI
Default
Section
6.01 Servicing
Default.
If any
one of the following events (each, a AServicing
Default”) shall occur and be continuing:
(i) Failure
on the part of the HELOC Back-Up Servicer duly to observe or perform in any
material respect any representation or warranty of the HELOC Back-Up Servicer
or
any other covenants or agreements of the HELOC Back-Up Servicer set forth in
this Agreement, which failure, in each case, materially and adversely affects
the interests of Class V-A Noteholders and which continues unremedied for a
period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, and stating that such notice is a
ANotice
of
Default” hereunder, shall have been given to the HELOC Back-Up Servicer by the
Company, the Issuing Entity, the Credit Enhancer or the Indenture Trustee;
or
(ii) Failure
on the part of the HELOC Back-Up Servicer duly to deliver any annual statement
of compliance pursuant to Section 4.02 or annual assessment of compliance
pursuant to Section 4.03 which continues uncured for a period of three (3)
Business Days after the date on which written notice of such failure, requiring
the same to remedied, and stating that such notice is a “Notice of Default”
hereunder, shall have been given to the HELOC Back-Up Servicer by the Sponsor,
the Securities Administrator or the Depositor; or
(iii) The
entry
against the HELOC Back-Up Servicer of a decree or order by a court or agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a trustee, conservator, receiver or liquidator in any insolvency,
conservatorship, receivership, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding up or liquidation of
its
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(iv) The
HELOC
Back-Up Servicer shall voluntarily go into liquidation, consent to the
appointment of a conservator, receiver, liquidator or similar person in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to the HELOC Back-Up Servicer or of or
relating to all or substantially all of its property, or a decree or order
of a
court, agency or supervisory authority having jurisdiction in the premises
for
the appointment of a conservator, receiver, liquidator or similar person in
any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the HELOC Back-Up Servicer and such decree or order
shall have remained in force undischarged, unbonded or unstayed for a period
of
60 days; or the HELOC Back-Up 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;
then,
and
in every such case, so long as a Servicing Default shall not have been remedied
by the HELOC Back-Up Servicer, either the holders of at least 51% of the
aggregate Note Principal Balance of the Class V-A Notes or the Issuing Entity
may, or may direct the Indenture Trustee in writing to, by notice then given
to
the HELOC Back-Up Servicer, terminate all of the rights and obligations of
the
HELOC Back-Up Servicer under this Agreement other than its right to receive
servicing compensation and expenses for back-up servicing the HELOC Mortgage
Loans hereunder during any period prior to the date of such termination and
the
Issuing Entity may exercise any and all other remedies available at law or
equity. Any such notice to the HELOC Back-Up Servicer shall also be given to
each Rating Agency, the Credit Enhancer, the Company and the Issuing Entity.
On
or after the receipt by the HELOC Back-Up Servicer of such written notice,
all
authority and power of the HELOC Back-Up Servicer under this Agreement, whether
with respect to the Class V-A Notes or the HELOC Mortgage Loans or otherwise,
shall pass to and be vested in the Indenture Trustee, pursuant to and under
this
Section 6.01; and, without limitation, the Indenture Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the HELOC Back-Up
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 of each HELOC Mortgage Loan and related
documents, or otherwise. Notwithstanding the foregoing, the parties hereto
and
the Securityholders by their acceptance of any Security, acknowledge and agree
that there will be a period of transition before the actual back-up servicing
functions can be fully transferred to the Indenture Trustee, as successor HELOC
Back-Up Servicer, or to a successor HELOC Back-Up Servicer appointed by the
Indenture Trustee pursuant to the provisions hereof, provided, that the
Indenture Trustee shall use its reasonable best efforts to succeed to the actual
back-up servicing functions to the extent specified below or find a successor
HELOC Back-Up Servicer as soon as possible but no later than 90 days after
such
termination; provided that the Indenture Trustee shall continue to have the
right to appoint a successor HELOC Back-Up Servicer after such 90-day period
in
accordance with Section 6.02. If the Indenture Trustee is unable to appoint
a
successor HELOC Back-Up Servicer in accordance with this Section using
commercially reasonable efforts within such 90-day period (provided, however,
if
the HELOC Servicer has not been terminated, the HELOC Servicer shall cooperate
and assist the Indenture Trustee in finding a successor HELOC Back-Up Servicer)
and succeeds to the actual back-up servicing functions of the HELOC Back-Up
Servicer herein, it shall not assume the obligations of the HELOC Back-Up
Servicer under Section 3.01 and Article IV herein and under the second paragraph
of Section 3.01(a) of the HELOC Servicing Agreement. The HELOC Back-Up Servicer
agrees to cooperate with the Indenture Trustee in effecting the termination
of
the responsibilities and rights of the HELOC Back-Up Servicer hereunder,
including, without limitation, the transfer to the Indenture Trustee or the
successor HELOC Back-Up Servicer for administration by it of (i) the property
and amounts which are then or should be part of the Trust Estate or which
thereafter become part of the Trust Estate; (ii) originals or copies of all
documents of the HELOC Back-Up Servicer reasonably requested by the Indenture
Trustee to enable it to assume the HELOC Back-Up Servicer’s duties thereunder
and under the HELOC Servicing Agreement; (iii) the rights and obligations of
the
HELOC Back-Up Servicer under the HELOC Servicing Agreement with respect to
the
HELOC Mortgage Loans; (iv) all cash amounts which shall at the time be deposited
by the HELOC Back-Up Servicer or should have been deposited to the Collection
Account or the Payment Account or thereafter be received with respect to the
HELOC Mortgage Loans; and (v) all 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 Indenture Trustee or any successor
HELOC Back-Up Servicer to correct any errors or insufficiencies in the servicing
data or otherwise to enable the Indenture Trustee or successor HELOC Back-Up
Servicer to back-up service the HELOC Mortgage Loans properly and effectively.
All reasonable costs and expenses (including, but not limited to, attorneys’
fees and disbursements) incurred by the Indenture Trustee or a successor HELOC
Back-Up Servicer in connection with its succession as HELOC Back-Up Servicer,
including amending this Agreement to reflect such succession as HELOC Back-Up
Servicer pursuant to this Section 6.01 shall be paid by the predecessor HELOC
Back-Up Servicer (or if the predecessor HELOC Back-Up Servicer is the Indenture
Trustee, the initial HELOC Back-Up Servicer) upon presentation of reasonable
documentation of such costs and expenses.
The
Trustee or its affiliates are permitted to receive additional compensation
that
could be deemed to be in the Trustee’s economic self-interest for (i) serving as
investment adviser, administrator, shareholder, servicing agent, custodian
or
sub-custodian with respect to certain of the Eligible Investments, (ii) using
affiliates to effect transactions in certain Eligible Investments and (iii)
effecting transactions in certain Eligible Investments. Such compensation is
not
payable or reimbursable under this Agreement. The Trustee shall have no
obligation to invest or reinvest any funds held in the Reserve Fund in the
absence of timely written direction and shall not be liable for the selection
of
investments or for investment losses incurred thereon.
Notwithstanding
any termination of the activities of the HELOC Back-Up Servicer hereunder,
the
HELOC Back-Up Servicer shall be entitled to receive, out of any late collection
of a payment on a HELOC Mortgage Loan which was due prior to the notice
terminating the HELOC Back-Up Servicer’s
rights
and obligations hereunder and received after such notice, its HELOC Back-Up
Servicing Fee in respect thereof, and any other amounts payable to the HELOC
Back-Up Servicer hereunder the entitlement to which arose prior to the
termination of its activities hereunder.
The
HELOC
Back-Up Servicer shall immediately notify the Indenture Trustee and the Owner
Trustee in writing of any Servicing Default.
Section
6.02 Indenture
Trustee to Act; Appointment of Successor.
b)
Within
90 days of the time the HELOC Back-Up Servicer sends a notice pursuant to clause
(i) of Section 5.04, the Indenture Trustee on behalf of the Class V-A
Noteholders and the Class V-A Certificateholders (if it is unable to appoint
a
successor HELOC Back-Up Servicer in accordance with Section 6.01), or other
successor appointed in accordance with this Section 6.02, shall be the successor
in all respects to the HELOC Back-Up Servicer in its capacity as HELOC Back-Up
Servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the HELOC Back-Up Servicer by the terms and
provisions hereof, including but not limited to the provisions of Article V;
provided, however, that the Indenture Trustee as successor HELOC Back-Up
Servicer shall not assume the obligations of the HELOC Back-Up Servicer under
Section 3.01 and Article IV herein and under the second paragraph of Section
3.01(a) of the HELOC Servicing Agreement. Nothing in this Agreement shall be
construed to permit or require the Indenture Trustee or any other successor
HELOC Back-Up Servicer to (i) be responsible or accountable for any act or
omission of the predecessor HELOC Back-Up Servicer, or (ii) be responsible
for
the representations and warranties of the HELOC Back-Up Servicer, except as
provided herein. As compensation therefor, the Indenture Trustee shall be
entitled to such compensation as the HELOC Back-Up Servicer would have been
entitled to hereunder if no such notice of termination had been given.
Notwithstanding the above, (i) if the Indenture Trustee is unwilling to act
as
successor HELOC Back-Up Servicer, or (ii) if the Indenture Trustee is legally
unable so to act, the Indenture Trustee on behalf of the Class V-A Noteholders
may (in the situation described in clause (i)) or shall (in the situation
described in clause (ii)) appoint or petition a court of competent jurisdiction
to appoint any established housing and home finance institution, bank or other
mortgage loan servicer having a net worth of not less than $10,000,000 as the
successor to the HELOC Back-Up Servicer hereunder in the assumption of all
or
any part of the responsibilities, duties or liabilities of the HELOC Back-Up
Servicer hereunder; provided that the appointment of any such successor HELOC
Back-Up Servicer (i) will not result in the qualification, reduction or
withdrawal of the ratings assigned to the Class V-A Notes by the Rating Agencies
without giving effect to the Policy (as evidenced by a letter to such effect
delivered by the Rating Agencies) and (ii) is consented to in writing by the
Credit Enhancer. Pending appointment of a successor to the HELOC Back-Up
Servicer hereunder, unless the Indenture Trustee is prohibited by law from
so
acting or is unwilling to act as such, the Indenture Trustee shall act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the successor shall be entitled to receive compensation out of
payments on HELOC Mortgage Loans in an amount equal to the compensation which
the HELOC Back-Up Servicer would otherwise have received pursuant to this
Agreement (or such lesser compensation as the Indenture Trustee and such
successor shall agree). The appointment of a successor HELOC Back-Up Servicer
shall not affect any liability of the predecessor HELOC Back-Up Servicer which
may have arisen under this Agreement prior to its termination as HELOC Back-Up
Servicer (including, without limitation, to indemnify the Indenture Trustee
pursuant to Section 5.06), nor shall any successor HELOC Back-Up Servicer be
liable for any acts or omissions of the predecessor HELOC Back-Up Servicer
or
for any breach by such HELOC Back-Up Servicer of any of its representations
or
warranties contained herein or in any related document or agreement. The
Indenture Trustee and such successor shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such
succession.
In
connection with the termination or resignation of the HELOC Back-Up Servicer
hereunder, the successor HELOC Back-Up Servicer, including the Indenture Trustee
if the Indenture Trustee is acting as successor HELOC Back-Up 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.
(b) Any
successor, including the Indenture Trustee on behalf of the Class V-A
Noteholders, to the HELOC Back-Up Servicer as back-up servicer shall during
the
term of its service as back-up servicer continue to back-up service and
administer the HELOC Mortgage Loans for the benefit of the
Securityholders.
(c) Any
successor HELOC Back-Up Servicer, including the Indenture Trustee on behalf
of
the Class V-A Noteholders, shall not be deemed to be in default or to have
breached its duties hereunder if the predecessor HELOC Back-Up Servicer shall
fail to cooperate with any required succession hereunder.
(d) Notwithstanding
anything else herein to the contrary, in no event shall the Indenture Trustee
be
liable for any servicing fee or any differential in the amount of the servicing
fee paid hereunder and the amount necessary to induce any successor HELOC
Back-Up Servicer to act as a successor HELOC Back-Up Servicer under this
Agreement and the transactions set forth or provided for herein.
Section
6.03 Notification
to Class V-A Noteholders.
Upon
any termination or appointment of a successor to the HELOC Back-Up Servicer
pursuant to this Article VI or Section 5.04, the Indenture Trustee shall give
prompt written notice thereof to the Class V-A Noteholders, the Owner Trustee,
the Securities Administrator, the Company, the Issuing Entity and the Rating
Agencies.
Section
6.04 Waiver
of Defaults.
The
Indenture Trustee shall transmit by mail to the Credit Enhancer and all Class
V-A Noteholders, within 10 days after the occurrence of any Servicing Default
known to the Indenture Trustee, unless such Servicing Default shall have been
cured, notice of each such Servicing Default hereunder of which a Responsible
Officer of the Indenture Trustee has actual knowledge. The Credit Enhancer,
or
the holders of at least 51% of the aggregate Note Principal Balance of the
Class
V-A Notes, with the consent of the Credit Enhancer, may waive any default by
the
HELOC Back-Up Servicer in the performance of its obligations hereunder and
the
consequences thereof, except a default in the making of or the causing to be
made any required distribution on the Class V-A Notes. Upon any such waiver
of a
past default, such default shall be deemed to cease to exist, and any Servicing
Default arising therefrom shall be deemed to have been timely 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. The HELOC Back-Up Servicer shall give notice of any such
waiver to the Rating Agencies.
ARTICLE
VII
Miscellaneous
Provisions
Section
7.01 Amendment.
This
Agreement may be amended from time to time by the parties hereto, provided
that
any amendment be accompanied by a letter from the Rating Agencies that the
amendment will not result in the downgrading, qualification or withdrawal of
the
rating then assigned to the Class V-A Notes.
Section
7.02 GOVERNING
LAW.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section
7.03 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if when delivered to:
(a) in
the
case of the HELOC Back-Up Servicer:
GMAC
Mortgage Corporation
000
Xxxxxx Xx.
Xxxxxxx,
XX 00000
Attention:
General Counsel
Telecopier
No.: 215.682.1467
(b) in
the
case of Rating Agencies:
Standard
& Poor’s, a division of The XxXxxx-Xxxx Companies, Inc.
00
Xxxxx
Xxxxxx - 41st
Floor
Attention:
Asset Backed Surveillance Group
Xxxxx’x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
(c) in
the
case of the Owner Trustee:
Wilmington
Trust Company
Xxxxxx
Square North
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Administration
(d) in
the
case of the Issuing Entity, to American Home Mortgage Investment Trust
2006-2:
c/o
American Home Mortgage Securities LLC
000
Xxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention:
General Counsel
(e) in
the
case of the Indenture Trustee: its Corporate Trust Office
(f) in
the
case of the Credit Enhancer,
CIFG
Assurance North America, Inc.
000
Xxxxx
Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
(g) in
the
case of the Securities Administrator:
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx
00
Xxxxxxxx
, Xxxxxxxx 00000
(or,
in
the case of overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
21045) (Attention: Corporate Trust Services - AHMIT 2006-2), facsimile no.:
(000) 000-0000, or such other address as may hereafter be furnished to the
other
parties hereto in writing;)
or,
as to
each party, at such other address as shall be designated by such party in a
written notice to each other party. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid,
at
the address of such Noteholder as shown in the Note Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Noteholder receives such
notice. Any notice or other document required to be delivered or mailed by
the
Indenture Trustee to the Rating Agencies shall be given on a reasonable efforts
basis and only as a matter of courtesy and accommodation and the Indenture
Trustee shall have no liability for failure to deliver such notice or document
to the Rating Agencies.
The
HELOC
Back-Up Servicer shall designate a Person who shall be available to the Credit
Enhancer to provide reasonable access to information regarding the HELOC
Mortgage Loans.
Section
7.04 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 Class V-A Notes or the rights of the Class V-A Noteholders
thereof.
Section
7.05 Third-Party
Beneficiaries.
This
Agreement will inure to the benefit of and be binding upon the parties hereto,
the Class V-A Noteholders, the Class V-A Certificateholders, the Credit
Enhancer, the Owner Trustee, the Securities Administrator, the Depositor and
its
any of their officers and directors, and their respective successors and
permitted assigns. Except as otherwise provided in this Agreement, no other
Person will have any right or obligation hereunder. The Indenture Trustee shall
have the right to exercise all rights of the Issuing Entity under this
Agreement. The Depositor and its officers and directors (in their corporate
or
individual capacity) shall have the right to bring an action against the HELOC
Back-Up Servicer as it relates to a failure of the HELOC Back-Up Servicer to
comply with its obligations under Section 4.04 of this Agreement.
Section
7.06 Counterparts.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section
7.07 Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section
7.08 Termination.
The
respective obligations and responsibilities of the HELOC Back-Up Servicer and
the Issuing Entity created hereby shall terminate upon the satisfaction and
discharge of the Indenture pursuant to Section 4.10 thereof.
Section
7.09 No
Petition.
The
HELOC Back-Up Servicer, by entering into this Agreement, hereby covenants and
agrees that it will not at any time institute against the Issuing Entity, or
join in any institution against the Issuing Entity, any bankruptcy proceedings
under any United States federal or state bankruptcy or similar law in connection
with any obligations of the Issuing Entity. This section shall survive the
satisfaction and discharge of the Indenture by one year.
Section
7.10 No
Recourse.
The
HELOC Back-Up Servicer acknowledges that no recourse may be had against the
Issuing Entity, except as may be expressly set forth in this
Agreement.
Section
7.11 Consent
to Jurisdiction.
The
parties to this Agreement each hereby irrevocably submits to the non exclusive
jurisdiction of any New York State or federal court sitting in the Borough
of
Manhattan in The City of New York in any action or proceeding arising out of
or
relating to this Agreement or the transactions contemplated hereby, and all
such
parties hereby irrevocably agree that all claims in respect of such action
or
proceeding may be heard and determined in such New York State or federal court
and hereby irrevocably waive, to the fullest extent that they may legally do
so,
the defense of an inconvenient forum to the maintenance of such action or
proceeding. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section
7.12 Certain
Terms Concerning Indenture Trustee. The
Indenture Trustee is entering into this Agreement not in its individual capacity
but solely in its capacity as trustee under the Indenture and all
indemnifications and protections from liability provided to the Indenture
Trustee under the Indenture shall, with out limitation, extend to the Indenture
Trustee hereunder. The Indenture Trustee shall have no obligations or duties
under this Agreement other than those duties expressly set forth herein as
duties on its part to be performed hereunder, and no implied duties shall be
read into this Agreement against the Indenture Trustee. The Indenture Trustee
is
not responsible for the terms of this Agreement or their sufficiency for any
purpose.
Section
7.13 Third
Party Beneficiary. For
purposes of this Agreement, any Credit Enhancer shall be considered a third
party beneficiary to this Agreement entitled to all the rights and benefits
accruing to any Credit Enhancer herein as if it were a direct party to this
Agreement.
IN
WITNESS WHEREOF, the HELOC Back-Up Servicer, the Issuing Entity and the
Indenture Trustee have caused this Agreement to be duly executed by their
respective officers or representatives all as of the day and year first above
written.
|
GMAC
MORTGAGE CORPORATION
as
HELOC Back-Up Servicer
|
||
|
By:
|
/s/ Xxxxxx X . Xxxxxxx | |
|
Name:
|
Xxxxxx X . Xxxxxxx | |
|
Title:
|
Vice President | |
|
AMERICAN
HOME MORTGAGE
INVESTMENT
TRUST 2006-2,
as
Issuing Entity
|
||
|
WILMINGTON
TRUST COMPANY, not in its
individual
capacity, but solely as Owner Trustee
|
||
|
By:
|
/s/ Xxxxx X. Xxxxxx | |
|
Name:
|
Xxxxx X. Xxxxxx | |
|
Title:
|
Assistant Vice President | |
|
DEUTSCHE
BANK TRUST COMPANY
AMERICAS,
not in its individual capacity but
solely
as Indenture Trustee
|
||
|
By:
|
/s/ Xxxxx Xxxxxxxxx | |
|
Name:
|
Xxxxx Xxxxxxxxx | |
|
Title:
|
Authorized Signer | |
|
By:
|
/s/ Xxxxxxx Xxxxx | |
|
Name:
|
Xxxxxxx Xxxxx | |
|
Title:
|
Vice President |
EXHIBIT
A
HELOC
MORTGAGE LOAN SCHEDULE
(FILED
MANUALLY)
EXHIBIT
B
FORM
OF
CERTIFICATION TO BE PROVIDED BY THE HELOC BACK-UP SERVICER
WITH
FORM
10-K
Mortgage-Backed
Notes, Series 2006-2
I,
[identify the certifying individual], certify that:
l. Based
on
my knowledge, the information in the Annual Statement of Compliance and the
Annual Independent Public Accountants’ Servicing Report submitted to the
Depositor, the Indenture Trustee, the Credit Enhancer and the Securities
Administrator taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made,
not
misleading as of the last day of the period covered by the Annual Statement
of
Compliance;
2. Based
on
my knowledge, the servicing information required to be provided to the
Depositor, the Indenture Trustee, the Credit Enhancer and the Securities
Administrator by the HELOC Back-Up Servicer under the Agreement is included
in
these reports;
3. I
am
responsible for reviewing the activities performed by the HELOC Back-Up Servicer
under the Agreement and based upon the review required under the Agreement,
and
except as disclosed in the report, the HELOC Back-Up Servicer has fulfilled
its
obligations under the Agreement; and
4. I
have
disclosed to the Registrant’s certified public accountants all significant
deficiencies relating to the HELOC Back-Up Servicer’s compliance with the
minimum servicing standards in accordance with a review conducted in compliance
with the Uniform Single Attestation Program for Mortgage Bankers or similar
standard as set forth in the Agreement.
Capitalized
terms used but not defined herein have the meanings ascribed to them in Appendix
A to the Indenture, dated as of June 30, 2006, among American Home Mortgage
Investment Trust 2006-2, as Issuing Entity, Xxxxx Fargo Bank, N.A. as securities
administrator and Deutsche Bank Trust Company Americas, as indenture
trustee.
GMAC
MORTGAGE CORPORATION
By:____________________________
Name:
Title:
Date:
EXHIBIT
C
FORM
OF
CERTIFICATION TO BE
PROVIDED
BY THE HELOC BACK-UP SERVICER TO DEPOSITOR
The
HELOC
Back-Up Servicer 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 the period covered
by the Annual Report (collectively with the Annual Report, the “Reports”),
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 the Annual
Report;
3. Based
on
my knowledge, the distribution information required to be provided by the HELOC
Back-Up Servicer under the HELOC Back-Up Servicing Agreement for inclusion
in
the Reports is included in the Reports;
4. I
am
responsible for reviewing the activities performed by the HELOC Back-Up Servicer
under the HELOC Back-Up Servicing Agreement, and based on my knowledge and
the
compliance review conducted in preparing the compliance statement of the HELOC
Back-Up Servicer required in the Annual Report under Item 1123 of Regulation
AB,
and except as disclosed in the Reports, the HELOC Back-Up Servicer has fulfilled
its obligations under the HELOC Back-Up Servicing Agreement in all material
respects; and
5. The
report on assessment of compliance with servicing criteria for asset-backed
securities of the HELOC Back-Up Servicer and its related attestation report
on
assessment of compliance with servicing criteria 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:
__________________
