EXHIBIT 4
GS MORTGAGE SECURITIES CORP.,
Depositor,
FREMONT INVESTMENT & LOAN,
Servicer and Responsible Party,
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee,
and
XXXXX FARGO BANK, N.A.,
Master Servicer and Securities Administrator
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POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2006
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GSAMP TRUST 2006-FM3
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-FM3
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.............
Section 2.03 Representations, Warranties and Covenants of the
Responsible Party, the Servicer and the Depositor........
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, the
Trustee and the Master Servicer..........................
Section 3.06 Assumption or Termination of Subservicing Agreements by
Master Servicer..........................................
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 Account..........................................
Section 3.11 Withdrawals from the Collection Account.....................
Section 3.12 Investment of Funds in the Collection Account and the
Distribution Account.....................................
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions
and Fidelity Coverage....................................
Section 3.14 Enforcement of Due-on-Sale Clauses; Assumption Agreements...
Section 3.15 Realization upon Defaulted Mortgage Loans...................
Section 3.16 Release of Mortgage Files...................................
Section 3.17 Title, Conservation and Disposition of REO Property.........
Section 3.18 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 Securities Administrator
for the Benefit of 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 Master Servicer 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.................................
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 SERVICERS
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 Master Servicer to Act; Appointment of Successor Servicer...
Section 7.03 Notification to Certificateholders..........................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee.......................................
Section 8.02 Certain Matters Affecting the Trustee.......................
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.......
Section 8.04 Trustee May Own Certificates................................
Section 8.05 Trustee's Fees and Expenses and Indemnification.............
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
ADMINISTRATION OF THE MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of Servicer's
Obligations..............................................
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance................................................
Section 9.03 Representations and Warranties of the Master Servicer.......
Section 9.04 Master Servicer Events of Default...........................
Section 9.05 Waiver of Default...........................................
Section 9.06 Successor to the Master Servicer............................
Section 9.07 Compensation of the Master Servicer.........................
Section 9.08 Merger or Consolidation.....................................
Section 9.09 Resignation of the Master Servicer..........................
Section 9.10 Assignment or Delegation of Duties by the Master Servicer...
Section 9.11 Limitation on Liability of the Master Servicer..............
Section 9.12 Indemnification; Third Party Claims.........................
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator..........................
Section 10.02 Certain Matters Affecting the Securities Administrator......
Section 10.03 Securities Administrator Not Liable for Certificates or
Mortgage Loans...........................................
Section 10.04 Securities Administrator May Own Certificates...............
Section 10.05 Securities Administrator's Fees and Expenses................
Section 10.06 Eligibility Requirements for Securities Administrator.......
Section 10.07 Resignation and Removal of Securities Administrator.........
Section 10.08 Successor Securities Administrator..........................
Section 10.09 Merger or Consolidation of Securities Administrator.........
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator............................................
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the Mortgage
Loans....................................................
Section 11.02 Final Distribution on the Certificates......................
Section 11.03 Additional Termination Requirements.........................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment...................................................
Section 12.02 Recordation of Agreement; Counterparts......................
Section 12.03 Governing Law...............................................
Section 12.04 Intention of Parties........................................
Section 12.05 Notices.....................................................
Section 12.06 Severability of Provisions..................................
Section 12.07 Assignment; Sales; Advance Facilities.......................
Section 12.08 Limitation on Rights of Certificateholders..................
Section 12.09 Inspection and Audit Rights.................................
Section 12.10 Certificates Nonassessable and Fully Paid...................
Section 12.11 Waiver of Jury Trial........................................
Section 12.12 Limitation of Damages.......................................
Section 12.13 Rights of Third Parties.....................................
Section 12.14 No Solicitation.............................................
Section 12.15 Regulation AB Compliance; Intent of the Parties;
Reasonableness...........................................
SCHEDULES
Schedule I Mortgage Loan Schedule
Schedule II Representations and Warranties of the Servicer
Schedule III Representations and Warranties of the Responsible Party as to the
Individual Mortgage Loans
Schedule IV Representations and Warranties of the Responsible Party
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 the
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 Representations and Warranties Agreement
Exhibit O Form of Certification to be provided with Form 10-K
Exhibit P Form of Securities Administrator Certification to be provided to
Depositor
Exhibit Q-1 Form of Servicer Certification to be provided to Depositor
Exhibit Q-2 Form of Subservicer Certification to be provided to Depositor
Exhibit Q-3 Form of Master Servicer Certification to be provided to Depositor
Exhibit R Form of Power of Attorney
Exhibit S Form of Limited Power of Attorney
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 Servicer Remittance Report
Exhibit Z Form of Monthly Defaulted Loan Report
Exhibit AA Form of Realized Loss Report
Exhibit BB Purchase Agreement
THIS POOLING AND SERVICING AGREEMENT, dated as of December 1, 2006,
among GS MORTGAGE SECURITIES CORP., a Delaware corporation (the "Depositor"),
FREMONT INVESTMENT & LOAN, a California corporation, as servicer (in such
capacity, the "Servicer") and as responsible party (in such capacity, the
"Responsible Party"), DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking
association, as trustee (the "Trustee") and XXXXX FARGO BANK, N.A., as
securities administrator (in such capacity, the "Securities Administrator") and
as master servicer (in such capacity, the "Master Servicer").
W I T N E S S E T H:
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Securities Administrator 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 Interest Rate Swap Agreement, the Supplemental Interest Trust, the
Excess Reserve Fund Account and the right to receive Class IO Shortfalls,
subject to the obligation to pay Basis Risk Carry Forward Amounts and, without
duplication, Upper-Tier Carry Forward Amounts to the LIBOR Certificates.
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) $5,812,590.37
Class PT1-I-2A (2) $2,074,086.37
Class PT1-I-2B (3) $2,074,086.37
Class PT1-I-3A (2) $2,543,394.37
Class PT1-I-3B (3) $2,543,394.37
Class PT1-I-4A (2) $3,008,549.20
Class PT1-I-4B (3) $3,008,549.20
Class PT1-I-5A (2) $3,465,567.09
Class PT1-I-5B (3) $3,465,567.09
Class PT1-I-6A (2) $3,910,345.19
Class PT1-I-6B (3) $3,910,345.19
Class PT1-I-7A (2) $4,338,710.14
Class PT1-I-7B (3) $4,338,710.14
Class PT1-I-8A (2) $4,746,468.64
Class PT1-I-8B (3) $4,746,468.64
Class PT1-I-9A (2) $5,129,192.13
Class PT1-I-9B (3) $5,129,192.13
Class PT1-I-10A (2) $5,482,185.58
Class PT1-I-10B (3) $5,482,185.58
Class PT1-I-11A (2) $5,785,091.59
Class PT1-I-11B (3) $5,785,091.59
Class PT1-I-12A (2) $5,519,299.45
Class PT1-I-12B (3) $5,519,299.45
Class PT1-I-13A (2) $5,264,428.17
Class PT1-I-13B (3) $5,264,428.17
Class PT1-I-14A (2) $5,021,450.82
Class PT1-I-14B (3) $5,021,450.82
Class PT1-I-15A (2) $4,789,807.29
Class PT1-I-15B (3) $4,789,807.29
Class PT1-I-16A (2) $4,568,964.89
Class PT1-I-16B (3) $4,568,964.89
Class PT1-I-17A (2) $4,358,414.66
Class PT1-I-17B (3) $4,358,414.66
Class PT1-I-18A (2) $4,157,672.75
Class PT1-I-18B (3) $4,157,672.75
Class PT1-I-19A (2) $3,966,278.42
Class PT1-I-19B (3) $3,966,278.42
Class PT1-I-20A (2) $3,783,791.95
Class PT1-I-20B (3) $3,783,791.95
Class PT1-I-21A (2) $3,611,712.74
Class PT1-I-21B (3) $3,611,712.74
Class PT1-I-22A (2) $3,453,984.42
Class PT1-I-22B (3) $3,453,984.42
Class PT1-I-23A (2) $3,347,455.25
Class PT1-I-23B (3) $3,347,455.25
Class PT1-I-24A (2) $7,783,046.34
Class PT1-I-24B (3) $7,783,046.34
Class PT1-I-25A (2) $6,733,727.17
Class PT1-I-25B (3) $6,733,727.17
Class PT1-I-26A (2) $5,802,200.93
Class PT1-I-26B (3) $5,802,200.93
Class PT1-I-27A (2) $2,509,189.28
Class PT1-I-27B (3) $2,509,189.28
Class PT1-I-28A (2) $2,369,334.86
Class PT1-I-28B (3) $2,369,334.86
Class PT1-I-29A (2) $2,242,274.39
Class PT1-I-29B (3) $2,242,274.39
Class PT1-I-30A (2) $2,122,286.92
Class PT1-I-30B (3) $2,122,286.92
Class PT1-I-31A (2) $2,008,967.13
Class PT1-I-31B (3) $2,008,967.13
Class PT1-I-32A (2) $1,901,934.76
Class PT1-I-32B (3) $1,901,934.76
Class PT1-I-33A (2) $949,130.92
Class PT1-I-33B (3) $949,130.92
Class PT1-I-34A (2) $808,345.48
Class PT1-I-34B (3) $808,345.48
Class PT1-I-35A (2) $1,556,914.54
Class PT1-I-35B (3) $1,556,914.54
Class PT1-I-36A (2) $1,474,670.47
Class PT1-I-36B (3) $1,474,670.47
Class PT1-I-37A (2) $1,396,995.30
Class PT1-I-37B (3) $1,396,995.30
Class PT1-I-38A (2) $1,323,587.96
Class PT1-I-38B (3) $1,323,587.96
Class PT1-I-39A (2) $1,254,203.23
Class PT1-I-39B (3) $1,254,203.23
Class PT1-I-40A (2) $1,188,613.28
Class PT1-I-40B (3) $1,188,613.28
Class PT1-I-41A (2) $1,126,604.10
Class PT1-I-41B (3) $1,126,604.10
Class PT1-I-42A (2) $1,105,608.04
Class PT1-I-42B (3) $1,105,608.04
Class PT1-I-43A (2) $1,050,344.25
Class PT1-I-43B (3) $1,050,344.25
Class PT1-I-44A (2) $995,953.10
Class PT1-I-44B (3) $995,953.10
Class PT1-I-45A (2) $944,508.30
Class PT1-I-45B (3) $944,508.30
Class PT1-I-46A (2) $895,844.46
Class PT1-I-46B (3) $895,844.46
Class PT1-I-47A (2) $849,805.53
Class PT1-I-47B (3) $849,805.53
Class PT1-I-48A (2) $806,245.22
Class PT1-I-48B (3) $806,245.22
Class PT1-I-49A (2) $765,024.88
Class PT1-I-49B (3) $765,024.88
Class PT1-I-50A (2) $726,013.72
Class PT1-I-50B (3) $726,013.72
Class PT1-I-51A (2) $689,089.88
Class PT1-I-51B (3) $689,089.88
Class PT1-I-52A (2) $654,136.57
Class PT1-I-52B (3) $654,136.57
Class PT1-I-53A (2) $621,044.25
Class PT1-I-53B (3) $621,044.25
Class PT1-I-54A (2) $589,710.35
Class PT1-I-54B (3) $589,710.35
Class PT1-I-55A (2) $560,038.06
Class PT1-I-55B (3) $560,038.06
Class PT1-I-56A (2) $531,934.82
Class PT1-I-56B (3) $531,934.82
Class PT1-I-57A (2) $505,314.42
Class PT1-I-57B (3) $505,314.42
Class PT1-I-58A (2) $480,095.96
Class PT1-I-58B (3) $480,095.96
Class PT1-I-59A (2) $456,202.80
Class PT1-I-59B (3) $456,202.80
Class PT1-I-60A (2) $433,740.67
Class PT1-I-60B (3) $433,740.67
Class PT1-I-61A (2) $8,017,744.09
Class PT1-I-61B (3) $8,017,744.09
Class PT1-II-1 (4) $7,128,449.45
Class PT1-II-2A (5) $2,543,576.02
Class PT1-II-2B (6) $2,543,576.02
Class PT1-II-3A (5) $3,119,116.46
Class PT1-II-3B (6) $3,119,116.46
Class PT1-II-4A (5) $3,689,563.61
Class PT1-II-4B (6) $3,689,563.61
Class PT1-II-5A (5) $4,250,031.95
Class PT1-II-5B (6) $4,250,031.95
Class PT1-II-6A (5) $4,795,489.91
Class PT1-II-6B (6) $4,795,489.91
Class PT1-II-7A (5) $5,320,819.44
Class PT1-II-7B (6) $5,320,819.44
Class PT1-II-8A (5) $5,820,878.05
Class PT1-II-8B (6) $5,820,878.05
Class PT1-II-9A (5) $6,290,234.72
Class PT1-II-9B (6) $6,290,234.72
Class PT1-II-10A (5) $6,723,131.68
Class PT1-II-10B (6) $6,723,131.68
Class PT1-II-11A (5) $7,094,603.41
Class PT1-II-11B (6) $7,094,603.41
Class PT1-II-12A (5) $6,768,646.63
Class PT1-II-12B (6) $6,768,646.63
Class PT1-II-13A (5) $6,456,082.76
Class PT1-II-13B (6) $6,456,082.76
Class PT1-II-14A (5) $6,158,105.12
Class PT1-II-14B (6) $6,158,105.12
Class PT1-II-15A (5) $5,874,026.83
Class PT1-II-15B (6) $5,874,026.83
Class PT1-II-16A (5) $5,603,194.59
Class PT1-II-16B (6) $5,603,194.59
Class PT1-II-17A (5) $5,344,984.27
Class PT1-II-17B (6) $5,344,984.27
Class PT1-II-18A (5) $5,098,802.48
Class PT1-II-18B (6) $5,098,802.48
Class PT1-II-19A (5) $4,864,084.17
Class PT1-II-19B (6) $4,864,084.17
Class PT1-II-20A (5) $4,640,290.11
Class PT1-II-20B (6) $4,640,290.11
Class PT1-II-21A (5) $4,429,259.10
Class PT1-II-21B (6) $4,429,259.10
Class PT1-II-22A (5) $4,235,827.44
Class PT1-II-22B (6) $4,235,827.44
Class PT1-II-23A (5) $4,105,184.35
Class PT1-II-23B (6) $4,105,184.35
Class PT1-II-24A (5) $9,544,814.69
Class PT1-II-24B (6) $9,544,814.69
Class PT1-II-25A (5) $8,257,971.90
Class PT1-II-25B (6) $8,257,971.90
Class PT1-II-26A (5) $7,115,585.62
Class PT1-II-26B (6) $7,115,585.62
Class PT1-II-27A (5) $3,077,168.71
Class PT1-II-27B (6) $3,077,168.71
Class PT1-II-28A (5) $2,905,656.88
Class PT1-II-28B (6) $2,905,656.88
Class PT1-II-29A (5) $2,749,835.04
Class PT1-II-29B (6) $2,749,835.04
Class PT1-II-30A (5) $2,602,687.24
Class PT1-II-30B (6) $2,602,687.24
Class PT1-II-31A (5) $2,463,716.41
Class PT1-II-31B (6) $2,463,716.41
Class PT1-II-32A (5) $2,332,456.22
Class PT1-II-32B (6) $2,332,456.22
Class PT1-II-33A (5) $1,163,975.95
Class PT1-II-33B (6) $1,163,975.95
Class PT1-II-34A (5) $991,322.36
Class PT1-II-34B (6) $991,322.36
Class PT1-II-35A (5) $1,909,337.31
Class PT1-II-35B (6) $1,909,337.31
Class PT1-II-36A (5) $1,808,476.49
Class PT1-II-36B (6) $1,808,476.49
Class PT1-II-37A (5) $1,713,218.79
Class PT1-II-37B (6) $1,713,218.79
Class PT1-II-38A (5) $1,623,194.99
Class PT1-II-38B (6) $1,623,194.99
Class PT1-II-39A (5) $1,538,104.34
Class PT1-II-39B (6) $1,538,104.34
Class PT1-II-40A (5) $1,457,667.48
Class PT1-II-40B (6) $1,457,667.48
Class PT1-II-41A (5) $1,381,621.92
Class PT1-II-41B (6) $1,381,621.92
Class PT1-II-42A (5) $1,355,873.19
Class PT1-II-42B (6) $1,355,873.19
Class PT1-II-43A (5) $1,288,099.91
Class PT1-II-43B (6) $1,288,099.91
Class PT1-II-44A (5) $1,221,396.78
Class PT1-II-44B (6) $1,221,396.78
Class PT1-II-45A (5) $1,158,306.96
Class PT1-II-45B (6) $1,158,306.96
Class PT1-II-46A (5) $1,098,627.59
Class PT1-II-46B (6) $1,098,627.59
Class PT1-II-47A (5) $1,042,167.29
Class PT1-II-47B (6) $1,042,167.29
Class PT1-II-48A (5) $988,746.68
Class PT1-II-48B (6) $988,746.68
Class PT1-II-49A (5) $938,195.71
Class PT1-II-49B (6) $938,195.71
Class PT1-II-50A (5) $890,354.00
Class PT1-II-50B (6) $890,354.00
Class PT1-II-51A (5) $845,072.08
Class PT1-II-51B (6) $845,072.08
Class PT1-II-52A (5) $802,206.76
Class PT1-II-52B (6) $802,206.76
Class PT1-II-53A (5) $761,623.66
Class PT1-II-53B (6) $761,623.66
Class PT1-II-54A (5) $723,197.03
Class PT1-II-54B (6) $723,197.03
Class PT1-II-55A (5) $686,808.14
Class PT1-II-55B (6) $686,808.14
Class PT1-II-56A (5) $652,343.45
Class PT1-II-56B (6) $652,343.45
Class PT1-II-57A (5) $619,697.26
Class PT1-II-57B (6) $619,697.26
Class PT1-II-58A (5) $588,770.36
Class PT1-II-58B (6) $588,770.36
Class PT1-II-59A (5) $559,468.75
Class PT1-II-59B (6) $559,468.75
Class PT1-II-60A (5) $531,922.10
Class PT1-II-60B (6) $531,922.10
Class PT1-II-61A (5) $9,832,638.55
Class PT1-II-61B (6) $9,832,638.55
Class PT1-R (7) $ 100.00
____________________
(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 9.70%.
(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 9.70%.
(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 9.70%.
(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 9.70%.
(7) The Class PT1-R Interest shall not bear interest.
On each Distribution Date, the Securities Administrator 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 Master Servicing 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 (in respect of the Class PT1-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-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
Pooling-Tier REMIC-2 Corresponding Pooling-Tier Scheduled
REMIC-2 Initial Pooling-Tier REMIC-1 Crossover
Pooling-Tier Interest Principal REMIC-2 IO Regular Distribution
REMIC-2 Interest Rate Amount Interest Interest Date
---------------- ------------ ----------- ------------- ------------- -------------
Class PT2-I-1 (1) $ 5,812,540.37 N/A N/A N/A
Class PT2-I-2A (2) $ 2,074,086.37 Class PT2-I-IO-2 N/A N/A
Class PT2-I-2B (3) $ 2,074,086.37 N/A N/A N/A
Class PT2-I-3A (2) $ 2,543,394.37 Class PT2-I-IO-3 N/A N/A
Class PT2-I-3B (3) $ 2,543,394.37 N/A N/A N/A
Class PT2-I-4A (2) $ 3,008,549.20 Class PT2-I-IO-4 N/A N/A
Class PT2-I-4B (3) $ 3,008,549.20 N/A N/A N/A
Class PT2-I-5A (2) $ 3,465,567.09 Class PT2-I-IO-5 N/A N/A
Class PT2-I-5B (3) $ 3,465,567.09 N/A N/A N/A
Class PT2-I-6A (2) $ 3,910,345.19 Class PT2-I-IO-6 N/A N/A
Class PT2-I-6B (3) $ 3,910,345.19 N/A N/A N/A
Class PT2-I-7A (2) $ 4,338,710.14 Class PT2-I-IO-7 N/A N/A
Class PT2-I-7B (3) $ 4,338,710.14 N/A N/A N/A
Class PT2-I-8A (2) $ 4,746,468.64 Class PT2-I-IO-8 N/A N/A
Class PT2-I-8B (3) $ 4,746,468.64 N/A N/A N/A
Class PT2-I-9A (2) $ 5,129,192.13 Class PT2-I-IO-9 N/A N/A
Class PT2-I-9B (3) $ 5,129,192.13 N/A N/A N/A
Class PT2-I-10A (2) $ 5,482,185.58 Class PT2-I-IO-10 N/A N/A
Class PT2-I-10B (3) $ 5,482,185.58 N/A N/A N/A
Class PT2-I-11A (2) $ 5,785,091.59 Class PT2-I-IO-11 N/A N/A
Class PT2-I-11B (3) $ 5,785,091.59 N/A N/A N/A
Class PT2-I-12A (2) $ 5,519,299.45 Class PT2-I-IO-12 N/A N/A
Class PT2-I-12B (3) $ 5,519,299.45 N/A N/A N/A
Class PT2-I-13A (2) $ 5,264,428.17 Class PT2-I-IO-13 N/A N/A
Class PT2-I-13B (3) $ 5,264,428.17 N/A N/A N/A
Class PT2-I-14A (2) $ 5,021,450.82 Class PT2-I-IO-14 N/A N/A
Class PT2-I-14B (3) $ 5,021,450.82 N/A N/A N/A
Class PT2-I-15A (2) $ 4,789,807.29 Class PT2-I-IO-15 N/A N/A
Class PT2-I-15B (3) $ 4,789,807.29 N/A N/A N/A
Class PT2-I-16A (2) $ 4,568,964.89 Class PT2-I-IO-16 N/A N/A
Class PT2-I-16B (3) $ 4,568,964.89 N/A N/A N/A
Class PT2-I-17A (2) $ 4,358,414.66 Class PT2-I-IO-17 N/A N/A
Class PT2-I-17B (3) $ 4,358,414.66 N/A N/A N/A
Class PT2-I-18A (2) $ 4,157,672.75 Class PT2-I-IO-18 N/A N/A
Class PT2-I-18B (3) $ 4,157,672.75 N/A N/A N/A
Class PT2-I-19A (2) $ 3,966,278.42 Class PT2-I-IO-19 N/A N/A
Class PT2-I-19B (3) $ 3,966,278.42 N/A N/A N/A
Class PT2-I-20A (2) $ 3,783,791.95 Class PT2-I-IO-20 N/A N/A
Class PT2-I-20B (3) $ 3,783,791.95 N/A N/A N/A
Class PT2-I-21A (2) $ 3,611,712.74 Class PT2-I-IO-21 N/A N/A
Class PT2-I-21B (3) $ 3,611,712.74 N/A N/A N/A
Class PT2-I-22A (2) $ 3,453,984.42 Class PT2-I-IO-22 N/A N/A
Class PT2-I-22B (3) $ 3,453,984.42 N/A N/A N/A
Class PT2-I-23A (2) $ 3,347,455.25 Class PT2-I-IO-23 N/A N/A
Class PT2-I-23B (3) $ 3,347,455.25 N/A N/A N/A
Class PT2-I-24A (2) $ 7,783,046.34 Class PT2-I-IO-24 N/A N/A
Class PT2-I-24B (3) $ 7,783,046.34 N/A N/A N/A
Class PT2-I-25A (2) $ 6,733,727.17 Class PT2-I-IO-25 N/A N/A
Class PT2-I-25B (3) $ 6,733,727.17 N/A N/A N/A
Class PT2-I-26A (2) $ 5,802,200.93 Class PT2-I-IO-26 N/A N/A
Class PT2-I-26B (3) $ 5,802,200.93 N/A N/A N/A
Class PT2-I-27A (2) $ 2,509,189.28 Class PT2-I-IO-27 N/A N/A
Class PT2-I-27B (3) $ 2,509,189.28 N/A N/A N/A
Class PT2-I-28A (2) $ 2,369,334.86 Class PT2-I-IO-28 N/A N/A
Class PT2-I-28B (3) $ 2,369,334.86 N/A N/A N/A
Class PT2-I-29A (2) $ 2,242,274.39 Class PT2-I-IO-29 N/A N/A
Class PT2-I-29B (3) $ 2,242,274.39 N/A N/A N/A
Class PT2-I-30A (2) $ 2,122,286.92 Class PT2-I-IO-30 N/A N/A
Class PT2-I-30B (3) $ 2,122,286.92 N/A N/A N/A
Class PT2-I-31A (2) $ 2,008,967.13 Class PT2-I-IO-31 N/A N/A
Class PT2-I-31B (3) $ 2,008,967.13 N/A N/A N/A
Class PT2-I-32A (2) $ 1,901,934.76 Class PT2-I-IO-32 N/A N/A
Class PT2-I-32B (3) $ 1,901,934.76 N/A N/A N/A
Class PT2-I-33A (2) $ 949,130.92 Class PT2-I-IO-33 N/A N/A
Class PT2-I-33B (3) $ 949,130.92 N/A N/A N/A
Class PT2-I-34A (2) $ 808,345.48 Class PT2-I-IO-34 N/A N/A
Class PT2-I-34B (3) $ 808,345.48 N/A N/A N/A
Class PT2-I-35A (2) $ 1,556,914.54 Class PT2-I-IO-35 N/A N/A
Class PT2-I-35B (3) $ 1,556,914.54 N/A N/A N/A
Class PT2-I-36A (2) $ 1,474,670.47 Class PT2-I-IO-36 N/A N/A
Class PT2-I-36B (3) $ 1,474,670.47 N/A N/A N/A
Class PT2-I-37A (2) $ 1,396,995.30 Class PT2-I-IO-37 N/A N/A
Class PT2-I-37B (3) $ 1,396,995.30 N/A N/A N/A
Class PT2-I-38A (2) $ 1,323,587.96 Class PT2-I-IO-38 N/A N/A
Class PT2-I-38B (3) $ 1,323,587.96 N/A N/A N/A
Class PT2-I-39A (2) $ 1,254,203.23 Class PT2-I-IO-39 N/A N/A
Class PT2-I-39B (3) $ 1,254,203.23 N/A N/A N/A
Class PT2-I-40A (2) $ 1,188,613.28 Class PT2-I-IO-40 N/A N/A
Class PT2-I-40B (3) $ 1,188,613.28 N/A N/A N/A
Class PT2-I-41A (2) $ 1,126,604.10 Class PT2-I-IO-41 N/A N/A
Class PT2-I-41B (3) $ 1,126,604.10 N/A N/A N/A
Class PT2-I-42A (2) $ 1,105,608.04 Class PT2-I-IO-42 N/A N/A
Class PT2-I-42B (3) $ 1,105,608.04 N/A N/A N/A
Class PT2-I-43A (2) $ 1,050,344.25 Class PT2-I-IO-43 N/A N/A
Class PT2-I-43B (3) $ 1,050,344.25 N/A N/A N/A
Class PT2-I-44A (2) $ 995,953.10 Class PT2-I-IO-44 N/A N/A
Class PT2-I-44B (3) $ 995,953.10 N/A N/A N/A
Class PT2-I-45A (2) $ 944,508.30 Class PT2-I-IO-45 N/A N/A
Class PT2-I-45B (3) $ 944,508.30 N/A N/A N/A
Class PT2-I-46A (2) $ 895,844.46 Class PT2-I-IO-46 N/A N/A
Class PT2-I-46B (3) $ 895,844.46 N/A N/A N/A
Class PT2-I-47A (2) $ 849,805.53 Class PT2-I-IO-47 N/A N/A
Class PT2-I-47B (3) $ 849,805.53 N/A N/A N/A
Class PT2-I-48A (2) $ 806,245.22 Class PT2-I-IO-48 N/A N/A
Class PT2-I-48B (3) $ 806,245.22 N/A N/A N/A
Class PT2-I-49A (2) $ 765,024.88 Class PT2-I-IO-49 N/A N/A
Class PT2-I-49B (3) $ 765,024.88 N/A N/A N/A
Class PT2-I-50A (2) $ 726,013.72 Class PT2-I-IO-50 N/A N/A
Class PT2-I-50B (3) $ 726,013.72 N/A N/A N/A
Class PT2-I-51A (2) $ 689,089.88 Class PT2-I-IO-51 N/A N/A
Class PT2-I-51B (3) $ 689,089.88 N/A N/A N/A
Class PT2-I-52A (2) $ 654,136.57 Class PT2-I-IO-52 N/A N/A
Class PT2-I-52B (3) $ 654,136.57 N/A N/A N/A
Class PT2-I-53A (2) $ 621,044.25 Class PT2-I-IO-53 N/A N/A
Class PT2-I-53B (3) $ 621,044.25 N/A N/A N/A
Class PT2-I-54A (2) $ 589,710.35 Class PT2-I-IO-54 N/A N/A
Class PT2-I-54B (3) $ 589,710.35 N/A N/A N/A
Class PT2-I-55A (2) $ 560,038.06 Class PT2-I-IO-55 N/A N/A
Class PT2-I-55B (3) $ 560,038.06 N/A N/A N/A
Class PT2-I-56A (2) $ 531,934.82 Class PT2-I-IO-56 N/A N/A
Class PT2-I-56B (3) $ 531,934.82 N/A N/A N/A
Class PT2-I-57A (2) $ 505,314.42 Class PT2-I-IO-57 N/A N/A
Class PT2-I-57B (3) $ 505,314.42 N/A N/A N/A
Class PT2-I-58A (2) $ 480,095.96 Class PT2-I-IO-58 N/A N/A
Class PT2-I-58B (3) $ 480,095.96 N/A N/A N/A
Class PT2-I-59A (2) $ 456,202.80 Class PT2-I-IO-59 N/A N/A
Class PT2-I-59B (3) $ 456,202.80 N/A N/A N/A
Class PT2-I-60A (2) $ 433,740.67 Class PT2-I-IO-60 N/A N/A
Class PT2-I-60B (3) $ 433,740.67 N/A N/A N/A
Class PT2-I-61A (2) $ 8,017,744.09 Class PT2-I-IO-61 N/A N/A
Class PT2-I-61B (3) $ 8,017,744.09 N/A N/A N/A
Class PT2-I-IO-2 (4) (4) N/A Class PT1-I-2A January 2007
Class PT2-I-IO-3 (4) (4) N/A Class PT1-I-3A February 2007
Class PT2-I-IO-4 (4) (4) N/A Class PT1-I-4A March 2007
Class PT2-I-IO-5 (4) (4) N/A Class PT1-I-5A April 2007
Class PT2-I-IO-6 (4) (4) N/A Class PT1-I-6A May 2007
Class PT2-I-IO-7 (4) (4) N/A Class PT1-I-7A June 2007
Class PT2-I-IO-8 (4) (4) N/A Class PT1-I-8A July 2007
Class PT2-I-IO-9 (4) (4) N/A Class PT1-I-9A August 2007
Class PT2-I-IO-10 (4) (4) N/A Class PT1-I-10A September 2007
Class PT2-I-IO-11 (4) (4) N/A Class PT1-I-11A October 2007
Class PT2-I-IO-12 (4) (4) N/A Class PT1-I-12A November 2007
Class PT2-I-IO-13 (4) (4) N/A Class PT1-I-13A December 2007
Class PT2-I-IO-14 (4) (4) N/A Class PT1-I-14A January 2008
Class PT2-I-IO-15 (4) (4) N/A Class PT1-I-15A February 2008
Class PT2-I-IO-16 (4) (4) N/A Class PT1-I-16A March 2008
Class PT2-I-IO-17 (4) (4) N/A Class PT1-I-17A April 2008
Class PT2-I-IO-18 (4) (4) N/A Class PT1-I-18A May 2008
Class PT2-I-IO-19 (4) (4) N/A Class PT1-I-19A June 2008
Class PT2-I-IO-20 (4) (4) N/A Class PT1-I-20A July 2008
Class PT2-I-IO-21 (4) (4) N/A Class PT1-I-21A August 2008
Class PT2-I-IO-22 (4) (4) N/A Class PT1-I-22A September 2008
Class PT2-I-IO-23 (4) (4) N/A Class PT1-I-23A October 2008
Class PT2-I-IO-24 (4) (4) N/A Class PT1-I-24A November 2008
Class PT2-I-IO-25 (4) (4) N/A Class PT1-I-25A December 2008
Class PT2-I-IO-26 (4) (4) N/A Class PT1-I-26A January 2009
Class PT2-I-IO-27 (4) (4) N/A Class PT1-I-27A February 2009
Class PT2-I-IO-28 (4) (4) N/A Class PT1-I-28A March 2009
Class PT2-I-IO-29 (4) (4) N/A Class PT1-I-29A April 2009
Class PT2-I-IO-30 (4) (4) N/A Class PT1-I-30A May 2009
Class PT2-I-IO-31 (4) (4) N/A Class PT1-I-31A June 2009
Class PT2-I-IO-32 (4) (4) N/A Class PT1-I-32A July 2009
Class PT2-I-IO-33 (4) (4) N/A Class PT1-I-33A August 2009
Class PT2-I-IO-34 (4) (4) N/A Class PT1-I-34A September 2009
Class PT2-I-IO-35 (4) (4) N/A Class PT1-I-35A October 2009
Class PT2-I-IO-36 (4) (4) N/A Class PT1-I-36A November 2009
Class PT2-I-IO-37 (4) (4) N/A Class PT1-I-37A December 2009
Class PT2-I-IO-38 (4) (4) N/A Class PT1-I-38A January 2010
Class PT2-I-IO-39 (4) (4) N/A Class PT1-I-39A February 2010
Class PT2-I-IO-40 (4) (4) N/A Class PT1-I-40A March 2010
Class PT2-I-IO-41 (4) (4) N/A Class PT1-I-41A April 2010
Class PT2-I-IO-42 (4) (4) N/A Class PT1-I-42A May 2010
Class PT2-I-IO-43 (4) (4) N/A Class PT1-I-43A June 2010
Class PT2-I-IO-44 (4) (4) N/A Class PT1-I-44A July 2010
Class PT2-I-IO-45 (4) (4) N/A Class PT1-I-45A August 2010
Class PT2-I-IO-46 (4) (4) N/A Class PT1-I-46A September 2010
Class PT2-I-IO-47 (4) (4) N/A Class PT1-I-47A October 2010
Class PT2-I-IO-48 (4) (4) N/A Class PT1-I-48A November 2010
Class PT2-I-IO-49 (4) (4) N/A Class PT1-I-49A December 2010
Class PT2-I-IO-50 (4) (4) N/A Class PT1-I-50A January 2011
Class PT2-I-IO-51 (4) (4) N/A Class PT1-I-51A February 2011
Class PT2-I-IO-52 (4) (4) N/A Class PT1-I-52A March 2011
Class PT2-I-IO-53 (4) (4) N/A Class PT1-I-53A April 2011
Class PT2-I-IO-54 (4) (4) N/A Class PT1-I-54A May 2011
Class PT2-I-IO-55 (4) (4) N/A Class PT1-I-55A June 2011
Class PT2-I-IO-56 (4) (4) N/A Class PT1-I-56A July 2011
Class PT2-I-IO-57 (4) (4) N/A Class PT1-I-57A August 2011
Class PT2-I-IO-58 (4) (4) N/A Class PT1-I-58A September 2011
Class PT2-I-IO-59 (4) (4) N/A Class PT1-I-59A October 2011
Class PT2-I-IO-60 (4) (4) N/A Class PT1-I-60A November 2011
Class PT2-I-IO-61 (4) (4) N/A Class PT1-I-61A December 2011
Class PT2-II-1 (5) $7,128,449.45 N/A N/A N/A
Class PT2-II-2A (6) $2,543,576.02 Class PT2-II-IO-2 N/A N/A
Class PT2-II-2B (7) $2,543,576.02 N/A N/A N/A
Class PT2-II-3A (6) $3,119,116.46 Class PT2-II-IO-3 N/A N/A
Class PT2-II-3B (7) $3,119,116.46 N/A N/A N/A
Class PT2-II-4A (6) $3,689,563.61 Class PT2-II-IO-4 N/A N/A
Class PT2-II-4B (7) $3,689,563.61 N/A N/A N/A
Class PT2-II-5A (6) $4,250,031.95 Class PT2-II-IO-5 N/A N/A
Class PT2-II-5B (7) $4,250,031.95 N/A N/A N/A
Class PT2-II-6A (6) $4,795,489.91 Class PT2-II-IO-6 N/A N/A
Class PT2-II-6B (7) $4,795,489.91 N/A N/A N/A
Class PT2-II-7A (6) $5,320,819.44 Class PT2-II-IO-7 N/A N/A
Class PT2-II-7B (7) $5,320,819.44 N/A N/A N/A
Class PT2-II-8A (6) $5,820,878.05 Class PT2-II-IO-8 N/A N/A
Class PT2-II-8B (7) $5,820,878.05 N/A N/A N/A
Class PT2-II-9A (6) $6,290,234.72 Class PT2-II-IO-9 N/A N/A
Class PT2-II-9B (7) $6,290,234.72 N/A N/A N/A
Class PT2-II-10A (6) $6,723,131.68 Class PT2-II-IO-10 N/A N/A
Class PT2-II-10B (7) $6,723,131.68 N/A N/A N/A
Class PT2-II-11A (6) $7,094,603.41 Class PT2-II-IO-11 N/A N/A
Class PT2-II-11B (7) $7,094,603.41 N/A N/A N/A
Class PT2-II-12A (6) $6,768,646.63 Class PT2-II-IO-12 N/A N/A
Class PT2-II-12B (7) $6,768,646.63 N/A N/A N/A
Class PT2-II-13A (6) $6,456,082.76 Class PT2-II-IO-13 N/A N/A
Class PT2-II-13B (7) $6,456,082.76 N/A N/A N/A
Class PT2-II-14A (6) $6,158,105.12 Class PT2-II-IO-14 N/A N/A
Class PT2-II-14B (7) $6,158,105.12 N/A N/A N/A
Class PT2-II-15A (6) $5,874,026.83 Class PT2-II-IO-15 N/A N/A
Class PT2-II-15B (7) $5,874,026.83 N/A N/A N/A
Class PT2-II-16A (6) $5,603,194.59 Class PT2-II-IO-16 N/A N/A
Class PT2-II-16B (7) $5,603,194.59 N/A N/A N/A
Class PT2-II-17A (6) $5,344,984.27 Class PT2-II-IO-17 N/A N/A
Class PT2-II-17B (7) $5,344,984.27 N/A N/A N/A
Class PT2-II-18A (6) $5,098,802.48 Class PT2-II-IO-18 N/A N/A
Class PT2-II-18B (7) $5,098,802.48 N/A N/A N/A
Class PT2-II-19A (6) $4,864,084.17 Class PT2-II-IO-19 N/A N/A
Class PT2-II-19B (7) $4,864,084.17 N/A N/A N/A
Class PT2-II-20A (6) $4,640,290.11 Class PT2-II-IO-20 N/A N/A
Class PT2-II-20B (7) $4,640,290.11 N/A N/A N/A
Class PT2-II-21A (6) $4,429,259.10 Class PT2-II-IO-21 N/A N/A
Class PT2-II-21B (7) $4,429,259.10 N/A N/A N/A
Class PT2-II-22A (6) $4,235,827.44 Class PT2-II-IO-22 N/A N/A
Class PT2-II-22B (7) $4,235,827.44 N/A N/A N/A
Class PT2-II-23A (6) $4,105,184.35 Class PT2-II-IO-23 N/A N/A
Class PT2-II-23B (7) $4,105,184.35 N/A N/A N/A
Class PT2-II-24A (6) $9,544,814.69 Class PT2-II-IO-24 N/A N/A
Class PT2-II-24B (7) $9,544,814.69 N/A N/A N/A
Class PT2-II-25A (6) $8,257,971.90 Class PT2-II-IO-25 N/A N/A
Class PT2-II-25B (7) $8,257,971.90 N/A N/A N/A
Class PT2-II-26A (6) $7,115,585.62 Class PT2-II-IO-26 N/A N/A
Class PT2-II-26B (7) $7,115,585.62 N/A N/A N/A
Class PT2-II-27A (6) $3,077,168.71 Class PT2-II-IO-27 N/A N/A
Class PT2-II-27B (7) $3,077,168.71 N/A N/A N/A
Class PT2-II-28A (6) $2,905,656.88 Class PT2-II-IO-28 N/A N/A
Class PT2-II-28B (7) $2,905,656.88 N/A N/A N/A
Class PT2-II-29A (6) $2,749,835.04 Class PT2-II-IO-29 N/A N/A
Class PT2-II-29B (7) $2,749,835.04 N/A N/A N/A
Class PT2-II-30A (6) $2,602,687.24 Class PT2-II-IO-30 N/A N/A
Class PT2-II-30B (7) $2,602,687.24 N/A N/A N/A
Class PT2-II-31A (6) $2,463,716.41 Class PT2-II-IO-31 N/A N/A
Class PT2-II-31B (7) $2,463,716.41 N/A N/A N/A
Class PT2-II-32A (6) $2,332,456.22 Class PT2-II-IO-32 N/A N/A
Class PT2-II-32B (7) $2,332,456.22 N/A N/A N/A
Class PT2-II-33A (6) $1,163,975.95 Class PT2-II-IO-33 N/A N/A
Class PT2-II-33B (7) $1,163,975.95 N/A N/A N/A
Class PT2-II-34A (6) $ 991,322.36 Class PT2-II-IO-34 N/A N/A
Class PT2-II-34B (7) $ 991,322.36 N/A N/A N/A
Class PT2-II-35A (6) $1,909,337.31 Class PT2-II-IO-35 N/A N/A
Class PT2-II-35B (7) $1,909,337.31 N/A N/A N/A
Class PT2-II-36A (6) $1,808,476.49 Class PT2-II-IO-36 N/A N/A
Class PT2-II-36B (7) $1,808,476.49 N/A N/A N/A
Class PT2-II-37A (6) $1,713,218.79 Class PT2-II-IO-37 N/A N/A
Class PT2-II-37B (7) $1,713,218.79 N/A N/A N/A
Class PT2-II-38A (6) $1,623,194.99 Class PT2-II-IO-38 N/A N/A
Class PT2-II-38B (7) $1,623,194.99 N/A N/A N/A
Class PT2-II-39A (6) $1,538,104.34 Class PT2-II-IO-39 N/A N/A
Class PT2-II-39B (7) $1,538,104.34 N/A N/A N/A
Class PT2-II-40A (6) $1,457,667.48 Class PT2-II-IO-40 N/A N/A
Class PT2-II-40B (7) $1,457,667.48 N/A N/A N/A
Class PT2-II-41A (6) $1,381,621.92 Class PT2-II-IO-41 N/A N/A
Class PT2-II-41B (7) $1,381,621.92 N/A N/A N/A
Class PT2-II-42A (6) $1,355,873.19 Class PT2-II-IO-42 N/A N/A
Class PT2-II-42B (7) $1,355,873.19 N/A N/A N/A
Class PT2-II-43A (6) $1,288,099.91 Class PT2-II-IO-43 N/A N/A
Class PT2-II-43B (7) $1,288,099.91 N/A N/A N/A
Class PT2-II-44A (6) $1,221,396.78 Class PT2-II-IO-44 N/A N/A
Class PT2-II-44B (7) $1,221,396.78 N/A N/A N/A
Class PT2-II-45A (6) $1,158,306.96 Class PT2-II-IO-45 N/A N/A
Class PT2-II-45B (7) $1,158,306.96 N/A N/A N/A
Class PT2-II-46A (6) $1,098,627.59 Class PT2-II-IO-46 N/A N/A
Class PT2-II-46B (7) $1,098,627.59 N/A N/A N/A
Class PT2-II-47A (6) $1,042,167.29 Class PT2-II-IO-47 N/A N/A
Class PT2-II-47B (7) $1,042,167.29 N/A N/A N/A
Class PT2-II-48A (6) $ 988,746.68 Class PT2-II-IO-48 N/A N/A
Class PT2-II-48B (7) $ 988,746.68 N/A N/A N/A
Class PT2-II-49A (6) $ 938,195.71 Class PT2-II-IO-49 N/A N/A
Class PT2-II-49B (7) $ 938,195.71 N/A N/A N/A
Class PT2-II-50A (6) $ 890,354.00 Class PT2-II-IO-50 N/A N/A
Class PT2-II-50B (7) $ 890,354.00 N/A N/A N/A
Class PT2-II-51A (6) $ 845,072.08 Class PT2-II-IO-51 N/A N/A
Class PT2-II-51B (7) $ 845,072.08 N/A N/A N/A
Class PT2-II-52A (6) $ 802,206.76 Class PT2-II-IO-52 N/A N/A
Class PT2-II-52B (7) $ 802,206.76 N/A N/A N/A
Class PT2-II-53A (6) $ 761,623.66 Class PT2-II-IO-53 N/A N/A
Class PT2-II-53B (7) $ 761,623.66 N/A N/A N/A
Class PT2-II-54A (6) $ 723,197.03 Class PT2-II-IO-54 N/A N/A
Class PT2-II-54B (7) $ 723,197.03 N/A N/A N/A
Class PT2-II-55A (6) $ 686,808.14 Class PT2-II-IO-55 N/A N/A
Class PT2-II-55B (7) $ 686,808.14 N/A N/A N/A
Class PT2-II-56A (6) $ 652,343.45 Class PT2-II-IO-56 N/A N/A
Class PT2-II-56B (7) $ 652,343.45 N/A N/A N/A
Class PT2-II-57A (6) $ 619,697.26 Class PT2-II-IO-57 N/A N/A
Class PT2-II-57B (7) $ 619,697.26 N/A N/A N/A
Class PT2-II-58A (6) $ 588,770.36 Class PT2-II-IO-58 N/A N/A
Class PT2-II-58B (7) $ 588,770.36 N/A N/A N/A
Class PT2-II-59A (6) $ 559,468.75 Class PT2-II-IO-59 N/A N/A
Class PT2-II-59B (7) $ 559,468.75 N/A N/A N/A
Class PT2-II-60A (6) $ 531,922.10 Class PT2-II-IO-60 N/A N/A
Class PT2-II-60B (7) $ 531,922.10 N/A N/A N/A
Class PT2-II-61A (6) $9,832,638.55 Class PT2-II-IO-61 N/A N/A
Class PT2-II-61B (7) $9,832,638.55 N/A N/A N/A
Class PT2-II-IO-2 (4) (4) N/A Class PT1-II-2A January 2007
Class PT2-II-IO-3 (4) (4) N/A Class PT1-II-3A February 2007
Class PT2-II-IO-4 (4) (4) N/A Class PT1-II-4A March 2007
Class PT2-II-IO-5 (4) (4) N/A Class PT1-II-5A April 2007
Class PT2-II-IO-6 (4) (4) N/A Class PT1-II-6A May 2007
Class PT2-II-IO-7 (4) (4) N/A Class PT1-II-7A June 2007
Class PT2-II-IO-8 (4) (4) N/A Class PT1-II-8A July 2007
Class PT2-II-IO-9 (4) (4) N/A Class PT1-II-9A August 2007
Class PT2-II-IO-10 (4) (4) N/A Class PT1-II-10A September 2007
Class PT2-II-IO-11 (4) (4) N/A Class PT1-II-11A October 2007
Class PT2-II-IO-12 (4) (4) N/A Class PT1-II-12A November 2007
Class PT2-II-IO-13 (4) (4) N/A Class PT1-II-13A December 2007
Class PT2-II-IO-14 (4) (4) N/A Class PT1-II-14A January 2008
Class PT2-II-IO-15 (4) (4) N/A Class PT1-II-15A February 2008
Class PT2-II-IO-16 (4) (4) N/A Class PT1-II-16A March 2008
Class PT2-II-IO-17 (4) (4) N/A Class PT1-II-17A April 2008
Class PT2-II-IO-18 (4) (4) N/A Class PT1-II-18A May 2008
Class PT2-II-IO-19 (4) (4) N/A Class PT1-II-19A June 2008
Class PT2-II-IO-20 (4) (4) N/A Class PT1-II-20A July 2008
Class PT2-II-IO-21 (4) (4) N/A Class PT1-II-21A August 2008
Class PT2-II-IO-22 (4) (4) N/A Class PT1-II-22A September 2008
Class PT2-II-IO-23 (4) (4) N/A Class PT1-II-23A October 2008
Class PT2-II-IO-24 (4) (4) N/A Class PT1-II-24A November 2008
Class PT2-II-IO-25 (4) (4) N/A Class PT1-II-25A December 2008
Class PT2-II-IO-26 (4) (4) N/A Class PT1-II-26A January 2009
Class PT2-II-IO-27 (4) (4) N/A Class PT1-II-27A February 2009
Class PT2-II-IO-28 (4) (4) N/A Class PT1-II-28A March 2009
Class PT2-II-IO-29 (4) (4) N/A Class PT1-II-29A April 2009
Class PT2-II-IO-30 (4) (4) N/A Class PT1-II-30A May 2009
Class PT2-II-IO-31 (4) (4) N/A Class PT1-II-31A June 2009
Class PT2-II-IO-32 (4) (4) N/A Class PT1-II-32A July 2009
Class PT2-II-IO-33 (4) (4) N/A Class PT1-II-33A August 2009
Class PT2-II-IO-34 (4) (4) N/A Class PT1-II-34A September 2009
Class PT2-II-IO-35 (4) (4) N/A Class PT1-II-35A October 2009
Class PT2-II-IO-36 (4) (4) N/A Class PT1-II-36A November 2009
Class PT2-II-IO-37 (4) (4) N/A Class PT1-II-37A December 2009
Class PT2-II-IO-38 (4) (4) N/A Class PT1-II-38A January 2010
Class PT2-II-IO-39 (4) (4) N/A Class PT1-II-39A February 2010
Class PT2-II-IO-40 (4) (4) N/A Class PT1-II-40A March 2010
Class PT2-II-IO-41 (4) (4) N/A Class PT1-II-41A April 2010
Class PT2-II-IO-42 (4) (4) N/A Class PT1-II-42A May 2010
Class PT2-II-IO-43 (4) (4) N/A Class PT1-II-43A June 2010
Class PT2-II-IO-44 (4) (4) N/A Class PT1-II-44A July 2010
Class PT2-II-IO-45 (4) (4) N/A Class PT1-II-45A August 2010
Class PT2-II-IO-46 (4) (4) N/A Class PT1-II-46A September 2010
Class PT2-II-IO-47 (4) (4) N/A Class PT1-II-47A October 2010
Class PT2-II-IO-48 (4) (4) N/A Class PT1-II-48A November 2010
Class PT2-II-IO-49 (4) (4) N/A Class PT1-II-49A December 2010
Class PT2-II-IO-50 (4) (4) N/A Class PT1-II-50A January 2011
Class PT2-II-IO-51 (4) (4) N/A Class PT1-II-51A February 2011
Class PT2-II-IO-52 (4) (4) N/A Class PT1-II-52A March 2011
Class PT2-II-IO-53 (4) (4) N/A Class PT1-II-53A April 2011
Class PT2-II-IO-54 (4) (4) N/A Class PT1-II-54A May 2011
Class PT2-II-IO-55 (4) (4) N/A Class PT1-II-55A June 2011]
Class PT2-II-IO-56 (4) (4) N/A Class PT1-II-56A July 2011
Class PT2-II-IO-57 (4) (4) N/A Class PT1-II-57A August 2011
Class PT2-II-IO-58 (4) (4) N/A Class PT1-II-58A September 2011
Class PT2-II-IO-59 (4) (4) N/A Class PT1-II-59A October 2011
Class PT2-II-IO-60 (4) (4) N/A Class PT1-II-60A November 2011
Class PT2-II-IO-61 (4) (4) N/A Class PT1-II-61A December 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
REMIC Interest Interest Rate Principal Amount Regular Interest
---------------------------- --------------- ---------------------------------------- ------------------
Class LT-A-1 (1) 1/2 initial Class Certificate Balance of A-1
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-2A (1) 1/2 initial Class Certificate Balance of A-2A
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-2B (1) 1/2 initial Class Certificate Balance of A-2B
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-2C (1) 1/2 initial Class Certificate Balance of A-2C
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-A-2D (1) 1/2 initial Class Certificate Balance of A-2D
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-1 (1) 1/2 initial Class Certificate Balance of M-1
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-2 (1) 1/2 initial Class Certificate Balance of M-2
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-3 (1) 1/2 initial Class Certificate Balance of M-3
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-4 (1) 1/2 initial Class Certificate Balance of M-4
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-5 (1) 1/2 initial Class Certificate Balance of M-5
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-6 (1) 1/2 initial Class Certificate Balance of M-6
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-7 (1) 1/2 initial Class Certificate Balance of M-7
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-8 (1) 1/2 initial Class Certificate Balance of M-8
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-M-9 (1) 1/2 initial Class Certificate Balance of M-9
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-B-1 (1) 1/2 initial Class Certificate Balance of B-1
Corresponding Upper-Tier REMIC Regular
Interest
Class LT-B-2 (1) 1/2 initial Class Certificate Balance of B-2
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 Balance N/A
of Group I Mortgage Loans(4)
Class LT-Group II (3) 0.001% aggregate Stated Principal Balance N/A
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.
Initial Corresponding
Upper-Tier REMIC Upper-Tier Principal Class of
Interest Interest Rate Upper-Tier Amount Certificates
------------------- -------------- ----------------- -------------
Class A-1 (1) $257,050,000 Class A-1
Class A-2A (2) $154,772,000 Class A-2A
Class A-2B (2) $59,281,000 Class A-2B
Class A-2C (2) $63,186,000 Class A-2C
Class A-2D (2) $37,996,000 Class A-2D
Class M-1 (3) $28,759,000 Class M-1
Class M-2 (3) $26,601,000 Class M-2
Class M-3 (3) $12,581,000 Class M-3
Class M-4 (3) $11,504,000 Class M-4
Class M-5 (3) $11,143,000 Class M-5
Class M-6 (3) $7,190,000 Class M-6
Class M-7 (3) $8,627,000 Class M-7
Class M-8 (3) $4,674,000 Class M-8
Class M-9 (3) $7,908,000 Class M-9
Class B-1 (3) $8,627,000 Class B-1
Class B-2 (3) $6,831,000 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 $12,222,018.25
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 Class Certificate
Class Designation Pass-Through Rate Balance
----------------- ----------------- -----------------
Class A-1(21) (1) $257,050,000
Class A-2A(21) (2) $154,772,000
Class A-2B(21) (3) $59,281,000
Class A-2C(21) (4) $63,186,000
Class A-2D(21) (5) $37,996,000
Class M-1(21) (6) $28,759,000
Class M-2(21) (7) $26,601,000
Class M-3(21) (8) $12,581,000
Class M-4(21) (9) $11,504,000
Class M-5(21) (10) $11,143,000
Class M-6(21) (11) $7,190,000
Class M-7(21) (12) $8,627,000
Class M-8(21) (13) $4,674,000
Class M-9(21) (14) $7,908,000
Class B-1(21) (15) $8,627,000
Class B-2(21) (16) $6,831,000
Class X (17) (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 Basis Risk Carry Forward Amounts and, without duplication, Upper-Tier
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 Securities Administrator will treat a Class X
Certificateholder's obligation to make payments of Basis Risk Carry
Forward Amounts and, without duplication, Upper-Tier 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 and the right to
receive Class IO Shortfalls as payments made pursuant to a notional
principal contract between the Class X Certificateholders and 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 Securities Administrator will treat a LIBOR
Certificateholder's right to receive payments from the Excess Reserve Fund
Account and the Supplemental Interest Trust, subject to the obligation to
pay Class IO Shortfalls, as payments made pursuant to a notional principal
contract between the Class X Certificateholders and each Class of LIBOR
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 $25, representing a 50% Percentage Interest in
the related Class, (b) the Class RC Certificates will be $25, representing a 25%
Percentage Interest in the related Class, (c) the Class RX Certificates will be
$25, representing a 50% 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 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............... Class B-2, Class R, Class RC, Class RX, Class C,
Class P and Class X Certificates; and any
Certificate with a rating below the lowest
applicable permitted rating under the
Underwriter's Exemption.
LIBOR Certificates........... Class A, Class M and Class B Certificates.
Offered Certificates......... All Classes of Certificates other than the Private
Certificates, the Class P Certificates and the
Class X Certificates.
Physical Certificates........ Class P, Class C, Class X and Residual
Certificates.
Private Certificates......... Class B-1 and Class B-2 Certificates.
Rating Agencies.............. Xxxxx'x and Standard & Poor's.
Regular Certificates......... All Classes of Certificates other than the Class
P, Class C and Residual Certificates.
Residual Certificates........ The Class R, Class RC and Class RX Certificates.
Sequential Class M
Certificates..................Class M-1, Class M-2 and Class M-3 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,
those mortgage servicing practices set forth in Section 3.01(a) of this
Agreement.
Account: Any of the Collection Account, the Distribution Account,
any Escrow Account, the Excess Reserve Fund Account or the Supplemental Interest
Trust. Each Account shall be an Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of 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.
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 12.07.
Advance Reimbursement Amounts: As defined in Section 12.07.
Affiliate: With respect to any Person, any other Person controlling,
controlled by or under common control with such first Person. For the purposes
of this definition, "control" means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Pooling and Servicing Agreement and all amendments
or supplements hereto.
Amount Held for Future Distribution: As to the Certificates on any
Distribution Date, the aggregate amount held in the Collection Account at the
close of business on the related Determination Date on account of (i) Principal
Prepayments, Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds
on the Mortgage Loans received after the end of the related Prepayment Period
and (ii) all Scheduled Payments on the Mortgage Loans due after the end of the
related Due Period.
Analytics Company: Intex Solutions, Inc., or any other bond
analytics service provider identified to the Securities Administrator and 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) With respect to any First Lien Mortgage Loan,
the value of the related Mortgaged Property based upon the appraisal made for
the originator at the time of origination of the Mortgage Loan or the sale price
of the Mortgaged Property at such time of origination, whichever is less, and
(ii) with respect to any Second Lien Mortgage Loan, the value, determined
pursuant to the applicable Underwriting Guidelines, of the related Mortgaged
Property as of the origination of the Second Lien Mortgage Loan; provided,
however, that in the case of a refinanced Mortgage Loan, such value is based
solely upon the appraisal made at the time of origination of such refinanced
Mortgage Loan.
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 Master Servicer (x) the sum of (i)
all scheduled installments of interest (net of the related Expense Fees) and
principal due on the Due Date on such Mortgage Loans in the related Due Period
and received on or prior to the related Determination Date, together with any
P&I Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance
Proceeds and Liquidation Proceeds received during the related Prepayment Period
(in each case, net of unreimbursed expenses incurred in connection with a
liquidation or foreclosure and unreimbursed Advances, if any); (iii) all partial
or full prepayments on the Mortgage Loans received during the related Prepayment
Period together with all Compensating Interest paid by the Servicer in
connection therewith (excluding Prepayment Premiums); (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 Responsible Party or the Depositor, as
applicable, as of such Distribution Date; and (v) the proceeds received with
respect to the termination of the Trust Fund pursuant to clause (a) of Section
11.01, 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 Master Servicer, the Securities Administrator, the Depositor or the Trustee
(or co-trustee) is 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, as applicable, 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 giving effect to (a) with
respect to the Class A-1 Certificates, the lesser of the WAC Cap and the Loan
Group I Cap, (b) with respect to the Class A-2 Certificates, 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
Florida, New York, California, Maryland and Minnesota, (b) the State in which
the Servicer's servicing operations are located, or (c) the State in which any
Corporate Trust Office is located, are authorized or obligated by law or
executive order to be closed.
Certificate: Any one of the Certificates executed by the Securities
Administrator in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of 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 Securities Administrator is entitled to
rely conclusively on a certification of the Depositor or any Affiliate of the
Depositor in determining which Certificates are registered in the name of an
Affiliate of the Depositor.
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) 59.20% 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 aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), (C) 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), (D) 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), (E) 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), (F) 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), (G) 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), (H) 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 (I) the Class
Certificate Balance of the Class B-1 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 94.70% 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 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 aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), (C) 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), (D) 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), (E) 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), (F) 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), (G) 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), (H) 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), (I) the Class
Certificate Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date) and (J) the Class Certificate Balance of the Class B-2 Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (A) the
product of (x) 96.60% 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 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) from Available Funds 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-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-3 Certificates: All Certificates bearing the class
designation of "Class M-3."
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 aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), and (C) 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) 81.30% 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-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 aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), (C) 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 (D) 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) 84.40% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-6 Certificates: All Certificates bearing the class
designation of "Class M-5."
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 aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), (C) 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), (D) 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 (E) the Class Certificate Balance of the
Class M-6 Certificates immediately prior to such Distribution Date, over (ii)
the lesser of (A) the product of (x) 86.40% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage Loans
for such Distribution Date over the Overcollateralization Floor.
Class M-7 Certificates: All Certificates bearing the class
designation of "Class M-7."
Class M-7 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate 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 aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), (C) 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), (D) 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), (E) 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 (F) 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) 88.80% 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-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 aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), (C) 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), (D) 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), (E) 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), (F) 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 (G) 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) 90.10% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date, and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-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 aggregate Class Certificate Balance of the Sequential Class M
Certificates (after taking into account the distribution of the Sequential Class
M Principal Distribution Amount on such Distribution Date), (C) 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), (D) 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), (E) 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), (F) 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), (G) 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 (H) 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) 92.30% 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 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 from Available Funds 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: December 21, 2006.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collection Account: As defined in Section 3.10(a).
Combined Loan-to-Value Ratio or CLTV: As of the date of origination
and as to any Second Lien Mortgage Loan, the ratio, expressed as a percentage,
of (a) the sum of (i) the outstanding principal balance of the Second Lien
Mortgage Loan as of the date of origination and (ii) the outstanding principal
balance as of the date of origination of any mortgage loan or mortgage loans
that are senior to or equal in priority to the Second Lien Mortgage Loan and
which are secured by the same Mortgaged Property to (b) the Appraised Value.
Commission: The United States Securities and Exchange Commission.
Compensating Interest: For any Distribution Date and the Servicer,
the lesser of (a) the Prepayment Interest Shortfall, if any, for such
Distribution Date, with respect to Principal Prepayments in Full during the
related Prepayment Period, and (b) the Servicing Fee payable to the Servicer 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: With respect to the Securities
Administrator: (i) for certificate transfer purposes, the office of the
Securities Administrator at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, Attention: Corporate Trust Services, GSAMP 2006-FM3, (ii) for
all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Client Manager GSAMP 06-FM3, or (iii) at such other address as the
Securities Administrator may designate from time to time by notice to the
Certificateholders. With respect to the Trustee, the designated office of the
Trustee 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-GS06F3, facsimile no. (714)
247-6478, 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.
Corresponding
Lower-Tier Upper-Tier REMIC Class of
Class Designation Regular Interest 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: With respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is the aggregate amount of Realized Losses incurred from the Cut-off Date
to the last day of the calendar month preceding the month in which such
Distribution Date occurs and the denominator of which is the Cut-off Date Pool
Principal Balance.
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: December 1, 2006.
Cut-off Date Pool Principal Balance: The aggregate Stated Principal
Balances of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date (after
giving effect to payments of principal due on that date, whether or not
received).
Data Tape Information: The information provided by the Responsible
Party as of the Cut-off Date to the Depositor setting forth the following
information with respect to each Mortgage Loan: (1) the 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) with respect
to First Lien Mortgage Loans, the Loan-to-Value Ratio at origination, and with
respect to Second Lien Mortgage Loans, the Combined Loan-to-Value Ratio at
origination; (8) the Mortgage Interest Rate as of the Cut-off Date; (9) the date
on which the Scheduled Payment was due on the Mortgage Loan and, if such date is
not consistent with the Due Date currently in effect, such Due Date; (10) the
stated maturity date; (11) the amount of the Scheduled Payment as of the Cut-off
Date; (12) the last payment date on which a Scheduled Payment was actually
applied to pay interest and the outstanding principal balance; (13) the original
principal amount of the Mortgage Loan; (14) the principal balance of the
Mortgage Loan as of the close of business on the Cut-off Date, after deduction
of payments of principal due and collected on or before the Cut-off Date; (15)
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, adjustable rate, first lien, second lien); (22)
a code indicating the purpose of the loan (i.e., purchase, rate and term
refinance, equity take-out refinance); (23) a code indicating the documentation
style (i.e., full 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) a code indicating whether the Mortgage Loan is
assumable; (33) the Mortgage Interest Rate adjustment period; (34) the Mortgage
Interest Rate floor; (35) the Mortgage Interest Rate calculation method (i.e.,
30/360, simple interest, other); (36) a code indicating whether the Mortgage
Loan has been modified; (37) the one-year payment history; (38) the Due Date for
the first Scheduled Payment; (39) the original Scheduled Payment due; (40) with
respect to the related Mortgagor, the debt-to-income ratio; (41) the Appraised
Value of the Mortgaged Property; (42) the sales price of the Mortgaged Property
if the Mortgage Loan was originated in connection with the purchase of the
Mortgaged Property; (43) whether the Mortgage Loan is covered by PMI policy and
name of insurer; (44) a code indicating if a Mortgage Loan is or has had a
30-Day Delinquency; (45) with respect to each MERS Designated Mortgage Loan, the
MERS identification number; and (46) a code indicating if the Mortgage Loan is
an Interest Only Mortgage Loan. With respect to the Mortgage Loans in the
aggregate: (1) the number of Mortgage Loans; (2) the current aggregate
outstanding principal balance of the Mortgage Loans; (3) the weighted average
Mortgage Interest Rate of the Mortgage Loans; and (4) the weighted average
maturity of the Mortgage Loans.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding under the United
States Bankruptcy Code in the Scheduled Payment for such Mortgage Loan which
became final and non appealable, except for such a reduction resulting from a
Deficient Valuation or any reduction that results in a permanent forgiveness of
principal.
Defaulted Swap Termination Payment: Any Swap Termination Payment
required to be paid by the Trust to the Swap Provider pursuant to the Interest
Rate Swap Agreement as a result of an Event of Default (as defined in the
Interest Rate Swap Agreement) with respect to which the Swap Provider is the
defaulting party or a Termination Event (as defined in the Interest Rate Swap
Agreement) (other than Illegality or a Tax Event that is not a Tax Event Upon
Merger (each as defined in the Interest Rate Swap Agreement)) with respect to
which the Swap Provider is the sole Affected Party (as defined in the Interest
Rate Swap Agreement).
Deficient Valuation: With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the United States
Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: A Mortgage Loan that is removed from the
Trust pursuant to the terms of this 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 and the Securities Administrator, that (a) is incorporated
under the laws of the United States of America or any State thereof, (b) is
subject to supervision and examination by federal or state banking authorities
and (c) has outstanding unsecured commercial paper or other short-term unsecured
debt obligations that are rated "P-1" by Moody's, "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.
Deutsche Bank: Deutsche Bank National Trust Company, a national
banking association, and its successors in interest.
Distribution Account: The separate Eligible Account created and
maintained by the Master Servicer pursuant to Section 3.27(b) in the name of the
Securities Administrator as paying agent on behalf of Trustee, for the benefit
of the Certificateholders and designated "Xxxxx Fargo Bank, N.A., in trust for
registered Holders of GSAMP Trust 2006-FM3 Mortgage Pass-Through Certificates,
Series 2006-FM3." 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
January 2007.
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
Securities Administrator. 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 Master Servicer, the Servicer, the Securities Administrator 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 Securities Administrator pursuant to Section 3.27(a) in
the name of the Securities Administrator for the benefit of the Regular
Certificateholders and designated "Xxxxx Fargo Bank, N.A. in trust for
registered Holders of GSAMP Trust 2006-FM3, Mortgage Pass-Through Certificates,
Series 2006-FM3." 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 Master Servicing Fee Rate.
Expense Fees: As to each Mortgage Loan, the sum of the Servicing Fee
and the Master Servicing 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 Mae: The Federal National Mortgage Association and its
successors in interest.
Xxxxxx Xxx Guides: The Xxxxxx Mae Seller's Guide and the Xxxxxx Xxx
Servicer's Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, and its successors
in interest.
Final Recovery Determination: With respect to any defaulted Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO Property purchased
by the Depositor or the Responsible Party as contemplated by this Agreement), a
determination made by the Servicer that all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries which the
Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
Final Scheduled Distribution Date: The Final Scheduled Distribution
Date for each Class of Certificates is the Distribution Date occurring in
November 2036.
First Lien Mortgage Loan: Any Mortgage Loan secured by a first lien
Mortgage on the related Mortgaged Property.
Fitch: Fitch, Inc., and its successors in interest. If Fitch is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 12.05(b) the address for notices to Fitch shall be Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: MBS Monitoring - GSAMP
Trust 2006-FM3, or such other address as Fitch may hereafter furnish to the
Depositor, the Servicer, the Master Servicer, the Securities Administrator and
the Trustee.
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.
Fremont: Fremont Investment & Loan, a California corporation, 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-Group I, Class LT-Group II, 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 December 21, 2006, between Xxxxxxx Xxxxx Mitsui Marine Derivative
Products, L.P. (as assigned to and assumed by the Swap Provider) and Xxxxxxx
Sachs Mortgage Company or any other swap agreement (including any related
schedules) entered into by the Securities Administrator 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 attributable to such Loan Group
(net of the applicable fees payable to the Servicer and Master Servicer) 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.
For purposes of this Agreement, any Net Swap Payments, Net Swap Receipts or Swap
Termination Payments (other than Defaulted Swap Termination Payments) shall be
allocated by the Securities Administrator between Loan Groups based on the
respective aggregate Stated Principal Balance of the Mortgage Loans in each Loan
Group.
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 Securities Administrator on the related
LIBOR Determination Date on the basis of the offered rate for one-month U.S.
dollar deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m.
(London time) on such date; provided, that if such rate does not appear on
Telerate Page 3750, the rate for such date will be determined on the basis of
the rates at which one-month U.S. dollar deposits are offered by the Reference
Banks at approximately 11:00 a.m. (London time) on such date to prime banks in
the London interbank market. In such event, the Securities Administrator shall
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two 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 Securities
Administrator (after consultation with the Depositor), at approximately 11:00
a.m. (New York City time) on such date for one-month U.S. dollar 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 has certified (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.
Master Servicer: Xxxxx Fargo, and if a successor master servicer is
appointed hereunder, such successor.
Master Servicer Event of Default: As defined in Section 9.04.
Master Servicing Fee: With respect to each Mortgage Loan and any
Distribution Date, an amount equal to the product of (i) one-twelfth of the
Master Servicing Fee Rate and (ii) the Stated Principal Balance of such Mortgage
Loan as of the first day of the Due Period preceding such Distribution Date.
Such fee shall be payable monthly.
Master Servicing Fee Rate: With respect to any Mortgage Loan, a per
annum rate equal to .01%.
Master Servicing Officer: Any officer of the Master Servicer
involved in, or responsible for, the administration and master servicing of the
Mortgage Loans.
MERS: As defined in Section 2.01.
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 12.05(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 Securities Administrator,
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, including all riders
thereto.
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 Securities Administrator 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 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) with respect to First
Lien Mortgage Loans, the Loan-to-Value Ratio at origination, and with respect to
Second Lien Mortgage Loans, the Combined Loan-to-Value Ratio at origination; (8)
the Mortgage Interest Rate as of the Cut-off Date; (9) the date on which the
Scheduled Payment was due on the Mortgage Loan and, if such date is not
consistent with the Due Date currently in effect, such Due Date; (10) the stated
maturity date; (11) the amount of the Scheduled Payment as of the Cut-off Date;
(12) the last payment date on which a Scheduled Payment was actually applied to
pay interest and the outstanding principal balance; (13) the original principal
amount of the Mortgage Loan; (14) the principal balance of the Mortgage Loan as
of the close of business on the Cut-off Date, after deduction of payments of
principal due and collected on or before the Cut-off Date; (15) 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, adjustable rate, first lien, second lien); (22)
a code indicating the purpose of the loan (i.e., purchase, rate and term
refinance, equity take-out refinance); (23) a code indicating the documentation
style (i.e., full 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) a code indicating whether the Mortgage Loan is
assumable; (33) the Mortgage Interest Rate adjustment period; (34) the Mortgage
Interest Rate floor; (35) the Mortgage Interest Rate calculation method (i.e.,
30/360, simple interest, other); (36) a code indicating whether the Mortgage
Loan has been modified; (37) the one-year payment history; (38) the Due Date for
the first Scheduled Payment; (39) the original Scheduled Payment due; (40) with
respect to the related Mortgagor, the debt-to-income ratio; (41) the Appraised
Value of the Mortgaged Property; (42) the sales price of the Mortgaged Property
if the Mortgage Loan was originated in connection with the purchase of the
Mortgaged Property; (43) whether the Mortgage Loan is covered by PMI policy and
name of insurer; (44) a code indicating whether the Mortgage Loan is a Group I
Mortgage Loan or a Group II Mortgage Loan; (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. 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, including all riders thereto.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to 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 delinquent and each REO Property.
Non-Permitted Transferee: As defined in Section 8.11(f).
Nonrecoverable P&I Advance: Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan that, in the good faith
business judgment of the Servicer, the Master Servicer or any successor Master
Servicer including the Trustee (in its capacity as successor Master 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 as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advances previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the good faith business judgment of the Servicer, the Master Servicer
or any successor Master Servicer including the Trustee (in its capacity as
successor Master 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 11.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by an officer of the
Servicer or the Master Servicer, as applicable, 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 and Securities Administrator 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 and/or the Securities Administrator; 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 Master Servicer of the Mortgage Loans, (ii) does not have
any material direct or indirect financial interest in the Servicer or the Master
Servicer of the Mortgage Loans or in an Affiliate of the Servicer and (iii) is
not connected with the Servicer or the Master Servicer of the Mortgage Loans as
an officer, employee, director or person performing similar functions.
Optional Termination Date: The date determined as follows:
(i) the Servicer (at the direction of the Majority Class C
Certificateholder (as evidenced on the Certificate Register)), pursuant to
Section 11.01, 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); and
(ii) Fremont, pursuant to Section 11.01, individually, may, at its
option, cause the Optional Termination Date to occur on any Distribution
Date on which the aggregate Stated Principal Balance of the Mortgage
Loans, as of the last day of the related Due Period, is equal to 5% or
less of the Cut-off Date Pool Principal Balance.
Original Purchase Date: With respect to any Mortgage Loan, the date
on which the Responsible Party sold such Mortgage Loan to the Sponsor pursuant
to the Purchase Agreement.
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 Securities
Administrator or delivered to the Securities Administrator for
cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Securities
Administrator pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
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.
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).
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, any advance made by the
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, 0.1400%; Class A-2A Certificates, 0.0800%; Class A-2B
Certificates, 0.1400%; Class A-2C Certificates, 0.2000%; Class A-2D
Certificates, 0.2300%; Class M-1 Certificates, 0.2500%; Class M-2 Certificates,
0.2800%; Class M-3 Certificates, 0.3800%; Class M-4 Certificates, 0.3900%; Class
M-5 Certificates, 0.4000%; Class M-6 Certificates, 0.4600%; Class M-7
Certificates, 0.9000%; Class M-8 Certificates, 2.2500%; Class M-9 Certificates,
2.7500%; Class B-1 Certificates, 2.5000%; and Class B-2 Certificates, 2.5000%.
On the first possible Optional Termination Date, the Pass-Through Margins shall
increase to: Class A-1 Certificates, 0.2800%; Class A-2A Certificates, 0.1600%;
Class A-2B Certificates, 0.2800%; Class A-2C Certificates, 0.4000%; Class A-2D
Certificates, 0.4600%; Class M-1 Certificates, 0.3750%; Class M-2 Certificates,
0.4200%; Class M-3 Certificates, 0.5700%; Class M-4 Certificates, 0.5850%; Class
M-5 Certificates, 0.6000%; Class M-6 Certificates, 0.6900%; Class M-7
Certificates, 1.3500%; Class M-8 Certificates, 3.3750%; Class M-9 Certificates,
4.1250%; Class B-1 Certificates, 3.7500%; and Class B-2 Certificates, 3.7500%.
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, the Securities Administrator 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 & 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 Securities Administrator 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 Securities
Administrator, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to the
Rating Agencies as a permitted investment of funds backing "Aaa" or "AAA"
rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
For investments in the Distribution Account (except during the Securities
Administrator 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).
PMSR Fee: As defined in the letter agreement, dated December 21,
2006, between Fremont and the Sponsor.
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 Excess: With respect to any Distribution Date,
the sum of, for each Mortgage Loan that was, during the portion of the
Prepayment Period from the first day of the month in which such Distribution
Date occurs through the 15th day of the month in which such Distribution Date
occurs, the subject of a Principal Prepayment in Full 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 in Full for
such Mortgage Loan, (c) 1/360 and (d) the number of days commencing on the first
day of the calendar month in which such Distribution Date occurs and ending on
the date on which such Principal Prepayment in Full was applied.
Prepayment Interest Shortfall: With respect to any Distribution
Date, the sum of, for each Mortgage Loan that was, during the portion of the
Prepayment Period from the 16th day of the calendar month preceding such
Distribution Date to the last day of the calendar month preceding such
Distribution Date, the subject of a Principal Prepayment in Full 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.
Prepayment Period: With respect to any Distribution Date, (i) with
respect to voluntary Principal Prepayments in Full, the period commencing on the
16th day of the calendar month preceding the calendar month in which such
Distribution Date occurs (or in the case of the first Distribution Date, from
the Cut-off Date) and ending on the 15th calendar month in which the related
Distribution Date occurs, or (ii) the calendar month preceding the calendar
month in which such Distribution Date occurs, with respect to any Principal
Prepayments other than voluntary Principal Prepayments in Full.
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 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 on or
prior to the related Determination Date or advanced by the Servicer for the
related Remittance Date, (ii) all Principal Prepayments received during the
related Prepayment Period, (iii) all Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds on the Mortgage Loans allocable to principal actually
collected by the Servicer during the related Prepayment Period, (iv) the portion
of the Repurchase Price allocable to principal with respect to each Deleted
Mortgage Loan, the repurchase obligation for which arose during the related
Prepayment Period, that was repurchased during the period from the prior
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 11.01 (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 December 19,
2006, relating to the Offered Certificates.
PTCE 95-60: As defined in Section 5.02(b).
PUD: A planned unit development.
Purchase Agreement: The Amended and Restated Flow Mortgage Loan
Purchase and Warranties Agreement, dated as of January 1, 2006, as amended by
Amendment No. 1, dated as of August 1, 2006, each by and between the Responsible
Party and the Sponsor, copies of each of which are attached hereto as Exhibit
BB.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Securities Administrator. References herein to a given rating or rating category
of a Rating Agency shall mean such rating category without giving effect to any
modifiers. For purposes of Section 12.05(b), the addresses for notices to each
Rating Agency shall be the address specified therefor in the definition
corresponding to the name of such Rating Agency, or such other address as either
such Rating Agency may hereafter furnish to the Depositor, the Securities
Administrator, the Trustee and the Servicer.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid principal
balance of such Liquidated Mortgage Loan together with accrued and unpaid
interest thereon exceeds (b) the Liquidation Proceeds with respect thereto net
of the expenses incurred by the Servicer in connection with the liquidation of
such Liquidated Mortgage Loan and net of the amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date and any Class of
Certificates, 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 the applicable Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506 - 1,631 (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 or
local statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, no later
than 1:30 PM New York City Time on the 21st day of each month or, if such day is
not a Business Day, the immediately succeeding Business Day.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Imputed Interest: As to any REO Property, for any period, an
amount equivalent to interest (at the Mortgage Interest Rate net of the
Servicing Fee Rate that would have been applicable to the related Mortgage Loan
had it been outstanding) on the unpaid principal balance of the Mortgage Loan as
of the date of acquisition thereof (as such balance is reduced pursuant to
Section 3.17 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.
Representations and Warranties Agreement: The Representations and
Warranties Agreement, dated as of December 21, 2006, by and between the Sponsor
and the Depositor, a copy of which is attached hereto as Exhibit N.
Repurchase Price: With respect to any Mortgage Loan, 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 Securities Administrator to the
date of repurchase, (iii) all unreimbursed Servicing Advances, (iv) all expenses
incurred by the Servicer, the Master 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 Master Servicer's or the Trustee's,
as the case may be, enforcement of the Responsible Party'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.
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, the
Master Servicer, or the Securities Administrator, any vice president, any
assistant vice president, any assistant secretary, any assistant treasurer, any
associate assigned, with respect to the Trustee or any other officer of the
Trustee, the Master Servicer or the Securities Administrator 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: Fremont.
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.
Second Lien Mortgage Loan: A Mortgage Loan secured by a second lien
Mortgage on the related Mortgaged Property.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo, and if a successor securities
administrator is appointed hereunder, such successor.
Securities Administrator Float Period: With respect to the
Distribution Date and the related amounts in the Distribution Account, the
period commencing on the fourth Business Day immediately preceding such
Distribution Date and ending on such Distribution Date.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
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, 40.80%.
Sequential Class M Certificates: As specified in the Preliminary
Statement.
Sequential Class M 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 aggregate Class Certificate Balance of the Sequential Class M
Certificates immediately prior to such Distribution Date, over (ii) the lesser
of (A) the product of (x) 78.10% and (y) the aggregate Stated Principal Balance
of the Mortgage Loans for such Distribution Date, and (B) the excess, if any, of
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Servicer: Fremont, in its capacity as servicer hereunder, 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 (to the extent the related
borrower under the Mortgage Loan is obligated to pay), on, or after the Cut-off
Date by the Servicer in the performance of its servicing obligations in
connection with a default, delinquency or other unanticipated event, including,
but not limited to, the cost of (i) the preservation, restoration, inspection
and protection of a Mortgaged Property, (ii) any enforcement, administrative or
judicial proceedings, including foreclosures and litigation, in respect of a
particular Mortgage Loan, (iii) the management (including reasonable fees in
connection therewith) and liquidation of any REO Property and (iv) the
performance of its obligations under Sections 3.01, 3.07, 3.09, 3.13 and 3.15.
Servicing Advances also include any reasonable "out-of-pocket" costs and
expenses (including legal fees) incurred by the Servicer in connection with
executing and recording instruments of satisfaction, deeds of reconveyance or
Assignments of Mortgage in connection with any satisfaction or foreclosures in
respect of any Mortgage Loan to the extent not recovered from the Mortgagor or
otherwise payable under this Agreement and obtaining or correcting any legal
documentation required to be included in the Mortgage Files and necessary for
the Servicer to perform its obligations under this Agreement, including
correcting any outstanding title issues (i.e., any lien or encumbrance on the
Mortgaged Property that prevents the effective enforcement of the intended lien
position). The Servicer shall not be required to make any Nonrecoverable
Servicing Advances.
Servicing 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 the Servicer, each Mortgage Loan
serviced by the Servicer and for 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 Due Period
preceding the month in which such Distribution Date occurs. Such fee shall be
payable monthly. The Servicing Fee is payable solely from the interest portion
(including recoveries with respect to interest from Liquidation Proceeds,
Insurance Proceeds, Condemnation Proceeds and proceeds received with respect to
REO Properties, to the extent permitted by Section 3.11) of such Scheduled
Payment collected by the Servicer or as otherwise provided under Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.50% per
annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer consisting of originals or copies of all documents in
the Mortgage File which are not delivered to the Trustee in the Custodial File
and copies of the Mortgage Loan Documents set forth in Exhibit 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 Master Servicer and the Trustee by the Servicer on the Closing Date pursuant
to this Agreement, as such list may from time to time be amended.
Servicing Transfer Costs: All reasonable out-of-pocket costs and
expenses incurred by the Master Servicer or 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 Master Servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the Master Servicer
(or any successor Servicer appointed pursuant to Section 7.02) to service the
Mortgage Loans properly and effectively.
Similar Law: As defined in Section 5.02(b).
60+ Day Delinquent Mortgage Loan: 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 delinquent, each Mortgage Loan in foreclosure, each
REO Property and each Mortgage Loan for which the Mortgagor has filed for
bankruptcy.
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, and (iii) enters into a Special Servicing Agreement meeting the
requirements set forth in Section 3.29 of this Agreement, the foregoing item
(iii) being certified to the Trustee in writing by the Majority Class X
Certificateholder.
Special Servicing Agreement: An agreement among the Special
Servicer, the Majority Class X Certificateholder and the Trustee pursuant to
which the Special Servicer shall (a) agree to service and administer certain 60+
Day Delinquent Mortgage Loans pursuant to Section 3.29 and (b) make certain
representations and warranties regarding the Special Servicer, (ii) agree to be
bound by 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 acceptable to the Rating Agencies. The Servicer shall have
the right to review such agreement to assure that it contains or incorporates by
reference the indemnification provision described in the third to last sentence
of Section 3.29. Such Special Servicing Agreement, if executed by the Trustee,
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 with respect to such agreement.
Specified Overcollateralized Amount: Prior to the Stepdown Date, an
amount equal to 1.70% of the Cut-off Date Pool Principal Balance. On and after
the Stepdown Date, an amount equal to 3.40% 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 will instead 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. 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 Agreements.
Standard & Poor's: Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., and its successors in interest. If Standard &
Poor's is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 12.05(b) the address for notices to Standard & Poor's shall
be Standard & Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Surveillance Group - GSAMP Trust 2006-FM3, or such other
address as Standard & Poor's may hereafter furnish to the Depositor, the
Securities Administrator, the Servicer and the Trustee.
Standard & Poor's Glossary: Version 5.7 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 Securities Administrator with respect to the related Mortgage Loan
representing payments or recoveries of principal including advances in respect
of Scheduled Payments of principal. For purposes of any Distribution Date, the
Stated Principal Balance of any Mortgage Loan will give effect to any Scheduled
Payments of principal received by the Servicer on or prior to the related
Determination Date or advanced by the Servicer for the related Remittance Date
and any unscheduled principal payments and other unscheduled principal
collections received during the related Prepayment Period, and the Stated
Principal Balance of any Mortgage Loan that has prepaid in full or has become a
Liquidated Mortgage Loan during the related Prepayment Period shall be zero.
Stepdown Date: The earlier to occur of (a) the date on which the
aggregate Class Certificate Balances of the Class A Certificates have been
reduced to zero, and (b) the later to occur of (i) the Distribution Date in
January 2010, 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 or a Subservicer, 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 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, 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
by the Responsible Party for a Deleted Mortgage Loan pursuant to the terms of
the Purchase Agreement.
Substitution Adjustment Amount: The meaning ascribed to such term
pursuant to Section 2.03(f).
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 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 Mitsui Marine Derivative Products,
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).
Termination Price: As defined in Section 11.01.
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 on or prior to the related Determination Date (exclusive of any
Prepayment Interest Excesses) or advanced by the Servicer 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 (to the extent they are not
Replacement Swap Provider Payments), other than Defaulted Swap Termination
Payments, payable to the Swap Provider 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 39.41% 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
---------------------------- --------------------------------------------------
January 2009 - December 2009 1.35% for the first month,
plus an additional 1/12th of 1.60% for each month
thereafter
January 2010 - December 2010 2.95% for the first month,
plus an additional 1/12th of 1.70% for each month
thereafter
January 2011 - December 2011 4.65% for the first month,
plus an additional 1/12th of 1.35% for each month
thereafter
January 2012 - December 2012 6.00% for the first month,
plus an additional 1/12th of 0.75% for each month
thereafter
January 2013 and thereafter 6.75%
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 rights of the
Depositor under the Representations and Warranties Agreement; (v) the Interest
Rate Swap Agreement; (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 and, if a successor trustee is appointed
hereunder, such successor.
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, N.A., a national banking association,
and its successors in interest.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust,
hereby accepts the Trust Fund.
(b) In connection with 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 0.50% of the
Mortgage Notes for which there is a lost note affidavit and a copy of the
Mortgage Note) bearing all intervening endorsements, endorsed "Pay to the
order of _________, without recourse" and signed in the name of the last
endorsee. To the extent that there is no room on the face of the Mortgage
Notes for endorsements, the endorsement may be contained on an allonge
unless the Trustee is 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, if provided;
(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 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 (or certified by) the
Responsible Party (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 any, 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 originator to the
last endorsee (or the Mortgage Electronic Registration System, Inc.
("MERS"), with respect to each MERS Designated Mortgage Loan) with
evidence of recording thereon, or if any such intervening assignment has
not been returned from the applicable recording office or has been lost or
if such public recording office retains the original recorded assignments
of mortgage, the Responsible Party 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 (or certified by) the Responsible Party (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 or copy of mortgagee policy of title insurance or
a copy of the related policy binder or commitment for title certified from
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 in
enforcing the obligations of the Sponsor under the Representations and
Warranties Agreement.
Each Mortgage Loan for which a Mortgage Note is missing shall be
evidenced by a lost note affidavit as of the Closing Date. In the event, for
purposes of the Closing Date, one or more lost note affidavits are provided to
cover multiple missing Mortgage Notes, the Responsible Party shall 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 (which may be an exception report) the Responsible
Party to take such remedial actions, including, without limitation, the
repurchase by the Responsible Party of such Mortgage Loan within 30 days of the
Closing Date.
The Responsible Party shall deliver to the Trustee the applicable
recorded document promptly upon receipt from the respective recording office but
in no event later than 120 days from the Closing Date.
If any Mortgage has been recorded in the name of 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.
From time to time, the Responsible Party shall forward, with respect
to the Mortgage Loans, to the Trustee additional original documents, and
additional documents evidencing an assumption, modification, consolidation or
extension of a Mortgage Loan approved by the Responsible Party, in accordance
with the terms of this Agreement. All such mortgage documents held by the
Trustee as to each Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Responsible Party shall deliver
to the Trustee Assignments of Mortgages, in blank, for each Mortgage Loan
(except with respect to each MERS Designated Mortgage Loan). The Responsible
Party shall cause the Assignments of Mortgage with completed recording
information to be provided to the Depositor in a reasonably acceptable manner.
Subject to the following sentence, no later than thirty (30) Business Days
following the later of the Closing Date and the date of receipt by the Depositor
of the fully completed Assignments of Mortgages in recordable form, the
Depositor shall promptly submit or cause to be submitted for recording, at the
expense of the Responsible Party or the Depositor, at no expense to the Trust
Fund, the Servicer or the Trustee in the appropriate public office for real
property records, each Assignment of Mortgage referred to in Section 2.01(b)(v).
Notwithstanding the foregoing, 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 if such Mortgage Loan is a MERS
designated Mortgage Loan. The Mortgage shall be assigned by the Responsible
Party at the Responsible Party's or the Depositor's expense to "Deutsche Bank
National Trust Company as trustee under the Pooling and Servicing Agreement
dated as of December 1, 2006, GSAMP Trust 2006-FM3." In the event that any such
assignment is lost or returned unrecorded because of a defect therein, the
Responsible Party shall promptly prepare a substitute assignment to cure such
defect and thereafter cause each such assignment to be duly recorded at the
expense of the Responsible Party or the Depositor.
On or prior to the Closing Date, the Depositor shall deliver to the
Trustee a copy of the Data Tape Information in electronic, machine readable
medium in a form mutually acceptable to the Depositor 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 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 following the Closing Date, and in the event that
the Responsible Party does not cure such failure within 30 days of discovery or
receipt of written notification of such failure from the Depositor, the related
Mortgage Loan shall, upon the request of the Depositor, be repurchased by the
Responsible Party at the price and in the manner specified in Section 2.03. The
foregoing repurchase obligation 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 "GSAMP Trust 2006-FM3" 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) 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 Securities Administrator 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 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.
As a condition to the closing on the Closing Date, the Trustee shall
deliver via facsimile or .pdf (with original to follow the next Business Day) to
the Depositor, the Master Servicer and the Servicer an Initial Certification
prior to the Closing Date, or as the Depositor agrees to, on the Closing Date,
certifying receipt of a Mortgage Note and Assignment of Mortgage for each
Mortgage Loan with any exceptions noted on the exception report attached
thereto. 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, the Master Servicer and the Servicer an Initial Certification, in the
form annexed hereto as Exhibit F, and shall deliver to the Depositor, the Master
Servicer and the Servicer a Document Certification and Exception Report, in the
form annexed hereto as Exhibit G, within 90 days 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 applicable
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 Responsible Party shall to deliver to the Servicer copies of all
trailing documents required to be included in the Custodial File at the same
time the original or certified copies thereof are delivered to the Trustee,
including but not limited to such documents as the title insurance policy and
any other Mortgage Loan Documents upon return from the public recording office.
The Responsible Party shall deliver such documents, at the Responsible Party's
expense, to the Servicer and in no event shall the Servicer be responsible for
any expenses relating to such delivery obligation.
Section 2.03 Representations, Warranties and Covenants of the
Responsible Party and the Servicer (a) The Servicer hereby makes the
representations and warranties set forth in Schedule II hereto to the Depositor,
the Master Servicer, the Securities Administrator and the Trustee as of the
Closing Date. The Responsible Party hereby makes the representations and
warranties as to the individual Mortgage Loans set forth in Schedule III hereto
to the Depositor, the Master Servicer, the Securities Administrator and the
Trustee as of the dates set forth in such Schedule. The Responsible Party hereby
makes the representations and warranties set forth in Schedule IV hereto to the
Depositor, the Master Servicer, the Securities Administrator and the Trustee as
of the dates set forth in such Schedule.
(b) It is understood and agreed by the Servicer, the Responsible
Party and the Trustee that the representations and warranties set forth in this
Section 2.03 shall survive the transfer of the Mortgage Loans by the Depositor
to the Trustee, and shall inure to the benefit of the Depositor, the Servicer
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 Responsible
Party, the Master Servicer, the Securities Administrator, 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) Within 60 days of the earlier of either discovery by or notice
to the Responsible Party of any breach of a representation or warranty set forth
in Section 2.03(a) that materially and adversely affects the value of any
Mortgage Loan or the interest of the Trustee or the Certificateholders therein,
the Responsible Party shall cause to be remedied a material defect in a document
constituting part of a Mortgage File or promptly to cure such breach in all
material respects and, if such defect or breach cannot be remedied, the
Responsible Party shall, at the Depositor's option as specified in writing and
provided to the Responsible Party and the Securities Administrator, (i) if such
60 day period expires prior to the second anniversary of the Closing Date,
remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and
substitute in its place a Substitute Mortgage Loan, in the manner and subject to
the conditions set forth in this Section 2.03, or (ii) at the Depositor's
option, repurchase such Mortgage Loan at the Repurchase Price; provided,
however, that any such substitution pursuant to clause (i) above shall not be
effected prior to the delivery to the Trustee a Request for Release
substantially in the form of Exhibit L, and the Mortgage File for any such
Substitute Mortgage Loan. In the event that a breach shall involve any
representation or warranty set forth in Schedule IV, and such breach cannot be
cured within 60 days of the earlier of either discovery by or notice to the
Responsible Party of such breach, all of the Mortgage Loans shall, at the
Depositor's option, be repurchased by the Responsible Party at the Repurchase
Price. In the event that any original document evidencing an assumption,
modification, consolidation or extension of any Mortgage Loan, including an
original or copy of any document submitted for recordation to the appropriate
public recording office is not delivered to the Trustee within 180 days
following the Original Sale Date and in the event that the Responsible Party
does not cure such failure within 30 days of the earlier of either discovery by
or notice to the Responsible Party, such Mortgage Loan shall, at the Depositor's
option, be repurchased by the Responsible Party at the Repurchase Price,
provided, however, that the foregoing repurchase obligation 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, (i) the Responsible Party shall deliver
a recording receipt of such recording office or, if such recording receipt is
not available, an Officer's Certificate of a servicing officer of the
Responsible Party, confirming that such documents have been accepted for
recording (upon request of the Trustee and delivery by the Trustee to the
Responsible Party of a schedule of the related Mortgage Loans, which may be by
way of an exception report, the Responsible Party shall reissue and deliver to
the Trustee or its designee said Officer's Certificate relating to the related
Mortgage Loans), and (ii) such document is delivered within twelve (12) months
of the related Closing Date. Notwithstanding the foregoing, a breach (x) which
causes a Mortgage Loan not to constitute a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code or (y) by the Responsible Party of any
of the representations and warranties set forth in paragraphs (g), (i), (ss),
(tt), (uu), (bbb), (ccc), (ddd), (eee), (mmm), (ooo), (qqq) or (rrr) of Schedule
III, each case, will be deemed automatically to materially and adversely affect
the value of such Mortgage Loan and the interests of the Trustee and
Certificateholders in such Mortgage Loan. In the event that the Trustee receives
notice of a breach by the Responsible Party of any of the representations and
warranties set forth in paragraphs (g), (i), (ss), (tt), (uu), (bbb), (ccc),
(ddd), (eee), (mmm), (ooo), (qqq) or (rrr) of Schedule III, the Trustee shall
give notice of such breach to the Responsible Party and request the Responsible
Party to repurchase the Mortgage Loan at the Repurchase Price within 60 days of
the Responsible Party's receipt of such notice. The Responsible Party shall
repurchase each such Deleted Mortgage Loan within 60 days of the earlier of
discovery or receipt of notice with respect to each such Deleted Mortgage Loan.
(d) With respect to any Substitute Mortgage Loan or Loans, the
Responsible Party shall deliver to the Trustee for the benefit of the
Certificateholders the Mortgage Note, the Mortgage, the related assignment of
the Mortgage, and such other documents and agreements as are required by Section
2.01, with the Mortgage Note endorsed and the Mortgage assigned as required by
Section 2.01. No substitution is permitted to be made in any calendar month
after the Determination Date for such month. Scheduled Payments due with respect
to Substitute Mortgage Loans in the Due Period of substitution shall not be part
of the Trust Fund and will be retained by the Responsible Party on the next
succeeding Distribution Date. For the Due Period of substitution, distributions
to Certificateholders will include the Scheduled Payment due on any Deleted
Mortgage Loan for such Due Period and thereafter the Responsible Party shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan.
(e) The Servicer shall, based on information provided by the
Responsible Party, 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 such
substitution, the Substitute Mortgage Loan or Loans shall be subject to the
terms of this Agreement in all respects, and the Responsible Party shall be
deemed to have made with respect to such Substitute Mortgage Loan or Loans, as
of the date of substitution, the representations and warranties made pursuant to
Section 2.03(b) with respect to such Mortgage Loan. Upon any such substitution
and the deposit to the Collection Account of the amount required to be deposited
therein in connection with such substitution as described in the following
paragraph, the Trustee shall release the Mortgage File held for the benefit of
the Certificateholders relating to such Deleted Mortgage Loan to the Responsible
Party and shall execute and deliver at the Responsible Party's direction such
instruments of transfer or assignment prepared by the Responsible Party, in each
case without recourse, representation or warranty as shall be necessary to vest
title in the Responsible Party, or its designee, the Trustee's interest in any
Deleted Mortgage Loan substituted for pursuant to this Section 2.03.
(f) For any month in which the Responsible Party 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 amount of
such shortage (the "Substitution Adjustment Amount") plus, if the Responsible
Party is not the Servicer, an amount equal to the aggregate of any unreimbursed
Advances and Servicing Advances with respect to such Deleted Mortgage Loans
shall be deposited into the Collection Account by the Responsible Party on or
before the next Remittance Date.
(g) In addition to such repurchase obligation, the Responsible Party
shall indemnify the Depositor, its Affiliates, the Servicer, the Master
Servicer, the Securities Administrator and the Trustee and hold such parties
harmless against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and other costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a breach by the Responsible Party of any of
its representations and warranties contained in the Purchase Agreement or this
Agreement.
(h) In the event that a Mortgage Loan shall have been repurchased
pursuant to this Agreement, the Repurchase Price thereof shall be deposited in
the Collection Account by the Servicer pursuant to Section 3.10 on or before the
next Remittance Date and upon such deposit of the Repurchase Price and receipt
of a Request for Release in the form of Exhibit K hereto, the Trustee shall
release the related Custodial File held for the benefit of the
Certificateholders to such Person as directed by the Servicer, and the Trustee
shall execute and deliver at such Person's direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
representation or warranty 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 obligation, shall constitute the sole remedy against such
Persons respecting such breach available to Certificateholders, the Depositor,
the Servicer, the Securities Administrator, the Master 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, the Securities Administrator has
executed and delivered to or upon the order of the Depositor, the Certificates
in authorized Denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and future
Holders of the Certificates.
Section 2.05 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 November 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 Responsible Party,
the Trustee, the Master Servicer, the Securities Administrator 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
other parties hereto, constitutes or will constitute the legal, valid and
binding agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or registration
or filing with, or notice to, any governmental authority or court is required
for the execution, delivery and performance of or compliance by the Depositor
with this Agreement or the consummation by the 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 12.04.
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 and the Servicer.
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 Responsible Party or the Sponsor pursuant
to this Agreement or the Representations and Warranties Agreement, as
applicable, the party discovering such breach shall give prompt written notice
thereof to the other parties to this Agreement and the Sponsor, as applicable.
The Trustee shall take such action, with the Depositor's consent, with respect
to such breach under this Agreement or the Representations and Warranties
Agreement, as applicable, as may be necessary or appropriate to enforce the
rights of the Trust with respect thereto. 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 Trustee shall be entitled to be
reimbursed therefor out of the Collection Account.
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
related 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.
To the extent consistent with the foregoing, the Servicer shall seek
to maximize the timely and complete recovery of principal and interest on the
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 the Trustee, solely in its capacity as Trustee for the Trust,
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 the Trustee shall 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,
substantially in the form of Exhibit S, 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 Securities Administrator
shall execute a separate power of attorney in the form attached hereto as
Exhibit R 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 Accepted
Servicing Practices, 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, the Master Servicer, the
Securities Administrator 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 Securities Administrator, 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 the Depositor, the Master
Servicer and the Securities Administrator and thereafter shall be effective at
the time the Servicer and any Subservicer enter into any such Subservicing
Agreement. Neither the Securities Administrator nor the Master Servicer shall be
required to review or consent to such Subservicing Agreements and shall have no
liability in connection therewith.
(b) The 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 and (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. The Subservicer shall also be a Xxxxxxx Mac or Xxxxxx Mae
approved mortgage servicer unless the Servicer gets written approval from the
Depositor, which shall be given at the Depositor's sole discretion, to use a
non-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 Master
Servicer. Any variation without the consent of the Master Servicer 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, the Master Servicer, the Securities Administrator 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, the Master Servicer,
the Securities Administrator 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 or the Master
Servicer 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, the
Master Servicer, the Securities Administrator 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 (and shall not be
required to meet the requirements of a Subservicer set forth in Section
3.02(b)), 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 not
be effective until 30 days after written notice is received by each of the
Depositor, the Master Servicer and the Securities Administrator that contains
all information reasonably necessary to enable the Securities Administrator,
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 Master Servicer
without fee, in accordance with the terms of this Agreement, in the event that
the Servicer shall, for any reason, no longer be the Servicer (including
termination due to an Event of Default).
Section 3.04 Liability of the Servicer. Notwithstanding any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Servicer and a Subservicer or reference
to actions taken through a Subservicer or otherwise, the Servicer shall remain
obligated and primarily liable to the Trustee for the servicing and
administering of the Mortgage Loans in accordance with the provisions of Section
3.01 without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering such Mortgage Loans. The
Servicer shall be entitled to enter into any agreement with a Subservicer for
indemnification of the Servicer by such Subservicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
Section 3.05 No Contractual Relationship between Subservicers, the
Trustee and the Master Servicer. 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 neither the Trustee nor the Master
Servicer (or any successor to the Servicer) shall 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
Master Servicer. In the event the Servicer at any time shall for any reason no
longer be the Servicer (including by reason of the occurrence of an Event of
Default), the Master Servicer, or its designee, or the successor Servicer if the
successor Servicer is not the Master Servicer, shall, thereupon assume all of
the rights and obligations of the Servicer under each Subservicing Agreement
that the Servicer may have entered into, with copies thereof provided to the
Master Servicer prior to the Master Servicer assuming such rights and
obligations, unless the Master Servicer elects to terminate any Subservicing
Agreement in accordance with its terms as provided in Section 3.03.
Upon such assumption, the Master Servicer, its designee or the
successor servicer shall be deemed, subject to Section 3.03, to have assumed all
of the Servicer's interest therein and to have replaced the Servicer as a party
to each Subservicing Agreement to the same extent as if each Subservicing
Agreement had been assigned to the assuming party, except that (i) the Servicer
shall not thereby be relieved of any liability or obligations under any
Subservicing Agreement that arose before it ceased to be the Servicer and (ii)
none of the Depositor, the Master Servicer, the Trustee, their designees or any
successor Servicer shall be deemed to have assumed any liability or obligation
of the Servicer that arose before it ceased to be the Servicer.
The Servicer at its expense shall, upon request of the Master
Servicer, 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 anything in this Agreement to the contrary, 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 applicable Servicing File.
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 the 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; provided, however, that with respect to any Group I
Mortgage Loan, the Servicer shall waive such Prepayment Premium if the Mortgage
Loan is accelerated or paid-off in connection with the workout of a delinquent
Mortgage Loan or due to the related Mortgagor's default, notwithstanding that
the terms of the Mortgage Loan or federal or state law might permit the
imposition of such Prepayment Premium. 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 Master Servicer, the
Securities Administrator, 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 or remit such proceeds to the
Servicer for deposit in the Collection Account not later than two Business Days
after the deposit of such amounts in the Subservicing Account. For purposes of
this Agreement, the Servicer shall be deemed to have received payments on the
Mortgage Loans when the Subservicer receives such payments.
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. (a) The Servicer shall ensure that each First Lien Mortgage
Loan shall be covered by a paid-in-full, life-of-the-loan tax service contract
(each, a "Tax Service Contract"). Each Tax Service Contract shall be assigned to
the Master Servicer (or successor servicer), as applicable, at the Servicer's
expense in the event that the Servicer is terminated as Servicer of the related
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) above, the Servicer undertakes to perform such functions. 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 (with
respect to taxes and assessments) and Section 3.13 (with respect to hazard
insurance); (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) pay interest to the Servicer and, if required and as described
below, to Mortgagors on balances in the Escrow Account; (v) clear and terminate
the Escrow Account at the termination of the Servicer's obligations and
responsibilities in respect of the Mortgage Loans under this Agreement; or (vi)
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 Subservicer 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 determine
whether any such payments are made by the Mortgagor in a manner and at a time
that is necessary to avoid the loss of the Mortgaged Property due to a tax sale
or the foreclosure as a result of a tax lien. If any such payment has not been
made and the Servicer receives notice of a tax lien with respect to the Mortgage
Loan being imposed, the Servicer will, promptly and to the extent required to
avoid loss of the Mortgaged Property, advance or cause to be advanced funds
necessary to discharge such lien on the Mortgaged Property. 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 Account. (a) On behalf of the Trustee, the
Servicer shall establish and maintain, or cause to be established and
maintained, one or more segregated Eligible Accounts (such account or accounts,
the "Collection Account"), held in trust on behalf of the Trustee for the
benefit of the Certificateholders. 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 and any Prepayment Interest Excesses) 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
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 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, NSF
fees, reconveyance fees, assumption fees and other similar fees and charges need
not be deposited by the Servicer in the Collection Account and shall, upon
collection, belong to the Servicer as additional compensation for its servicing
activities. In the event the Servicer shall deposit in the Collection Account
any amount not required to be deposited therein, it may at any time withdraw
such amount from the Collection Account, any provision herein to the contrary
notwithstanding.
(b) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions set forth in Section 3.12. The
Servicer shall give notice to the Master Servicer, the Securities Administrator,
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 Securities
Administrator for deposit in the Distribution Account, all Available Funds
(which solely for purposes of this Section 3.11(a)(i) shall not be net of
the Master Servicing Fee) 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, (B) any unreimbursed Servicing Advances with respect to
each Mortgage Loan, 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) or (C) any Prepayment Interest Excess;
(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 Responsible Party or the Depositor, as applicable,
with respect to each Mortgage Loan that has previously been repurchased or
replaced pursuant to this Agreement all amounts received thereon
subsequent to the date of purchase or substitution, as the case may be;
(vi) to reimburse the Servicer for (A) any xxxxxxxxxxxx X&X 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 Fee 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 pursuant to
Section 3.15;
(ix) to reimburse the Master Servicer, the Servicer, the Depositor,
the Securities Administrator or the Trustee for expenses incurred by or
reimbursable to the Master Servicer, the Servicer, the Depositor, the
Securities Administrator or the Trustee, as the case may be, pursuant to
Sections 6.03, 7.02 or 8.05;
(x) to reimburse the Master Servicer, 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 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 invest funds in Permitted Investments in accordance with
Section 3.12;
(xii) 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;
(xiii) to withdraw any amounts held in the Collection Account and
not required to be remitted to the Master Servicer on the Remittance Date
occurring in the month in which such amounts are deposited into the
Collection Account, to reimburse the Servicer for unreimbursed Advances;
and
(xiv) to clear and terminate the Collection Account upon termination
of this Agreement.
To the extent that the Servicer does not timely make the remittance
referred to in clause (i) above, the Servicer shall pay the Master Servicer for
the account of the Master Servicer 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), (vii), (viii) and
(ix) above. The Servicer shall provide written notification to the Depositor, on
or prior to the next succeeding Remittance Date, upon making any withdrawals
from the Collection Account pursuant to subclause (a)(vi) above.
Section 3.12 Investment of Funds in the Collection Account and the
Distribution Account. (a) The Servicer may invest the funds in the Collection
Account. The Securities Administrator may invest funds in the Distribution
Account during the Securities Administrator Float Period, and shall (except
during the Securities Administrator 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") and all funds therein may be invested 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 Securities Administrator. The Securities Administrator
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 Securities
Administrator Float Period) over each such investment, and any certificate or
other instrument evidencing any such investment shall be delivered directly to
the Securities Administrator or its agent, together with any document of
transfer necessary to transfer title to such investment to the Securities
Administrator. In the event amounts on deposit in an Investment Account are at
any time invested in a Permitted Investment payable on demand, the Securities
Administrator may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the
lesser of (1) all amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder that such Permitted
Investment would not constitute a Permitted Investment in respect of
funds thereafter on deposit in the Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Collection Account held by or on behalf of the Servicer, shall
be for the benefit of the Servicer and shall be subject to its withdrawal in the
manner set forth in Section 3.11. Any other benefit derived from the Collection
Account associated with the receipt, disbursement and accumulation of principal,
interest, taxes, hazard insurance, mortgage blanket insurance, and like sources,
shall accrue to the benefit of the Servicer, except that the Servicer shall not
realize any economic benefit from any forced charging of services except as
permitted by applicable law. The Servicer shall deposit in the Collection
Account the amount of any loss of principal incurred in respect of any such
Permitted Investment made with funds in such accounts immediately upon
realization of such loss.
(c) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Securities Administrator,
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 Securities Administrator Float Period, which shall be for the benefit
of the Securities Administrator). The Depositor shall deposit in the
Distribution Account (except with respect to the Securities Administrator Float
Period, in which case the Securities Administrator 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 Securities Administrator shall take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings.
(e) The Securities Administrator or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the Securities
Administrator's economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments.
(f) The Securities Administrator shall not be liable for the amount
of any loss incurred with respect of any investment (except that during the
Securities Administrator 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 Section 3.12(c).
Section 3.13 Maintenance of Hazard Insurance, Errors and Omissions
and Fidelity Coverage. (a) The Servicer shall cause to be maintained for each
First Lien Mortgage Loan standard hazard insurance on the related Mortgaged
Property in an amount which is at least equal to the lesser of (i) the
outstanding principal balance of such Mortgage Loan, in each case in an amount
not less than such amount as is necessary to prevent the Mortgagor and/or the
Mortgagee from becoming a co-insurer and (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. The Servicer shall also cause to be
maintained fire insurance with extended coverage on each REO Property 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. Any cost incurred by
the Servicer in maintaining any such insurance shall not, for the purpose of
calculating distributions to the Securities Administrator, 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 unpaid principal balance of
the related Mortgage Loan and (ii) the maximum amount of such insurance
available for the related Mortgaged Property under the national flood insurance
program (assuming that the area in which such Mortgaged Property is located is
participating in such program).
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 B:VI 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, or the FDIC, unless the Servicer has obtained a waiver of such
requirements from Xxxxxx Mae, Xxxxxxx Mac, or the FDIC, as applicable. The
Servicer shall also maintain a fidelity bond in the form and amount that would
meet the requirements of Xxxxxx Mae, Xxxxxxx Mac or the FDIC, as applicable,
unless the Servicer has obtained a waiver of such requirements from Xxxxxx Mae,
Xxxxxxx Mac or the FDIC, as applicable. The Servicer shall provide the Master
Servicer 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. Upon request from the
Master Servicer, the Servicer shall cause to be delivered to the Master Servicer
proof of coverage of the fidelity bond errors and omissions insurance policy and
a statement from the surety and the insurer that that surety and insurer shall
endeavor to notify the Trustee and the Master Servicer within 30 days prior to
such fidelity bond's errors and omissions insurance policy's termination or
material modification (or 10 days for non-payment of premium for such fidelity
bond's errors and omissions insurance policy). 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 no
Servicer shall be required to take such action if, in the reasonable belief of
the Servicer, 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, the Servicer has the prior
consent of the primary mortgage guaranty insurer, if any, 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 has a
credit risk rating at least equal to that of the original Mortgagor. 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. No Servicer shall 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 3.14 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 Securities Administrator, taking into account,
among other things, the timing of foreclosure proceedings; provided, however
with respect to any Second Lien Mortgage Loan, if, after such Mortgage Loan
becomes 180 days or more delinquent, the Servicer determines that a significant
net recovery is not possible through foreclosure, such Mortgage Loan may be
charged off and the Mortgage Loan will be treated as a Liquidated Mortgage Loan
giving rise to a Realized Loss. 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 Securities Administrator, 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 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; third, to reimburse
the Servicer for any related xxxxxxxxxxxx X&X Advances, pursuant to Section
3.11; 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 Securities Administrator 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 or the Master Servicer 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, the Master Servicer
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
in the form of Exhibit L hereto 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 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 or by overnight courier, 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 Sponsor 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 exercise 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 3.17 shall apply only to REO Properties acquired for the
account of the Trustee for the benefit of the Certificateholders 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 for the benefit of the Certificateholders 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 Master Servicer. The Servicer shall notify the Master Servicer
as to the status of each REO Property in connection with its monthly reporting
obligations.
(c) The Servicer shall use its best efforts, consistent with
Accepted Servicing Practices, to dispose of the REO Property as soon as possible
(subject to the Master Servicer's right to veto any proposed sale of REO
Property) 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 and the Master Servicer to such
effect, that a longer period is necessary for the orderly liquidation of such
REO Property. 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 Securities Administrator and the Master Servicer as to the
progress being made in selling such REO Property. Notwithstanding its veto
rights, the Trustee has no obligation with respect to REO Dispositions.
(d) The Servicer shall segregate and hold all funds collected and
received in connection with the operation of any REO Property separate and apart
from its own funds and general assets and shall deposit such funds in the
Collection Account.
(e) The Servicer shall deposit net of reimbursement to the Servicer
for any related outstanding Servicing Advances and unpaid Servicing Fees
provided in Section 3.11, or cause to be deposited, on a daily basis in the
Collection Account all revenues received with respect to the related REO
Property and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of the REO Property.
(f) The Servicer, upon an REO Disposition, shall be entitled to
reimbursement for any related unreimbursed Servicing Advances as well as any
unpaid Servicing Fees from proceeds received in connection with the REO
Disposition, as further provided in Section 3.11.
(g) Any net proceeds from an REO Disposition which are in excess of
the unpaid principal balance of the related Mortgage Loan plus all unpaid REO
Imputed Interest thereon through the date of the REO Disposition shall be
retained by the Servicer as additional servicing compensation.
(h) The Servicer shall use its best efforts, consistent with
Accepted Servicing Practices, to sell, or cause the Subservicer to sell, any REO
Property as soon as possible, but in no event later than the conclusion of the
third calendar year beginning after the year of its acquisition by the REMIC
unless (i) the Servicer applies for an extension of such period from the
Internal Revenue Service pursuant to the REMIC Provisions and Code Section
856(e)(3), in which event such REO Property shall be sold within the applicable
extension period, or (ii) the Servicer, at its expense, obtains for and delivers
to the Trustee and the Master Servicer an Opinion of Counsel, addressed to the
Depositor, the Trustee, the Master Servicer 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 Master Servicer 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 Master Servicer 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
Subservicer to provide, to the Depositor, the Trustee, the OTS or the FDIC and
the examiners and supervisory agents thereof access to the documentation
regarding the Mortgage Loans in its possession required by applicable
regulations of the OTS. Such access shall be afforded without charge, but only
upon reasonable and prior written request and during normal business hours at
the offices of the Servicer or any Subservicer. Nothing in this Section 3.19
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 3.19 as
a result of such obligation shall not constitute a breach of this Section 3.19.
Section 3.20 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Securities Administrator for the Benefit of the
Trustee. The Servicer shall account fully to the Securities Administrator on
behalf of the Trustee for any funds received by the Servicer or which otherwise
are collected by the Servicer as Liquidation Proceeds, Condemnation Proceeds or
Insurance Proceeds in respect of any Mortgage Loan. All Mortgage Files and funds
collected or held by, or under the control of, the Servicer in respect of any
Mortgage Loans, whether from the collection of principal and interest payments
or from Liquidation Proceeds, including, but not limited to, any funds on
deposit in the Collection Account, shall be held by the Servicer for and on
behalf of the Trustee on behalf of the Certificateholders 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 Securities Administrator
on behalf of 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 to the
extent permitted in Section 3.11. The right to receive the Servicing Fee may not
be transferred in whole or in part except 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. The
Servicer shall also be entitled to retain Prepayment Interest Excesses, but only
to the extent such amounts are received by the Servicer.
(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, the
Securities Administrator and the Master Servicer shall deliver or cause to be
delivered, and the Servicer shall cause each Subservicer engaged by the Servicer
to deliver or cause to be delivered to the Depositor, the Securities
Administrator, the Master Servicer, the Rating Agencies and the Trustee on or
before March 14th 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 Securities Administrator, the Master Servicer, the Trustee (in
its capacity as successor master servicer, if applicable), 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 Securities
Administrator, the Master Servicer, the Trustee (in its capacity as successor
master servicer, if applicable), 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 Securities Administrator,
the Master Servicer, the Trustee (in its capacity as successor master servicer,
if applicable), the Servicer or Subservicer under this Section 3.22 apply to the
Securities Administrator and the Master Servicer, and the Servicer and
Subservicer that serviced a Mortgage Loan during the applicable period, whether
or not such Securities Administrator, Master Servicer, Servicer or Subservicer
is acting as Securities Administrator, Master Servicer, Servicer or Subservicer,
as applicable, at the time such Officer's Certificate is required to be
delivered. None of the Securities Administrator, the Master Servicer, the
Trustee (in its capacity as successor master servicer, if applicable), the
Servicer or Subservicer shall be required to cause the delivery of any Officer's
Certificate required by this Section 3.22 in any given year so long as it has
received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust for the preceding calendar year.
Section 3.23 Annual Reports on Assessment of Compliance with
Servicing Criteria; Annual Independent Public Accountants' Attestation
Report.(a) (a) Not later than March 14th of each calendar year commencing in
2007 (and with respect to the Trustee, in its capacity as custodian, only until
a Form 15 Suspension Notice has been filed), the Servicer, the Securities
Administrator, the Master Servicer and the Trustee (in its capacity as successor
master servicer, if applicable) each shall deliver, and the Servicer shall cause
each Subservicer engaged by the Servicer, and the Servicer, the Securities
Administrator, the Master Servicer and the Trustee (in its capacity as successor
master servicer, if applicable) shall cause each Subcontractor utilized by the
Servicer (or by any such Subservicer), the Master Servicer, the Securities
Administrator or the Trustee (in its capacity as successor master servicer, if
applicable), as applicable, and determined by the Servicer, the Master Servicer,
the Securities Administrator or the Trustee (in its capacity as successor master
servicer, if applicable), 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 Securities Administrator, 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
Securities Administrator pursuant to Section 3.23(c). The Servicer, the
Securities Administrator, the Master Servicer, the Trustee (in its capacity as
custodian or successor master servicer, if applicable) 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, the Securities Administrator, the
Master Servicer or the Trustee (in its capacity as custodian or successor master
servicer, if applicable) 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 (in its capacity as successor master servicer, if
applicable), as applicable), as the case may be. No Subcontractor engaged by the
Servicer, the Securities Administrator or the Master Servicer shall be required
to deliver any such assessments required by this paragraph in any given year so
long as it has received written confirmation from the Depositor that a Form 10-K
is not required to be filed in respect of the Trust for the preceding calendar
year.
(b) Not later than March 14th of each calendar year, commencing in
2007 (and with respect to the Trustee, in its capacity as custodian, only until
a Form 15 Suspension Notice has been filed), the Servicer, the Securities
Administrator, the Master Servicer and the Trustee (in its capacity as successor
master servicer, if applicable) shall cause, and the Servicer, the Securities
Administrator and the Master Servicer shall cause each Subservicer engaged by
the Servicer and the Servicer, the Securities Administrator and the Master
Servicer shall cause each Servicing Function Participant utilized by the
Securities Administrator, the Master Servicer 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 Securities Administrator 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, the Securities Administrator, the
Master Servicer or the Trustee (in its capacity as either custodian or successor
master servicer, if applicable) as to the nature of any defaults by the
Servicer, the Securities Administrator, the Master Servicer or the Trustee (in
its capacity as either custodian or successor master servicer, if applicable)
(and each Subservicer or Servicing Function Participant engaged or utilized by
the Servicer, the Master Servicer, Master Servicer and Trustee (in its capacity
as either custodian or successor master servicer, if applicable), 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 Securities Administrator's, the Master
Servicer's, the Trustee's (in its capacity as either custodian or successor
master servicer, if applicable) or the applicable Subservicer's or Servicing
Function Participant's obligations hereunder or under any applicable
sub-servicing agreement. No Subcontractor engaged by the Servicer shall be
required to deliver any such attestation required by this paragraph in any given
year so long as it has received written confirmation from the Depositor that a
Form 10-K is not required to be filed in respect of the Trust for the preceding
calendar year.
(c) Unless previously provided under Section 3.02(e), no later than
March 1 of each fiscal year, commencing in 2007, the Servicer shall notify the
Securities Administrator, the Master Servicer 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 Securities
Administrator and the Master Servicer 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, the Securities Administrator or the Master Servicer submits its
assessment pursuant to Section 3.23(a), the Servicer, the Securities
Administrator and the Master Servicer, 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.
(d) The obligations of the Securities Administrator, the Master
Servicer, the Trustee (in its capacity as custodian), the Servicer or
Subservicer under this Section 3.19 apply to the Securities Administrator, the
Master Servicer and the Trustee (in its capacity as custodian), and the Servicer
and Subservicer that serviced a Mortgage Loan during the applicable period,
whether or not such Securities Administrator, Master Servicer, Trustee (in its
capacity as custodian), Servicer or Subservicer is acting as Securities
Administrator, Master Servicer, Trustee (in its capacity as custodian), Servicer
or Subservicer, as applicable, at the time such assessment of compliance with
Servicing Criteria and related accountant's attestation is required to be
delivered.
Section 3.24 Master Servicer to Act as Servicer. (a) In the event
that the Servicer shall for any reason no longer be the Servicer hereunder
(including by reason of an Event of Default), the Master Servicer or its
successor, shall thereupon assume all of the rights and obligations of the
Servicer hereunder arising thereafter (except that the Master Servicer shall not
be (i) liable for losses of the predecessor Servicer pursuant to Section 3.10 or
any acts or omissions of the predecessor Servicer hereunder, (ii) obligated to
make Advances if it is prohibited from doing so by applicable law, (iii)
obligated to effectuate repurchases or substitutions of Mortgage Loans
hereunder, including but not limited to repurchases or substitutions pursuant to
Section 2.03, (iv) responsible for expenses of the Servicer pursuant to Section
2.03 or (v) deemed to have made any representations and warranties of the
Servicer hereunder). Any such assumption shall be subject to Section 7.02.
(b) Every Subservicing Agreement entered into by the Servicer shall
contain a provision giving the successor Servicer the option to terminate such
agreement in the event a successor Servicer is appointed.
(c) If the Servicer shall for any reason no longer be the Servicer
(including by reason of any Event of Default), the Master Servicer (or any other
successor Servicer) may, at its option, succeed to any rights and obligations of
the Servicer under any Subservicing Agreement in accordance with the terms
thereof; provided, that the Master Servicer (or any other successor Servicer)
shall not incur any liability or have any obligations in its capacity as
successor Servicer under a Subservicing Agreement arising prior to the date of
such succession unless it expressly elects to succeed to the rights and
obligations of the Servicer thereunder; and the Servicer shall not thereby be
relieved of any liability or obligations under the Subservicing Agreement
arising prior to the date of such succession.
(d) The Servicer shall, upon request of the Master Servicer, but at
the expense of the Servicer, deliver to the assuming party all documents and
records relating to each Subservicing Agreement (if any) 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 the Subservicing Agreement to the assuming party.
Section 3.25 Compensating Interest. The Servicer shall remit to the
Securities Administrator 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) The Servicer 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 the Servicer
incidental to the performance of its obligations under this Agreement,
including, maintaining adequate information security procedures to protect such
nonpublic personal information and providing all privacy notices required by the
Privacy Laws.
Section 3.27 Excess Reserve Fund Account; Distribution Account. (a)
The Securities Administrator 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 Securities Administrator
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 Securities Administrator shall account for the Excess Reserve
Fund Account as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created pursuant
to this Agreement. The beneficial owners of the Excess Reserve Fund Account are
the Class X Certificateholders.
Any Basis Risk Carry Forward Amounts distributed by the Securities
Administrator to the LIBOR Certificateholders from the Excess Reserve Fund
Account shall be accounted for by the Securities Administrator, for federal
income tax purposes, as amounts paid first to the Holders of the Class X
Certificates (in respect of the Class X Interest) and then to the respective
Class or Classes of LIBOR Certificates. In addition, the Securities
Administrator 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) subject to the obligation to pay Class IO
Shortfalls, as rights and obligations under a separate limited recourse notional
principal contract between the Class X Certificateholders and Holders of each
such Class.
Notwithstanding any provision contained in this Agreement, the
Securities Administrator 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 Securities Administrator shall establish and maintain the
Distribution Account on behalf of the Certificateholders. The Securities
Administrator shall, promptly upon receipt on the Business Day received, deposit
in the Distribution Account and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Securities
Administrator pursuant to Section 3.11;
(ii) any amount deposited by the Servicer pursuant to Section
3.12(b) in connection with any losses on Permitted Investments;
(iii) any amounts remitted by the Servicer to the Securities
Administrator in respect of Compensating Interest pursuant to Section
3.25; 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 Securities Administrator
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 Securities Administrator, which describes the amounts
deposited in error in the Distribution Account. All funds deposited in the
Distribution Account shall be held by the Securities Administrator in trust for
the Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 4.02.
(c) In order to comply with its duties under the USA Patriot Act of
2001, the Securities Administrator shall obtain and verify certain information
and documentation from the other parties to this Agreement including, but not
limited to, each such party's name, address, and other identifying information.
To help fight the funding of terrorism and money laundering
activities, the Trustee will obtain, verify, and record information that
identifies individuals or entities that establish a relationship or open an
account with it. The Trustee will ask for the name, address, tax identification
number and other information that will allow the Trustee to identify the
individual or entity who is establishing the relationship or opening the
account. The Trustee may also ask for formation documents such as articles of
incorporation, an offering memorandum, or other identifying documents to be
provided.
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+ Delinquent Mortgage Loan from the
Trust Fund. The purchase price for any such Mortgage Loan shall be 100% of the
unpaid principal balance of such Mortgage Loan plus accrued and unpaid interest
on the related Mortgage Loan at the applicable Mortgage Interest Rate, plus the
amount of any unreimbursed Servicing Advances made by the Servicer. Upon receipt
of such purchase price, the Servicer shall provide to the Trustee a Request for
Release and the Trustee shall promptly release to the Depositor or the Servicer,
as applicable, the Custodial File relating to the Mortgage Loan being
repurchased.
Section 3.29 Special Servicing of 60+ Delinquent Mortgage Loans. If
7.50% or more of the Mortgage Loans, by aggregate Stated Principal Balance, are
at any time 90+ Day Delinquent Mortgage Loans, the Majority Class X
Certificateholder shall have the option to cause the servicing with respect to
any 60+ Day Delinquent Mortgage Loans to be transferred to a Special Servicer
who meets the qualifications set forth in the definition thereof. In the event
that such exercise occurs on or before the first anniversary of the Cut-off
Date, the Majority Class X Certificateholder will be required to pay to the
Servicer upon such servicing transfer a fee equal to the product of (i) 75%
multiplied by the PMSR Fee and (ii) the aggregate Stated Principal Balance of
the 60+ Day Delinquent Mortgage Loans being transferred. In the event that such
exercise occurs on or before the second anniversary of the Cut-off Date, the
Majority Class X Certificateholder will be required to pay to the Servicer upon
such servicing transfer a fee equal to the product of (i) 50% multiplied by the
PMSR Fee and (ii) the aggregate Stated Principal Balance of the 60+ Day
Delinquent Mortgage Loans being transferred. In the event that such exercise
occurs after the second anniversary of the Cut-off Date, the Majority Class X
Certificateholder will be not be required to pay to the Servicer any fee.
Immediately upon the transfer of servicing to the Special Servicer with respect
to such 60+ Day Delinquent Mortgage Loans, the Special Servicer shall, pursuant
to the Special Servicing Agreement, service such 60+ Day Delinquent Mortgage
Loans in accordance with all provisions of this Agreement which were applicable
to the Servicer prior to such transfer of servicing. Upon the exercise of such
option, servicing of 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, the Servicing Fee
payable to the Special Servicer under this Agreement. Upon any such transfer of
servicing to the Special Servicer, the Special Servicer shall reimburse the
Servicer for all unreimbursed Advances with respect to the transferred Mortgage
Loans, and the Special Servicer will thereafter have the right to reimbursement
therefor from the Trust Fund (and the Servicer shall have no further right to
such reimbursement). Pursuant to the Special Servicing Agreement, each such 60+
Day Delinquent Mortgage Loan (even if it subsequently becomes a Mortgage Loan
that is not a 60+ Day Delinquent Mortgage Loan) shall be serviced by the Special
Servicer in accordance with this Agreement, and the Special Servicer shall agree
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 any such Mortgage Loan transferred to the Special Servicer (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), and the
Servicer shall not be obligated to provide any certificates or reports with
respect to such Special Servicer (including, without, limitation, under
Regulation AB). 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
pursuant to this Agreement, the Servicer, the Master Servicer, the Depositor 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
actions taken by Special Servicer, and the Special Servicing Agreement will
obligate the Special Servicer to indemnify the Depositor, the Sponsor, the
Responsible Party, the Master Servicer, the Securities Administrator, the
Servicer and the Trustee and any Affiliate, director, officer, employee or agent
of the Depositor, the Sponsor, the Responsible Party, the Master Servicer, the
Securities Administrator, the Servicer and the Trustee to the same extent as set
forth in Section 6.05 with respect to the Servicer. If the Special Servicer
alone does not have a net worth of at least $15,000,000, then such
indemnification obligation shall be guaranteed by one or more Affiliates of the
Special Servicer that together with the Special Servicer met such net worth
requirement. The Servicer 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, to verify compliance with any written agreement with such Special
Servicer. The Trustee and the Master Servicer shall have no obligation to
approve of, or consent to, the appointment of any Special Servicer, and their
rights and obligations with respect to the Special Servicer shall be the same as
those applicable to the "Servicer" under this Agreement. 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. The Trustee shall not be obligated to determine whether the
Special Servicing Agreement conforms to the requirements set forth in this
Section 3.29.
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 related Mortgage
Loans, which Scheduled Payments were not received as of the close of business on
the related Determination Date, (ii) with respect to Second Lien Mortgage Loans
for which Scheduled Payments were not received as of the close of business on
the related Determination Date, the aggregate amount of Scheduled Payments (net
of the related Servicing Fee), due during the Due Period immediately preceding
such Remittance Date (provided, that such Second Lien Mortgage Loan is not a 60+
Day Delinquent Mortgage Loan), and (iii) with respect to each Mortgage Loan that
required a balloon payment on its final Due Date, a payment equal to the assumed
Scheduled Payment that would have been due on such Due Date based upon the
original principal amortization schedule for such balloon mortgage loan,
excluding any extra payment of principal due upon the stated maturity of such
balloon mortgage loan.
(b) On each Remittance Date, the Servicer shall remit in immediately
available funds to the Securities Administrator 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 for the related Remittance Date either (i)
from its own funds or (ii) from the Collection Account, to the Amounts Held 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. 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, 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 Master Servicer. In
addition, the Servicer shall not be required to make any P&I Advances on
Mortgage Loans subject to bankruptcy proceedings or for any Relief Act Interest
Shortfalls.
(e) Except as otherwise provided herein, the Servicer shall be
entitled to reimbursement pursuant to Section 3.11 for Servicing 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.
(f) On each Remittance Date, the Master Servicer shall deposit in
the Distribution Account all funds remitted to it by the Servicer pursuant to
Sections 3.11(a)(i) and 3.25 and this Section 4.01. The Securities Administrator
may retain or withdraw from the Distribution Account, (i) the Master Servicing
Fee, (ii) amounts necessary to reimburse the Master Servicer or the Servicer for
any previously unreimbursed Advances and any Advances the Master Servicer deems
to be nonrecoverable from the related Mortgage Loan proceeds, (iii) an amount to
indemnify the Master Servicer or the Servicer for amounts due in accordance with
this Agreement, and (iv) any other amounts that each of the Master Servicer and
the Securities Administrator is entitled to receive hereunder for reimbursement,
indemnification or otherwise
Section 4.02 Priorities of Distribution. (a) On each Distribution
Date, the Securities Administrator 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 (to the extent not previously paid to the Swap Provider as
a Replacement Swap Provider Payment) 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 Sequential Class
M Principal Distribution Amount, to the Sequential Class M
Certificates until their respective Class Certificate Balances have
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 Sequential Class
M Certificates in clause (ii)(B)(b) 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;
(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 Sequential Class M
Certificates in clause (ii)(B)(b) above and to the Class M-4
Certificates in clause (ii)(B)(c) 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;
(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 Sequential Class M
Certificates in clause (ii)(B)(b) above, to the Class M-4
Certificates in clause (ii)(B)(c) above and to the Class M-5
Certificates in clause (ii)(B)(d) 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;
(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 Sequential Class M
Certificates in clause (ii)(B)(b) above, to the Class M-4
Certificates in clause (ii)(B)(c) above, to the Class M-5
Certificates in clause (ii)(B)(d) above and to the Class M-6
Certificates in clause (ii)(B)(e) 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;
(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 Sequential Class M
Certificates in clause (ii)(B)(b) above, to the Class M-4
Certificates in clause (ii)(B)(c) above, to the Class M-5
Certificates in clause (ii)(B)(d) above, to the Class M-6
Certificates in clause (ii)(B)(e) above and to the Class M-7
Certificates in clause (ii)(B)(f) 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;
(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 Sequential Class M
Certificates in clause (ii)(B)(b) above, to the Class M-4
Certificates in clause (ii)(B)(c) above, to the Class M-5
Certificates in clause (ii)(B)(d) above, to the Class M-6
Certificates in clause (ii)(B)(e) above, to the Class M-7
Certificates in clause (ii)(B)(f) above and to the Class M-8
Certificates in clause (ii)(B)(g) 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;
(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 Sequential Class M
Certificates in clause (ii)(B)(b) above, to the Class M-4
Certificates in clause (ii)(B)(c) above, to the Class M-5
Certificates in clause (ii)(B)(d) above, to the Class M-6
Certificates in clause (ii)(B)(e) above, to the Class M-7
Certificates in clause (ii)(B)(f) above, to the Class M-8
Certificates in clause (ii)(B)(g) above and to the Class M-9
Certificates in clause (ii)(B)(h) 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;
(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 Sequential Class M
Certificates in clause (ii)(B)(b) above, to the Class M-4
Certificates in clause (ii)(B)(c) above, to the Class M-5
Certificates in clause (ii)(B)(d) above, to the Class M-6
Certificates in clause (ii)(B)(e) above, to the Class M-7
Certificates in clause (ii)(B)(f) above, to the Class M-8
Certificates in clause (ii)(B)(g) above, to the Class M-9
Certificates in clause (ii)(B)(h) above and to the Class B-1
Certificates in clause (ii)(B)(i) above, and (y) the Class B-2
Principal Distribution Amount, 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.
For purposes of this Agreement, any Net Swap Payments, Net Swap
Receipts or Swap Termination Payments (other than Defaulted Swap Termination
Payments) shall be allocated by the Securities Administrator between Loan Groups
based on the respective aggregate Stated Principal Balance of the Mortgage Loans
in each Loan Group.
(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 Securities Administrator to the holders of the Class
P Certificates.
(c) All principal distributions to the Class A Certificates on any
Distribution Date shall be allocated by the Securities Administrator among 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 by the Securities
Administrator 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 by the Securities Administrator 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 by the Securities
Administrator first from Available Funds relating to the Group II Mortgage
Loans.
Any principal distributions allocated to the Class A-2 Certificate
Group shall be distributed by the Securities Administrator 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 the preceding paragraphs, 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 shall be allocated by the Securities Administrator pro rata to the
Class A Certificates, based on their respective Class Certificate Balances,
until their respective Class Certificate Balances have been reduced to zero.
(d) On any Distribution Date, any Relief Act Shortfalls and Net
Prepayment Interest Shortfalls for such Distribution Date shall be allocated by
the Securities Administrator 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) Notwithstanding any other provision of this Agreement, the
Securities Administrator shall comply with all federal withholding requirements
respecting payments made or received under the Interest Rate Swap Agreement and
payments to Certificateholders of interest or original issue discount that the
Securities Administrator reasonably believes are applicable under the Code. The
consent of Certificateholders shall not be required for such withholding. If the
Securities Administrator does withhold any amount from interest or original
issue discount payments or advances thereof to any Certificateholder pursuant to
federal withholding requirements, the Securities Administrator shall indicate
the amount withheld to such Certificateholders. Such amounts shall be deemed to
have been distributed to such Certificateholders for all purposes of this
Agreement.
Section 4.03 Monthly Statements to Certificateholders. (a) Not later
than each Distribution Date, the Securities Administrator shall make available
to each Certificateholder, the Master Servicer, the Servicer, the Depositor, the
Trustee and each Rating Agency a statement 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 Securities Administrator and the Master Servicer (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 Master Servicer 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, and 90+ 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) by the 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 Securities
Administrator pursuant to Section 8.12 shall include the following information
with respect to the related distribution:
(i) material breaches of Mortgage Loan representations and
warranties of which the Securities Administrator has actual knowledge or
has received written notice; and
(ii) material breaches of any covenants under this Agreement of
which the Securities Administrator has actual knowledge or has received
written notice;
provided, that, if the Securities Administrator receives written notice of
events described in (i) and/or (ii) above from the Servicer, the Servicer shall
be responsible for providing information to the Securities Administrator for
inclusion in the applicable Form 10-D.
(b) The Securities Administrator's responsibility for providing the
above statement to the Certificateholders, each Rating Agency, the Responsible
Party, the Master Servicer, the Servicer and the Depositor is limited, if
applicable, to the availability, timeliness and accuracy of the information
derived from the Responsible Party, the Master Servicer and the Servicer. The
Securities Administrator shall make available the above statement via the
Securities Administrator's internet website. The Securities Administrator's
website will initially be located at xxxx://xxx.xxxxxxx.xxx and assistance in
using the website can be obtained by calling the Securities Administrator's
customer service desk at (000) 000-0000. A paper copy of the above statement
will also be made available upon request.
The Securities Administrator shall make available to each Analytics
Company, either electronically or via the Securities Administrator's internet
website, each statement to Certificateholders prepared pursuant to this Section
4.03(a). The Securities Administrator and the Servicer shall cooperate in good
faith with the Depositor to reconcile any discrepancies in such statements, and
the Securities Administrator shall make available via its Internet website any
corrections to such statements 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 Securities Administrator shall cause to be furnished
to each Person who at any time during the calendar year was a Certificateholder,
a statement containing the information set forth in clauses (a)(i) 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
Securities Administrator shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time in
effect.
(d) Not later than the Reporting Date for each Distribution Date,
the Servicer shall furnish to the Depositor with respect to clause (i) below and
the Securities Administrator with respect to clause (ii) below, a monthly
remittance advice statement (the "Servicer Remittance Report") substantially
similar to the format set forth in Exhibit Y hereto, a monthly defaulted loan
report substantially similar to the format set forth in Exhibit Z hereto and a
realized loss report substantially similar to the format set forth in Exhibit AA
hereto (or in such other format mutually agreed to among the Depositor, the
Servicer, and the Master Servicer) relating to the period ending on the last day
of the preceding calendar month 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 Securities Administrator to
enable the Securities Administrator 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 a data tape, in form and substance
reasonably satisfactory to the Depositor, containing the information required
pursuant to this Section 4.03(d) on a loan-by-loan basis for all of the Mortgage
Loans. The Depositor will use the information required pursuant to this Section
4.03(d) in compliance with applicable law.
The Servicer shall furnish to the Securities Administrator 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 Securities Administrator 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 and 90+ 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 Securities
Administrator 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.
Section 4.04 Certain Matters Relating to the Determination of LIBOR.
LIBOR shall be calculated by the Securities Administrator in accordance with the
definition of "LIBOR." Until all of the LIBOR Certificates are paid in full, the
Securities Administrator shall at all times retain at least four Reference Banks
for the purpose of determining LIBOR with respect to each LIBOR Determination
Date. The Securities Administrator initially shall designate the Reference Banks
(after consultation with the Depositor). Each "Reference Bank" shall be a
leading bank engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, shall not control, be controlled by, or be under common
control with, the Securities Administrator and shall have an established place
of business in London. If any such Reference Bank should be unwilling or unable
to act as such or if the Securities Administrator should terminate its
appointment as Reference Bank, the Securities Administrator shall promptly
appoint or cause to be appointed another Reference Bank (after consultation with
the Depositor). The Securities Administrator shall have no liability or
responsibility to any Person for (i) the selection of any Reference Bank for
purposes of determining LIBOR or (ii) any inability to retain at least four
Reference Banks which is caused by circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for each
Interest Accrual Period shall be determined by the Securities Administrator on
each LIBOR Determination Date so long as the LIBOR Certificates are Outstanding
on the basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement. The Securities Administrator shall
not have any liability or responsibility to any Person for its inability,
following a good-faith reasonable effort, to obtain quotations from the
Reference Banks or to determine the arithmetic mean referred to in the
definition of LIBOR, all as provided for in this Section 4.04 and the definition
of LIBOR. The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Securities Administrator shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of a Certificate, the
Trustee and the Securities Administrator.
Section 4.05 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts shall be allocated by the Securities Administrator
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
Securities Administrator 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 Securities Administrator 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:
(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 (to
the extent not previously paid to the Swap Provider as a Replacement Swap
Provider Payment);
(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 Unpaid Interest Amounts
and Basis Risk Carry Forward Amounts as described in Section 4.02(a)(iii),
to the extent unpaid from other Available Funds (including Basis Risk
Payments on deposit in the Excess Reserve Fund Account);
(v) to the Swap Provider, any Defaulted Swap Termination Payment
owed to the Swap Provider for that Distribution Date; and
(vi) to the holders of the Class X Certificates, any remaining
amounts.
Notwithstanding the foregoing, in the event that the Trust receives
a Swap Termination Payment and a successor Swap Provider cannot be obtained,
then the Securities Administrator shall deposit the Swap Termination Payment
into the reserve account that is a sub-account of the Supplemental Interest
Trust. On each subsequent Distribution Date (so long as funds are available in
the reserve account), the Securities Administrator 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. The remaining amount in the reserve account
shall remain in such account and will not be treated as a Swap Termination
Payment for purposes of determining the distributions from the Supplemental
Interest Trust until the final Distribution Date.
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 Securities Administrator 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 Securities Administrator to
the LIBOR Certificateholders shall be accounted for by the Securities
Administrator, for federal income tax purposes, as amounts paid first to the
Holders of the Class X Certificates 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 Securities Administrator 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), subject to the obligation to pay Class IO
Shortfalls as rights and obligations pursuant to a separate limited recourse
notional principal contract between the Class X Certificateholders and 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 Securities Administrator shall send any notices and make any
demands, on behalf of the Trust, as are required under the Interest Rate Swap
Agreement. The Securities Administrator shall cause any replacement swap
provider to provide a copy of the related replacement interest rate swap
agreement to the Securities Administrator and the Depositor.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral multiples
in excess thereof (except that one Certificate in each Class may be issued in a
different amount which must be in excess of the applicable minimum denomination)
and aggregate denominations per Class set forth in the Preliminary Statement.
The Depositor hereby directs the Securities Administrator to
register the Class P, Class C and Class X Certificates in the name of the
Depositor or its designee. On a date as to which the Depositor notifies the
Securities Administrator, the Securities Administrator shall transfer the Class
X and Class P Certificates in the name of the NIM Trustee, or such other name or
names as the Depositor shall request, and to deliver the Class X and Class P
Certificates to the NIM Trustee, or to such other Person or Persons as the
Depositor shall request.
Subject to Section 11.02 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator shall make
distributions to each Certificateholder of record on the preceding Record Date
either (x) by wire transfer in immediately available funds to the account of
such Holder at a bank or other entity having appropriate facilities therefor as
directed by that Certificateholder by written wire instructions provided to the
Securities Administrator or (y), in the event that no wire instructions are
provided to the Securities Administrator, by check mailed by first class mail to
such Certificateholder at the address of such Holder appearing in the
Certificate Register.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Securities Administrator by an authorized officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
such signatures were affixed, authorized to sign on behalf of the Securities
Administrator shall bind the Securities Administrator, notwithstanding that such
individuals or any of them have ceased to be so 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 Securities Administrator by manual signature, and such authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly executed and delivered hereunder. All
Certificates shall be dated the date of their authentication. On the Closing
Date, the Securities Administrator shall authenticate the Certificates to be
issued at the direction of the Depositor or any Affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Securities Administrator shall maintain, or
cause to be maintained in accordance with the provisions of Section 5.06, a
Certificate Register for the Trust Fund in which, subject to the provisions of
subsections (b) and (c) below and to such reasonable regulations as it may
prescribe, the Securities Administrator shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
Upon surrender for registration of transfer of any Certificate, the Securities
Administrator shall execute and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class and
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged
for other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute, authenticate, and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator duly executed by the Holder thereof
or his attorney duly authorized in writing. In the event, the Depositor or an
Affiliate of the Depositor transfers the Class X Certificates, or a portion
thereof, to another Affiliate, it shall notify the Securities Administrator in
writing of the affiliated status of the transferee. The Securities Administrator
shall have no liability regarding the lack of notice with respect thereto.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Securities
Administrator in accordance with the Securities Administrator's customary
procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. Except with respect to (i) the transfer of the Class X, 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, (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 or
(iv) a transfer of a Residual Certificate to the Servicer, an Affiliate of the
Servicer, or its designee (including, without limitation, an employee of the
Servicer who is an "accredited investor" as defined in Regulation D under the
Securities Act), in the event that a transfer of a Private Certificate which is
a Physical Certificate is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the Securities
Act and such laws, the Certificateholder desiring to effect such transfer shall
certify to the Securities Administrator in writing the facts surrounding the
transfer in substantially the form set forth in Exhibit I (the "Transferor
Certificate") and either (i) there shall be delivered to the Securities
Administrator 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 Securities
Administrator at the expense of the transferor an Opinion of Counsel that such
transfer may be made without registration under the Securities Act. In the event
that a transfer of a Private Certificate which is a Book-Entry Certificate is to
be made in reliance upon an exemption from the Securities Act and such laws, in
order to assure compliance with the Securities Act and such laws, the
Certificateholder desiring to effect such transfer will be deemed to have made
as of the transfer date each of the certifications set forth in the Transferor
Certificate in respect of such Certificate and the transferee will be deemed to
have made as of the transfer date each of the certifications set forth in the
Rule 144A Letter in respect of such Certificate, in each case as if such
Certificate were evidenced by a Physical Certificate. 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. To the extent of any information
reasonably within the possession of the applicable party, the Securities
Administrator, the Master Servicer 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 Securities
Administrator, the Master Servicer, 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, 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, (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 or (iv) a transfer of a Residual Certificate to the
Servicer, an Affiliate of the Servicer, or its designee (including, without
limitation, an employee of the Servicer who is an "accredited investor" as
defined in Regulation D under the Securities Act), no transfer of an
ERISA-Restricted Certificate shall be made unless the Securities Administrator
shall have received either (i) a representation from the transferee of such
Certificate acceptable to and in form and substance satisfactory to the
Securities Administrator (in the event such Certificate is a Private Certificate
or a Residual Certificate, such requirement is satisfied only by the Securities
Administrator's receipt of a representation letter from the transferee
substantially in the form of Exhibit 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 Securities Administrator, which Opinion of Counsel shall not be an expense
of the Securities Administrator, the Trustee, the Depositor, the Servicer or the
Trust Fund, addressed to the Securities Administrator, 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 Securities Administrator, the Master Servicer, 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 Physical Certificate, in the event
the representation letter referred to in the preceding sentence is not
furnished, such representation shall be deemed to have been made to the
Securities Administrator by the transferee's (including an initial acquirer's)
acceptance of the ERISA-Restricted Certificates. Notwithstanding anything else
to the contrary herein, (a) any purported transfer of an ERISA-Restricted
Certificate, other than a Class P Certificate, a Class C 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 Securities
Administrator of an Opinion of Counsel satisfactory to the Securities
Administrator as described above shall be void and of no effect and (b) any
purported transfer of a Class P Certificate, a 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, the Class C Certificates 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 Securities Administrator 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 Securities Administrator 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 Securities Administrator of any change or impending change in
its status as a Permitted Transferee;
(ii) Except in the case of the Depositor or an Affiliate of the
Depositor that is a Permitted Transferee, no Ownership Interest in a
Residual Certificate may be registered on the Closing Date or thereafter
transferred, and the Securities Administrator shall not register the
Transfer of any Residual Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator
under subparagraph (b) above, the Securities Administrator shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial owner
or the proposed transferee in the form attached hereto as Exhibit 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 Securities Administrator 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 Securities Administrator shall
be entitled but not obligated to recover from any Holder of a Residual
Certificate that was in fact not a Permitted Transferee at the time it
became a Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Residual Certificate at
and after either such time. Any such payments so recovered by the
Securities Administrator shall be paid and delivered by the Securities
Administrator to the last preceding Permitted Transferee of such
Certificate; and
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Securities Administrator, all
information necessary to compute any tax imposed under Section 860E(e) of
the Code as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund, the
Depositor, the Responsible Party, the Trustee, the Securities Administrator, 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 Securities Administrator, is reasonably necessary (a) to ensure that the
record ownership of, or any beneficial interest in, a Residual Certificate is
not transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate which is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at
all times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Securities Administrator except to another Depository; (ii) the Depository shall
maintain book-entry records with respect to the Certificate Owners and with
respect to ownership and transfers of such Book-Entry Certificates; (iii)
ownership and transfers of registration of the Book-Entry Certificates on the
books of the Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Securities
Administrator shall deal with the Depository, Depository Participants and
indirect participating firms as representatives of the Certificate Owners of the
Book-Entry Certificates for purposes of exercising the rights of holders under
this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and (vi) the Securities Administrator
may rely and shall be fully protected in relying upon information furnished by
the Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and persons
shown on the books of such indirect participating firms as direct or indirect
Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall
be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the Securities
Administrator or the Depositor is unable to locate a qualified successor, or (y)
the Depositor notifies the Depository of its intent to terminate the book-entry
system through the Depository 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 Securities
Administrator shall notify all Certificate Owners, through the Depository, of
the occurrence of any such event and of the availability of definitive,
fully-registered Certificates (the "Definitive Certificates") to Certificate
Owners requesting the same. Upon surrender to the Securities Administrator of
the related Class of Certificates by the Depository, accompanied by the
instructions from the Depository for registration, the Securities Administrator
shall issue the Definitive Certificates. None of the Servicer, the Depositor or
the Securities Administrator shall be liable for any delay in delivery of such
instruction and each may conclusively rely on, and shall be protected in relying
on, such instructions. The Depositor shall provide the Securities Administrator
with an adequate inventory of Certificates to facilitate the issuance and
transfer of Definitive Certificates. Upon the issuance of Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Securities Administrator, to the extent applicable with respect to such
Definitive Certificates and the Securities Administrator shall recognize the
Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Securities Administrator shall not by virtue of its
assumption of such obligations become liable to any party for any act or failure
to act of the Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Securities
Administrator, duly executed by the Certificateholder or his attorney duly
authorized in writing (with copies to the Swap Provider). The Securities
Administrator shall forward any such IRS Form (other than with respect to a
Residual Certificate) received to the Swap Provider at 00 Xxxxxx Xxxxxx, 00xx
xxxxx, Xxxxxx Xxxx, XX 00000, attention: Xxxxxxx Xxxxxx. Each Private
Certificateholder by its purchase of a Certificate is deemed to consent to any
such IRS Form being so forwarded.
(g) Each Certificate presented or surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the
Securities Administrator in accordance with its customary practice. No service
charge shall be made for any registration of transfer or exchange of Private
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Private Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Securities Administrator, or
the Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to the
Depositor, the Servicer, the Master Servicer, the Trustee and the Securities
Administrator such security or indemnity as may be required by them to hold each
of them harmless, then, in the absence of notice to the Securities Administrator
that such Certificate has been acquired by a bona fide purchaser, the Securities
Administrator shall execute, authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like Class, tenor and Percentage Interest. In connection with the
issuance of any new Certificate under this Section 5.03, the Securities
Administrator may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Securities Administrator)
connected therewith. Any replacement Certificate issued pursuant to this Section
5.03 shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04 Persons Deemed Owners. The Servicer, the Securities
Administrator, the Master Servicer, the Trustee, the Depositor, and any agent of
the Servicer, the Depositor, the Securities Administrator, the Master Servicer
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 Master Servicer, the Securities Administrator, the Trustee,
the Depositor or any agent of the Servicer, the Securities Administrator, the
Master 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 Securities Administrator, (b) state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates, and (c)
provide a copy of the communication which such Certificateholders propose to
transmit, or if the Depositor, the Trustee or the Servicer shall request such
information in writing from the Securities Administrator, then the Securities
Administrator shall, within ten Business Days after the receipt of such request,
provide the Depositor, the Trustee, the Servicer or the Certificateholders at
such recipients' expense the most recent list of the Certificateholders of such
Trust Fund held by the Securities Administrator, if any. The Depositor and every
Certificateholder, by receiving and holding a Certificate, agree that the
Securities Administrator shall not be held accountable by reason of the
disclosure of any such information as to the list of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency. The Securities
Administrator will maintain or cause to be maintained at its expense an office
or offices or agency or agencies in the United States where Certificates may be
surrendered for registration of transfer or exchange. The Securities
Administrator initially designates its Corporate Trust Office for registration
of transfer or exchange purposes located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services - GSAMP
2006-FM3. The Securities Administrator shall give prompt written notice to the
Certificateholders of any change in such location of any such office or agency,
for purposes of the surrender of Certificates for the final distribution. The
Securities Administrator 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 SERVICERS
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 corporation, limited partnership or
limited liability company, as the case may be, under the laws of the United
States or under the laws of one of the states thereof and will each obtain and
preserve its qualification to do business as a foreign corporation, limited
partnership, a corporation or limited liability company, 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
meet the requirements of Section 7.02, and provided, however, that if such
merger, consolidation or succession adversely affects the then current rating or
ratings on the LIBOR Certificates, the Servicer shall resign from the
obligations and duties imposed by this Agreement subject to Section 6.04 of this
Agreement and any other requirements set forth herein. 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, the Servicer shall provide to the Depositor, the
Securities Administrator and the Master Servicer, at least 30 calendar days (or
10 Business Days in the case of the appointment of the servicing rights pledgee
or its designee as successor servicer pursuant to Section 7.02 provided, however
that the 30 calendar days or 10 Business Days notice period shall not apply once
the Depositor is not required to file reports pursuant to the Exchange Act)
prior to the effective date of such succession or appointment, (x) written
notice to the Depositor, the Securities Administrator and the Master Servicer of
such succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, the Securities Administrator and the
Master Servicer, all information reasonably necessary to enable the Securities
Administrator, 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 or 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
the Depositor may 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 (and the Trustee if directed by
the Depositor to take such action) shall be entitled to be reimbursed therefor
out of the Collection Account.
Section 6.04 Limitation on Resignation of the Servicer. Subject to
the provisions of Section 7.01, Section 6.02, the fourth and fifth paragraphs of
Section 7.02, no Servicer shall 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 Securities Administrator, (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 Securities Administrator in writing; and (b) each
Rating Agency shall have delivered a letter to the Securities Administrator
prior to the appointment of the successor servicer stating that the proposed
appointment of such successor servicer as the 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
Master Servicer, the Securities Administrator, the Trustee or the Trust Fund) to
such effect delivered to the Depositor, the Trustee, the Master Servicer and the
Securities Administrator which Opinion of Counsel shall be in form and substance
acceptable to the Depositor, the Trustee, the Master Servicer and the Securities
Administrator. 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, the
Responsible Party, the Master Servicer, the Securities Administrator and the
Trustee and any Affiliate, director, officer, employee or agent of the
Depositor, the Sponsor, the Responsible Party, the Master Servicer, the
Securities Administrator and the Trustee and hold each of them harmless against
any and all third-party 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 any
breach by the Servicer of (i) 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
immediately shall notify the Depositor, the Responsible Party, the Master
Servicer, the Securities Administrator and the Trustee 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, the Responsible Party, the Master
Servicer, the Securities Administrator and the Trustee) 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 Depositor, the Master Servicer, the Securities Administrator,
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 Master Servicer, the
Securities Administrator, the Sponsor, the Trustee and any director, officer,
employee or agent of the Depositor, the Sponsor, the Master Servicer, the
Securities Administrator or the Trustee 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 any failure by the
Servicer or any Subservicer engaged by the 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 the 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. (cIf 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 the Servicer, on the other, in connection with a
breach of the 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 with respect to the Servicer individually, any one of the
following events:
(a) any failure by the Servicer to remit to the Securities
Administrator 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 Securities
Administrator, or to the Servicer, the Depositor, the Master Servicer, the
Securities Administrator 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 (x) such number of days shall be fifteen
(15) in the case of a failure to pay any premium for any insurance policy
required to be maintained under this Agreement, (y) such number of days shall be
one (1) in the case of the failure to perform any of the obligations set forth
in Sections 3.22 and 3.23 and (z) such number of days shall be ten in the case
of a failure to observe or perform any of the obligations set forth in Sections
3.02, 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), such ten day cure period
shall be extended by the same time period) 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, the Securities Administrator
or by the Master Servicer, or to the Servicer, the Depositor, the Securities
Administrator, the Master Servicer and the Trustee by Certificateholders of
Certificates entitled to at least 25% of the Voting Rights and (ii) actual
knowledge of such failure by a Servicing Officer of the Servicer; provided,
however, that (except with respect to clauses (x), (y) and (z) above) in the
case of a failure or breach that cannot be cured within 30 days after notice or
actual knowledge by the Servicer, the cure period may be extended for an
additional 30 days upon delivery by the Servicer to the Securities Administrator
of a certificate to the effect that the Servicer believes in good faith that the
failure or breach can be cured within such additional time period and the
Servicer is diligently pursuing remedial action; or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for a
period of sixty days; or
(d) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property; or
(e) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(f) any failure of the Servicer to make any P&I Advance on any
Remittance Date required to be made from its own funds pursuant to Section 4.01
which continues unremedied for one Business Day immediately following the
Remittance Date.
If an Event of Default described in clauses (a) through (f) of this
Section 7.01 shall occur, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Master Servicer may, or at
the direction of Certificateholders entitled to a majority of the Voting Rights
the Master Servicer shall, by notice in writing to the Servicer (with a copy to
each Rating Agency), terminate all of the rights and obligations of the Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof,
other than its rights as a Certificateholder hereunder; provided, however, that
the Master Servicer shall not be required to give written notice to the Servicer
of the occurrence of an Event of Default described in clauses (b) through (f) of
this Section 7.01 unless and until a Responsible Officer of the Master Servicer
has actual knowledge of the occurrence of such an Event of Default. In the event
that a Responsible Officer of the Master Servicer has actual knowledge of the
occurrence of an Event of Default described in clause (a) of this Section 7.01
(i.e., solely as to a default caused by a failure to remit timely on a
Remittance Date), the Master Servicer shall give notice (by telephone or by
email, facsimile or other writing) to the Servicer of the occurrence of such
default by the end of business of the 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 default or event of default. In the
event that a Responsible Officer of the Master Servicer has actual knowledge of
the occurrence of an Event of Default described in clause (a) of this Section
7.01, the Master Servicer shall give written notice to the Servicer of the
occurrence of such an event within one Business Day of the first day on which
such Responsible Officer obtains actual knowledge of such occurrence; provided
that failure to give such notice shall not constitute a waiver of such Event of
Default. The Master Servicer, upon a Responsible Officer having actual knowledge
of such default, shall deliver a written notice to the Servicer of the default
on any Remittance Date on which the Servicer fails to make any deposit or
payment required pursuant to this Agreement (including, but not limited to
Advances, to the extent required by this Agreement); provided, however, that if
an Event of Default occurs due to the failure of the Servicer to make an Advance
to the extent required, the Master Servicer, as successor Servicer, or another
successor Servicer shall, prior to the applicable Distribution Date, immediately
make such Advance. Any such notice to the Servicer shall also be given to the
Trustee, each Rating Agency and the Depositor. Notwithstanding any other
provision of this Agreement, any remedy with respect to clause (a) of this
Section 7.01 shall be effective only if payment is received by the Master
Servicer by no later than noon (Eastern time) on the Business Day immediately
following the date of notice to the Servicer as set forth in the immediately
preceding sentence. If the Servicer fails to make such payment, the Master
Servicer shall send notice of termination (by email, facsimile or other writing)
to the Servicer, and, on and after the receipt by the Servicer of such notice,
or upon receipt by the Servicer of notice with respect to any other clause of
this Section 7.01, all authority and power of the Servicer hereunder, whether
with respect to the Mortgage Loans or otherwise, shall pass to and be vested in
the Master Servicer as the successor Servicer under Section 7.02. The Master
Servicer 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
Master Servicer in effecting the termination of the Servicer's responsibilities
and rights hereunder, including, without limitation, the transfer to the Master
Servicer 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.
Section 7.02 Master Servicer to Act; Appointment of Successor
Servicer. On and after the time the Master Servicer gives, and the Servicer
receives, a notice of termination pursuant to Section 7.01, the Master Servicer
shall, subject to a transition period not to exceed 90 days for the transfer of
actual servicing to the successor servicer, and subject to and to the extent
provided in Section 3.06, be the successor to the Servicer in its capacity as
servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to the obligation to make P&I Advances and Servicing
Advances pursuant to Section 4.01, whether or not this 90 day transition period
has elapsed, and after such transition period, if any, all the responsibilities,
duties and liabilities relating thereto placed on such Servicer by the terms and
provisions hereof and applicable law. As compensation therefor, the Master
Servicer shall be entitled to all funds relating to the Mortgage Loans that the
Servicer would have been entitled to charge to the Collection Account if the
Servicer had continued to act hereunder including, if the Servicer was receiving
the Servicing Fee, the Servicing Fee and the income on investments or gain
related to the Collection Account (in addition to income on investments or gain
related to the Distribution Account for the benefit of the Securities
Administrator). Notwithstanding the foregoing, if the Master Servicer has become
the successor to the Servicer in accordance with this Section 7.02, the Master
Servicer may, if it shall be unwilling to so act, or shall, if it is prohibited
by applicable law from making P&I Advances and Servicing Advances pursuant to
Section 4.01 or if it is otherwise unable to so act, or, at the written request
of Certificateholders entitled to a majority of the Voting Rights, appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution the appointment of which does not adversely affect
the then current rating of the Certificates by each Rating Agency, as the
successor to the Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder. Any successor
to the 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 Master Servicer an agreement accepting
such delegation and assignment, containing an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
Servicer (other than liabilities of the Servicer under Section 6.03 incurred
prior to termination of the Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; provided, that each Rating Agency
acknowledges that its rating of the Certificates in effect immediately prior to
such assignment and delegation will not be qualified or reduced, as a result of
such assignment and delegation. Pending appointment of a successor to the
Servicer hereunder, the Master Servicer, unless the Master Servicer 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 Master Servicer may make such arrangements for the compensation
of such successor out of payments on Mortgage Loans as it, the Depositor and
such successor shall agree; provided, however, that no such compensation shall
be in excess of the Servicing Fee and amounts paid to the Servicer from
investments. The Master Servicer and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Neither the Master Servicer nor any other successor 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 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 at its own expense. In addition, all Servicing Transfer Costs
incurred by parties other than the terminated Servicer (excluding set-up costs
and other administrative expenses of the successor Servicer, in which case the
successor Servicer shall pay for such costs and expenses but shall not be
entitled to reimbursement therefor from the Trust Fund, or if the successor
servicer fails to pay, the Securities Administrator pays such amounts from the
Trust Fund), such an amount shall be paid by the terminated Servicer promptly
upon presentation of reasonable documentation of such costs. If the Master
Servicer is the predecessor Servicer (except in the case where the Master
Servicer 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 Master
Servicer 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, the Securities
Administrator shall give prompt written notice thereof to Trustee,
Certificateholders, and to each Rating Agency.
(b) Within 60 days after the occurrence of any Event of Default, the
Securities Administrator shall transmit by mail to all Certificateholders, and
each Rating Agency notice of each such Event of Default hereunder known to the
Securities Administrator, unless such Event of Default shall have been cured or
waived.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee. The Trustee, before the
occurrence of a Master Servicer Event of Default and after the curing of all
Master Servicer Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case a Master Servicer Event of Default has occurred and remains
uncured, the Trustee shall exercise such of the rights and powers vested in it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
The Trustee, 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 a Master Servicer Event of Default known to a Responsible
Officer of 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 Master Servicer shall be permitted to utilize one or more
Subcontractors for the performance of certain of its obligations under this
Agreement, provided that the Master Servicer complies with Section 3.02(e) as if
the Master Servicer were a "Servicer" pursuant to that Section. The Master
Servicer shall indemnify the Depositor, the Securities Administrator, 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 Master Servicer to perform any
of its obligations under Section 3.22 or Section 3.23, including without
limitation any failure by the Master Servicer 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 Master Servicer.
The Trustee shall not be permitted to utilize Subcontractors for the
performance of its obligations under this Agreement, unless the Trustee complies
with Section 3.02(e) as if the Trustee were a "Servicer" pursuant to that
Section.
Section 8.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties and the Trustee shall not have any responsibility to
ascertain or confirm the genuineness of any signature of any such party or
parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(c) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(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);
(h) the Trustee shall not be deemed to have knowledge of a Master
Servicer Event of Default or an Event of Default until a Responsible Officer of
the Trustee shall have received written notice thereof 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. The Trustee shall not be accountable for the use or
application by the Depositor, the Securities Administrator, the Master Servicer
or the Servicer of any funds paid to the Depositor, the Securities
Administrator, the Master Servicer or the Servicer in respect of the Mortgage
Loans or deposited in or withdrawn from the Collection Account by the Depositor,
the Securities Administrator, the Master Servicer 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
Master Servicer).
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 and Indemnification. As
compensation for its activities under this Agreement, the Trustee shall be paid
its fee by the Securities Administrator from the Securities Administrator's own
funds pursuant to a separate fee schedule. The Trustee shall have no lien on the
Trust Fund for the payment of such fees. 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
attorney's fees) resulting from any error in any tax or information return
prepared by the Master Servicer or incurred in connection with:
(a) any claim or legal action relating to this Agreement, or
(b) any claim or legal action relating to the Certificates or the
Interest Rate Swap Agreement; or
(c) except as set forth in the last paragraph of this Section 8.05,
the performance of any of the Trustee's duties under this Agreement,
other than any loss, liability, or expense with respect to the
Trustee (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) incurred
because of willful misfeasance, bad faith, or negligence in the performance of
any of the Trustee's duties under this Agreement, (iii) resulting from any
breach of the Responsible Party's obligations in connection with this Agreement
for which the Responsible Party has performed its obligation to indemnify the
Trustee pursuant to Section 2.03(g) or (iv) resulting from any breach of the
Master Servicer's obligations hereunder for which the Master Servicer has
performed its obligation to indemnify the Trustee pursuant to this Agreement.
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 expressly 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
under this Agreement or for any other expenses incurred by the Trustee;
provided, however, no expense shall be reimbursed by the Trust Fund 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 its Affiliates; provided,
however, that such entity cannot be an Affiliate of the Depositor or the
Servicer other than the Trustee in its role as successor to the Master 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 Securities Administrator,
the Master Servicer, the Servicer and each Rating Agency not less than 60 days
before the date specified in such notice, when, subject to Section 8.08, such
resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 8.08 meeting the qualifications set forth in Section
8.06. If no successor trustee meeting such qualifications shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice or resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with Section 8.06 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, then the Depositor or the Servicer may remove the Trustee and
appoint a successor trustee by written instrument, in triplicate, one copy of
which shall be delivered to the Trustee, one copy to the Servicer and one copy
to the successor trustee.
The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. The
successor trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.08.
Section 8.08 Successor Trustee. Any successor trustee appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee and the Servicer an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The Depositor, the
Servicer and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for more fully and
certainly vesting and confirming in the successor trustee all such rights,
powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section 8.09 Merger or Consolidation of the Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under Section 8.06
without the execution or filing of any paper or further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding. 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
and the Securities Administrator of such succession or appointment and shall
furnish to the Depositor and the Securities Administrator in writing and in form
and substance reasonably satisfactory to the Depositor and the Securities
Administrator, all information reasonably necessary for the Securities
Administrator 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 and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by the Servicer
of a request to do so, or in the case an Event of Default shall have occurred
and be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06 and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.10, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee (as successor Master
Servicer, acting as successor servicer) under this Agreement to advance funds on
behalf of the Master Servicer, shall be conferred or imposed upon and exercised
or performed by the Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the applicable Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of
any act or omission of any other trustee hereunder and such appointment shall
not, and shall not be deemed to, constitute any such separate trustee or
co-trustee as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee; and
(d) The Trust Fund, and not the Trustee, shall be liable for the
payment of reasonable compensation, reimbursement and indemnification to any
such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, when
and as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this 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
Securities Administrator covenants and agrees that it shall act as agent (and
the Securities Administrator is hereby appointed to act as agent) on behalf of
each Trust REMIC described in the Preliminary Statement and that in such
capacity it shall:
(a) prepare (and the Trustee shall 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 the Trustee shall sign) 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, 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) deliver or cause to be delivered the federal taxpayer
identification number of the grantor trust on an IRS Form W-9 of the grantor
trust to the Swap Provider at the time the Interest Rate Swap Agreement is
entered into and, if requested by the Swap Provider, an applicable IRS Form
W-8IMY;
(d) 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);
(e) 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);
(f) 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);
(g) 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;
(h) 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;
(i) 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 Securities Administrator or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Securities Administrator from withholding payment of such
tax, if permitted by law, pending the outcome of such proceedings);
(j) cause federal, state or local income tax or information returns
to be signed by the Securities Administrator or, if required by applicable tax
law (as is currently the case), 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
(k) 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 RX
Certificates shall act as Tax Matters Person for the Class X REMIC, and 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
RC Certificates shall act as Tax Matters Person for Pooling-Tier REMIC-1, in
each case, within the meaning of Treasury Regulations Section 1.860F-4(d), and
the Securities Administrator is hereby designated as agent of such
Certificateholders for such purpose (or if the Securities Administrator is not
so permitted, such Holder shall be the Tax Matters Person in accordance with the
REMIC Provisions). In such capacity, the Securities Administrator shall, as and
when necessary and appropriate, represent 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 Securities Administrator shall treat the rights of the Class P
Certificateholders to receive Prepayment Premiums, the rights of the Class X
Certificateholders to receive amounts from the Excess Reserve Fund Account, 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 Securities Administrator shall file or cause to be filed with the
Internal Revenue Service Form 1041 or such other form as may be applicable and
shall furnish or cause to be furnished, to the Class 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 Securities Administrator to perform its duties under
this Agreement, the Depositor shall provide to the Securities Administrator
within ten days after the Closing Date all information or data that the
Securities Administrator requests in writing and determines to be relevant for
tax purposes to the valuations and offering prices of the Certificates,
including the price, yield, prepayment assumption, and projected cash flows of
the Certificates and the Mortgage Loans. Moreover, the Depositor shall provide
information to the Securities Administrator concerning the value, if any, to
each Class of 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 Securities
Administrator promptly upon written request therefor any additional information
or data that the Securities Administrator may, from time to time, reasonably
request to enable the Securities Administrator to perform its duties under this
Agreement; 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 is required to provide to the Securities
Administrator pursuant to this Agreement. The Depositor hereby indemnifies the
Securities Administrator for any losses, liabilities, damages, claims, or
expenses of the Securities Administrator arising from any errors or
miscalculations of the Securities Administrator that result from any failure of
the Depositor to provide, pursuant to this paragraph, accurate information or
data to the Securities Administrator on a timely basis.
None of the Servicer, the Trustee, the Master Servicer or the
Securities Administrator shall (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 Securities Administrator 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 Securities Administrator) 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, the
Master Servicer or the Securities Administrator, respectively, if such tax
arises out of or results from negligence of the Trustee, the Master Servicer or
the Securities Administrator, as applicable, 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
Responsible Party if such tax arises out of or results from the Responsible
Party's obligation to repurchase a Mortgage Loan pursuant to Section 2.03 or
(iv) in all other cases, or if the Trustee, the Master Servicer, the Securities
Administrator, the Servicer, the Responsible Party fails to honor its
obligations under the preceding clause (i), (ii), or (iii), any such tax will be
paid with amounts otherwise to be distributed to the Certificateholders, as
provided in Section 4.02(a).
For as long as each Trust REMIC shall exist, the Securities
Administrator 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 Securities Administrator 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 Securities Administrator, the
Master Servicer and the Servicer shall reasonably cooperate with the Depositor
in connection with the reporting requirements of the Trust under the Exchange
Act. The Securities Administrator shall prepare for execution by the Master
Servicer, on behalf of 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 Securities Administrator shall file (via the Commission's
Electronic Data Gathering and Retrieval System) such Forms executed by the
Depositor or the Master Servicer, on behalf of the Depositor, as applicable. The
Securities Administrator shall have no duty to verify information received by it
from other Persons (other than Subcontractors utilized by the Securities
Administrator) 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 Securities Administrator shall
prepare and file, and the Master Servicer shall sign, 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 Securities Administrator 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 the Securities
Administrator shall compile such disclosure pursuant to the following paragraph.
The Depositor will approve, as to form and substance, or disapprove, as the case
may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The
Securities Administrator 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 5 calendar days after the
related Distribution Date, (i) certain parties to this Agreement shall be
required to provide to the Securities Administrator and the Depositor, to the
extent known by such applicable parties, in Xxxxx-compatible form, or in such
other form as otherwise agreed upon by the Securities Administrator and such
party, the form and substance of any Additional Form 10-D Disclosure, if
applicable and (ii) the Depositor will approve, as to the form and substance, or
disapprove, as the case may be, the inclusion of the Additional Form 10-D
Disclosure on Form 10-D. The Depositor shall be responsible for any reasonable
fees and expenses assessed or incurred by the Securities Administrator in
connection with any Additional Form 10-D Disclosure on Form 10-D pursuant to
this Section 8.12(b).
After preparing the Form 10-D, the Securities Administrator shall
forward electronically a draft copy of the Form 10-D to the Depositor for review
and verification by the Depositor. No later than 3 Business Days prior to the
14th calendar day after the related Distribution Date, an officer of the Master
Servicer in charge of the master servicing function 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 Securities Administrator
and the Depositor, and no later than 5:00 p.m. New York City time on the 14th
calendar day after such Distribution Date, the Securities Administrator shall
file such Form 10-D with the Commission. If a Form 10-D cannot be filed on time
or if a previously filed Form 10-D needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 8.12(f)(ii).
Promptly (but no later than one Business Day) after filing with the Commission,
the Securities Administrator will make available on its internet website
(located at xxx.xxxxxxx.xxx) a final executed copy of each Form 10-D prepared by
the Securities Administrator. The signing party at the Master Servicer can be
contacted at the Master Servicer's address for notices set forth in Section
12.05(b), or such other address as to which the Master Servicer has provided
prior written notice to the Securities Administrator. The Depositor acknowledges
that the performance by the Securities Administrator 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 Securities Administrator, the Master Servicer,
the Depositor and any other Person obligated to provide Additional Form 10-D
Disclosure as set forth on Exhibit U hereto strictly observing all applicable
deadlines in the performance of their duties under this Section 8.12(b).
Promptly (but no later than one Business Day) after filing with the Commission,
the Securities Administrator will make available on its internet website a final
executed copy of each Form 10-D filed by the Securities Administrator. The
Securities Administrator 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
Securities Administrator's inability or failure to obtain or receive, on a
timely basis, any information from any party hereto (other than the Securities
Administrator or any Subcontractor utilized by the Securities Administrator)
needed to prepare, arrange for execution or file such Form 10-D, not resulting
from its own negligence, bad faith or willful misconduct.
Form 10-D requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Securities Administrator that the Depositor has filed or
caused to be filed all such required reports during the preceding 12 months and
that it has been subject to such filing requirement for the past 90 days. The
Depositor shall notify the Securities Administrator in writing no later than the
fifth calendar day after the related Distribution Date with respect to the
filing of a report on Form 10-D if the answer to the questions should be no. The
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such report.
(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 Securities Administrator 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 Securities Administrator
within the applicable time frames set forth in this Agreement, (i) an annual
compliance statement for the Servicer and each Subservicer engaged by the
Servicer, as described under Section 3.22, (ii)(A) the annual reports on
assessment of compliance with applicable servicing criteria for the Securities
Administrator, the Master Servicer, the Servicer, the Trustee (in its capacity
as custodian), each Subservicer engaged by the Servicer and each Servicing
Function Participant utilized by the Servicer, the Master Servicer or the
Securities Administrator, as described under Section 3.23 and (B) if any such
report on assessment of compliance with servicing criteria described under
Section 3.23 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 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 Securities Administrator, the Master
Servicer, the Servicer, the Trustee (in its capacity as custodian) (if the Trust
is subject to Exchange Act Reports for such fiscal year), each Subservicer
engaged by the Servicer and each Servicing Function Participant utilized by the
Servicer, the Master Servicer or the Securities Administrator, as described
under Section 3.23, and (B) if any registered public accounting firm attestation
report described under Section 3.23 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 an officer of the Depositor. 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 the Securities Administrator shall compile such disclosure
pursuant to the following paragraph. The Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K. The Securities Administrator 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 14 of each
year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2007, (i) certain parties to this Agreement shall be required to
provide to the Securities Administrator and the Depositor, to the extent known
by such applicable parties, in Xxxxx-compatible form, or in such other form as
otherwise agreed upon by the Securities Administrator and such party, the form
and substance of any Additional Form 10-K Disclosure, if applicable and (ii) the
Depositor will approve, as to the form and substance, or disapprove, as the case
may be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K. The
Depositor shall be responsible for any reasonable fees and expenses assessed or
incurred by the Securities Administrator in connection with any Additional Form
10-K Disclosure on Form 10-K pursuant to this Section 8.12(c).
After preparing the Form 10-K, the Securities Administrator shall
forward electronically a draft copy of the Form 10-K to the Depositor for review
and verification by the Depositor. No later than 5:00 p.m. EST on the 4th
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 Securities Administrator. If a Form 10-K cannot be filed on time or if a
previously filed Form 10-K needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 8.12(f)(ii). The Depositor
acknowledges that the performance by the Securities Administrator 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 any Subservicer or Servicing Function
Participant engaged by the 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.
Promptly (but no later than one Business Day) after filing with the Commission,
the Securities Administrator will make available on its internet website a final
executed copy of each Form 10-K filed by the Securities Administrator. The
Securities Administrator 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
Securities Administrator's inability or failure to obtain or receive, on a
timely basis, any information from any party hereto (other than the Securities
Administrator or any Subcontractor utilized by the Securities Administrator)
needed to prepare, arrange for execution or file such Form 10-K, not resulting
from its own negligence, bad faith or willful misconduct.
Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days." The Depositor hereby
represents to the Securities Administrator that the Depositor has filed or
caused to be filed all such required reports during the preceding 12 months and
that it has been subject to such filing requirement for the past 90 days. The
Depositor shall notify the Securities Administrator in writing no later than
March 15 in any year in which the Trust is subject to the reporting requirements
of the Exchange Act, if the answer to either question should be "no". The
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such report.
(d) In connection with the execution of a Sarbanes Certification,
the Securities Administrator 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, the Servicer shall sign a
certification solely with respect to the Servicer (in the form attached hereto
as Exhibit Q-1, with such changes as may be necessary as a result of changes
promulgated by the Commission) for the benefit of the Depositor, the Securities
Administrator and their respective officers, directors and Affiliates and the
applicable Subservicer shall sign a certification solely with respect to such
Subservicer (in the form attached hereto as Exhibit Q-2, 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 Securities Administrator and
their respective officers, directors and Affiliates and the Master Servicer
shall sign a certification solely with respect to the Master Servicer (in the
form attached hereto as Exhibit Q-3, with such changes as may be necessary as a
result of changes promulgated by the Commission) for the benefit of the
Depositor, the Securities Administrator 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
Securities Administrator of the signed Form 10-K pursuant to this 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 Securities Administrator or the 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 Securities Administrator shall
indemnify and hold harmless the Depositor, the Servicer 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 Securities Administrator'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 Sections 3.23 and 8.12 of this Agreement and
Exhibits U, V and W to this Agreement provided by or on behalf of the Securities
Administrator or any Subcontractor utilized by the Securities Administrator
(excluding any information, report, certification or other materials provided in
written or electronic form by or on behalf of any Person other than the
Securities Administrator or any Subcontractor utilized by the Securities
Administrator) or negligence, bad faith or willful misconduct in connection
therewith, and (ii) the Servicer shall indemnify and hold harmless the
Depositor, the Sponsor, the Securities Administrator 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 Securities Administrator agrees in connection
with a breach of the Securities Administrator'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 Sections 3.23 and 8.12 of this Agreement and
Exhibits U, V and W to this Agreement provided by or on behalf of the Securities
Administrator or any Subcontractor utilized by the Securities Administrator
(excluding any information, report, certification or other materials provided in
written or electronic form by or on behalf of any Person other than the
Securities Administrator or any Subcontractor utilized by the Securities
Administrator) 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 Securities Administrator 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. The
obligations of the Securities Administrator and the Servicer under this Section
8.12(d) shall apply to the Securities Administrator and the Servicer that
serviced a Mortgage Loan during the applicable period, whether or not such
Securities Administrator or Servicer, as applicable, is acting as Securities
Administrator or Servicer, as applicable, at the time such certification is
required to be delivered. The indemnification and contribution obligations set
forth in this Section 8.12(d) shall survive the termination of this Agreement or
the earlier resignation or removal of the Securities Administrator or the
Servicer, as applicable.
(e) Upon any filing with the Commission, the Securities
Administrator 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 8.12 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 Securities Administrator is able to do
so under applicable law, the Securities Administrator shall prepare and 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 Securities Administrator 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 8.12.
(ii) In the event that the Securities Administrator 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 Securities Administrator will immediately notify the Depositor and the
Servicer. In the case of Form 10-D and 10-K, the Depositor, the Servicer
and the Securities Administrator 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 Securities Administrator shall file in
accordance with this Agreement. In the case of Form 8-K, the Securities
Administrator will, upon receipt of all disclosure information required to
be included on Form 8-K and upon the approval and direction of the
Depositor, 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
Securities Administrator 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 Master Servicer, on behalf of the Depositor. The Depositor
acknowledges that the performance by the Securities Administrator 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 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. The Securities Administrator 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 Securities Administrator's inability or
failure to obtain or receive, on a timely basis, any information from any
party hereto (other than the Securities Administrator or any Subcontractor
utilized by the Securities Administrator) 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 Securities Administrator 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 compiled by the
Securities Administrator pursuant to the following paragraph. The Depositor will
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 8-K Disclosure on Form 8-K. The Securities
Administrator 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 (i)
certain parties to this Agreement shall be required to provide to the Depositor
and the Securities Administrator, to the extent known by such applicable
parties, in Xxxxx-compatible form, or in such other form as otherwise agreed
upon by the Securities Administrator and such party, the form and substance of
any Additional Form 8-K Disclosure Information, if applicable and (ii) the
Depositor will approve, as to the form and substance, or disapprove, as the case
may be, the inclusion of the Additional Form 8-K Disclosure on Form 8-K. The
Depositor shall be responsible for any reasonable fees and expenses assessed or
incurred by the Securities Administrator in connection with any Additional Form
8-K Disclosure on Form 8-K pursuant to this Section 8.12(g).
After preparing the Form 8-K, the Securities Administrator shall
forward electronically a draft copy of the Form 8-K to the Depositor for review
and verification by the Depositor. No later than the end of the 4th Business Day
after the Reportable Event, an officer of the Master Servicer, on behalf 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 Securities Administrator. If a Form 8-K cannot be filed on time or
if a previously filed Form 8-K needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 8.12(f)(ii). The signing party
at the Master Servicer can be contacted at the Master Servicer's address for
notices set forth in Section 12.05(b), or such other address as to which the
Master Servicer has provided prior written notice to the Securities
Administrator. The Depositor acknowledges that the performance by the Securities
Administrator 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
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). Promptly (but no
later than one Business Day) after filing with the Commission, the Securities
Administrator will make available on its internet website a final executed copy
of each Form 8-K filed by the Securities Administrator. The Securities
Administrator 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 Securities
Administrator's inability or failure to obtain or receive, on a timely basis,
any information from any party hereto (other than the Securities Administrator
or any Subcontractor utilized by the Securities Administrator) 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 Securities Administrator 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 Securities Administrator or any Subcontractor utilized by the
Securities Administrator) provided to the Securities Administrator 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 Securities Administrator
pursuant to this Section 8.12, in either case, not resulting from the Securities
Administrator'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 Securities Administrator 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
notional principal contract between the Class X Certificateholders and each such
Class. Accordingly, each Class of Certificates (excluding the Class X, Class P
and the Residual Certificates) will be comprised of two components - an
Upper-Tier Regular Interest and an interest in an interest rate cap contract
(subject to the obligation to pay Class IO Shortfalls), and the Class X
Certificates will be comprised of the following components: (i) two Class X
REMIC Regular Interests (the Class X Interest and the Class IO Interest), (ii)
ownership of the Excess Reserve Fund Account, subject to an obligation to pay
Basis Risk Carry Forward Amounts and (iii) ownership of the Supplemental
Interest Trust (including 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 Securities Administrator 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 Securities Administrator is hereby
directed to assign a value of zero to the right of each Holder of a LIBOR
Certificate to receive the related Basis Risk Carry Forward 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
ADMINISTRATION OF THE MORTGAGE LOANS BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of
Servicer's Obligations. (a) The Master Servicer, on behalf of the Trustee, the
Securities Administrator, the Depositor and the Certificateholders, shall
monitor the performance of the Servicer's obligations under this Agreement, and
(except as set forth below) shall use its reasonable good faith efforts to cause
the Servicer to duly and punctually perform its duties and obligations
hereunder. Upon the occurrence of an Event of Default of which a Responsible
Officer of the Master Servicer has actual knowledge, the Master Servicer shall
promptly notify the Securities Administrator and the Trustee and shall specify
in such notice the action, if any, the Master Servicer plans to take in respect
of such default. So long as an Event of Default shall occur and be continuing,
the Master Servicer shall take the actions specified in Article VII.
If (i) the Servicer reports a delinquency on a monthly report and
(ii) the Servicer, by 11 a.m. (New York Time) on the related Remittance Date,
neither makes an Advance nor provides the Securities Administrator and the
Master Servicer with an Officer's Certificate certifying that such an Advance
would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, then
the Master Servicer shall deposit in the Distribution Account not later than the
Business Day immediately preceding the related Distribution Date an Advance in
an amount equal to the difference between (x) with respect to each Monthly
Payment due on a Mortgage Loan that is delinquent (other than Relief Act
Interest Shortfalls) and for which the Servicer was required to make an Advance
pursuant to this Agreement and (y) amounts deposited in the Collection Account
to be used for Advances with respect to such Mortgage Loan, except to the extent
the Master Servicer determines any such Advance to be a Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance. Subject to the foregoing and
Section 7.02, the Master Servicer shall continue to make such Advances for so
long as the Servicer is required to do so under this Agreement. If applicable,
on the Business Day immediately preceding the Distribution Date, the Master
Servicer shall deliver an Officer's Certificate to the Trustee stating that the
Master Servicer elects not to make an Advance in a stated amount and detailing
the reason(s) it deems the Advance to be a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance. Any amounts deposited by the Master Servicer
pursuant to this Section 9.01 shall be net of the Servicing Fee for the related
Mortgage Loans.
(b) The Master Servicer shall pay the costs of monitoring the
Servicer as required hereunder (including costs associated with (i) termination
of the Servicer, (ii) the appointment of a successor servicer or (iii) the
transfer to and assumption of, the servicing by the Master Servicer) and shall,
to the extent permitted hereunder, seek reimbursement therefor initially from
the terminated Servicer. In the event the full costs associated with the
transition of servicing responsibilities to the Master Servicer are not paid for
by the predecessor or successor Servicer (provided such successor Servicer is
not the Master Servicer), the Master Servicer may be reimbursed therefor by the
Trust for out-of-pocket costs incurred by the Master Servicer associated with
any such transfer of servicing duties from the Servicer to the Master Servicer
or any other successor servicer.
(c) If the Master Servicer assumes the servicing with respect to any
of the Mortgage Loans, it will not assume liability for the representations and
warranties of the Servicer it replaces or for any errors or omissions of the
Servicer.
(d) Neither the Depositor nor the Securities Administrator shall
consent to the assignment by the Servicer of the Servicer's rights and
obligations under this Agreement without the prior written consent of the Master
Servicer, which consent shall not be unreasonably withheld.
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions
Insurance. The Master Servicer, at its expense, shall maintain in effect a
blanket fidelity bond and an errors and omissions insurance policy, affording
coverage with respect to all directors, officers, directors, employees and other
Persons acting on such Master Servicer's behalf, and covering errors and
omissions in the performance of the Master Servicer's obligations hereunder. The
errors and omissions insurance policy and the fidelity bond shall be in such
form and amount generally acceptable for entities serving as master servicers or
trustees.
Section 9.03 Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to the Servicer, the
Depositor, the Responsible Party, the Securities Administrator and the Trustee,
for the benefit of the Certificateholders, as of the Closing Date that:
(i) it is a national banking association validly existing and in
good standing under the laws of the United States of America, and as
Master Servicer has full power and authority to transact any and all
business contemplated by this Agreement and to execute, deliver and comply
with its obligations under the terms of this Agreement, the execution,
delivery and performance of which have been duly authorized by all
necessary corporate action on the part of the Master Servicer;
(ii) the execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement will not (A) violate the Master Servicer's charter or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Master Servicer is a party or by which it is bound
or to which any of its assets are subject, which violation, default or
breach would materially and adversely affect the Master Servicer's ability
to perform its obligations under this Agreement;
(iii) this Agreement constitutes, assuming due authorization,
execution and delivery hereof by the other respective parties hereto, a
legal, valid and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights in general, and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(iv) the Master Servicer is not in default with respect to any order
or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency to the extent that any such default would
materially and adversely affect its performance hereunder;
(v) the Master Servicer is not a party to or bound by any agreement
or instrument or subject to any charter provision, bylaw or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that may materially and adversely affect its ability as
Master Servicer to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit its entering into this Agreement or performing its obligations
under this Agreement;
(vii) [Reserved];
(viii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated
by this Agreement, except for such consents, approvals, authorizations and
orders (if any) as have been obtained; and
(ix) the consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer.
(b) [Reserved].
(c) It is understood and agreed that the representations and
warranties set forth in this Section 9.03 shall survive the execution and
delivery of this Agreement. The Master Servicer shall indemnify the Servicer,
the Depositor, the Securities Administrator, the Responsible Party, the Trustee
and the Trust and hold them harmless against any loss, damages, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments, and
other reasonable costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a material breach of the
Master Servicer's representations and warranties contained in Section 9.03(a)
above. It is understood and agreed that the enforcement of the obligation of the
Master Servicer set forth in this Section 9.03 to indemnify the Servicer, the
Depositor, the Securities Administrator, the Responsible Party, the Trustee and
the Trust constitutes the sole remedy of the Servicer, the Depositor, the
Securities Administrator, the Responsible Party, the Trustee and the Trust,
respecting a breach of the foregoing representations and warranties. Such
indemnification shall survive any termination of the Master Servicer as Master
Servicer hereunder and any termination of this Agreement.
Any cause of action against the Master Servicer relating to or
arising out of the breach of any representations and warranties made in this
Section 9.03 shall accrue upon discovery of such breach by either the Servicer,
Depositor, the Master Servicer, Securities Administrator, the Responsible Party
or the Trustee or notice thereof by any one of such parties to the other
parties.
Section 9.04 Master Servicer Events of Default. Each of the
following shall constitute a "Master Servicer Event of Default":
(a) any failure by the Master Servicer to deposit in the
Distribution Account any payment received by it from the Servicer or required to
be made by the Master Servicer under the terms of this Agreement which continues
unremedied for a period of two (2) Business Days after the date upon which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by any other party hereto;
(b) failure by the Master Servicer to duly observe or perform, in
any material respect, any other covenants, obligations or agreements of the
Master Servicer as set forth in this Agreement which failure continues
unremedied for a period of thirty (30) days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer by the Trustee or to the Master Servicer and Trustee by
the holders of Certificates evidencing at least 25% of the Voting Rights;
provided that the thirty (30) day cure period shall not apply so long as the
Depositor is required to file any Forms 8-K, 10-D and 10-K required by the
Exchange Act with respect to the Trust Fund, the failure to comply with the
requirements set forth in Section 8.12, for which the grace period shall not
exceed the lesser of ten (10) calendar days or such period in which any
applicable Form 8-K, 10-D and 10-K required by the Exchange Act can be timely
filed (without taking into account any extensions);
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master Servicer
and such decree or order shall have remained in force, undischarged or unstayed
for a period of sixty (60) days;
(d) the Master Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to the Master Servicer or relating to all or
substantially all of its property;
(e) the Master Servicer shall admit in writing its inability to pay
its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations for
three (3) Business Days;
(f) except as otherwise set forth herein, the Master Servicer
attempts to assign this Agreement or its responsibilities hereunder or to
delegate its duties hereunder (or any portion thereof) without the consent of
the Securities Administrator, the Trustee and the Depositor; or
(g) the indictment of the Master Servicer for the taking of any
action by the Master Servicer, any Affiliate or any director or employee thereof
that constitutes fraud or criminal activity in the performance of its
obligations under this Agreement, in each case, where such indictment materially
and adversely affects the ability of the Master Servicer to perform its
obligations under this Agreement (subject to the condition that such indictment
is not dismissed within ninety (90) days).
In each and every such case, so long as a Master Servicer Event of
Default shall not have been remedied, in addition to whatever rights the Trustee
may have at law or equity to damages, including injunctive relief and specific
performance, the Trustee, by notice in writing to the Master Servicer, may, and
upon the request of the Holders of Certificates representing at least 51% of the
Voting Rights shall, terminate with cause all the rights and obligations of the
Master Servicer under this Agreement.
Upon receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement, shall pass to
and be vested in any successor master servicer appointed hereunder which accepts
such appointments. Upon written request from the Trustee or the Depositor, the
Master Servicer shall prepare, execute and deliver to the successor entity
designated by the Trustee any and all documents and other instruments related to
the performance of its duties hereunder as the Master Servicer and, place in
such successor's possession all such documents with respect to the master
servicing of the Mortgage Loans and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, at the Master Servicer's sole expense. The Master Servicer shall
cooperate with the Trustee and such successor master servicer in effecting the
termination of the Master Servicer's responsibilities and rights hereunder,
including without limitation, the transfer to such successor master servicer for
administration by it of all cash amounts which shall at the time be credited to
the Distribution Account or are thereafter received with respect to the Mortgage
Loans.
All reasonable out-of-pocket costs and expenses incurred by the
Trustee in connection with the transfer of servicing from a terminated Master
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 other successor Master Servicer appointed pursuant to
Section 9.06) to master service shall be paid by the terminated Master Servicer;
provided, however, that to the extent not previously reimbursed by the
terminated Master Servicer, such fees and expenses shall be payable to the
Trustee pursuant to Section 8.05.
Upon the occurrence of a Master Servicer Event of Default, the
Trustee shall provide the Depositor in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a successor master servicer in the event the
Trustee should succeed to the duties of the Master Servicer as set forth herein.
Section 9.05 Waiver of Default. By a written notice, the Trustee may
with the consent of a Holders of Certificates evidencing at least 51% of the
Voting Rights waive any default by the Master Servicer in the performance of its
obligations hereunder and its consequences. Upon any waiver of a past default,
such default shall cease to exist, and any Master Servicer Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
Section 9.06 Successor to the Master Servicer. Upon termination of
the Master Servicer's responsibilities and duties under this Agreement, the
Trustee shall appoint or may petition any court of competent jurisdiction for
the appointment of a successor, which shall succeed to all rights and assume all
of the responsibilities, duties and liabilities of the Master Servicer under
this Agreement prior to the termination of the Master Servicer. Any successor
shall be a Xxxxxx Xxx and Xxxxxxx Mac approved servicer in good standing and
acceptable to the Depositor and the Rating Agencies. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided, however, that in no event shall the Master
Servicing Fee paid to such successor master servicer exceed that paid to the
Master Servicer hereunder. In the event that the Master Servicer's duties,
responsibilities and liabilities under this Agreement are terminated, the Master
Servicer shall continue to discharge its duties and responsibilities hereunder
until the effective date of such termination with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement and shall
take no action whatsoever that might impair or prejudice the rights of its
successor. The termination of the Master Servicer shall not become effective
until a successor shall be appointed pursuant hereto and shall in no event (i)
relieve the Master Servicer of responsibility for the representations and
warranties made pursuant to Section 9.03(a) hereof and the remedies available to
the Trustee under Section 9.03(b) hereof, it being understood and agreed that
the provisions of Section 9.03 hereof shall be applicable to the Master Servicer
notwithstanding any such sale, assignment, resignation or termination of the
Master Servicer or the termination of this Agreement; or (ii) affect the right
of the Master Servicer to receive payment and/or reimbursement of any amounts
accruing to it hereunder prior to the date of termination (or during any
transition period in which the Master Servicer continues to perform its duties
hereunder prior to the date the successor master servicer fully assumes its
duties).
If no successor Master Servicer has accepted its appointment within
90 days of the time the Trustee receives the resignation of the Master Servicer,
the Trustee shall be the successor Master Servicer in all respects under this
Agreement and shall have all the rights and powers and be subject to all the
responsibilities, duties and liabilities relating thereto, including the
obligation to make Advances; provided, however, that any failure to perform any
duties or responsibilities caused by the Master Servicer's failure to provide
information required by this Agreement shall not be considered a default by the
Trustee hereunder. In the Trustee's capacity as such successor, the Trustee
shall have the same limitations on liability herein granted to the Master
Servicer. As compensation therefor, the Trustee shall be entitled to receive the
compensation, reimbursement and indemnities otherwise payable to the Master
Servicer, including the fees and other amounts payable pursuant to Section 9.07
hereof.
Any successor master servicer appointed as provided herein, shall
execute, acknowledge and deliver to the Master Servicer and to the Trustee an
instrument accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 9.03 hereof, and whereupon
such successor shall become fully vested with all of the rights, powers, duties,
responsibilities, obligations and liabilities of the Master Servicer, with like
effect as if originally named as a party to this Agreement. Any termination or
resignation of the Master Servicer or termination of this Agreement shall not
affect any claims that the Trustee may have against the Master Servicer arising
out of the Master Servicer's actions or failure to act prior to any such
termination or resignation or in connection with the Trustee's assumption as
successor master servicer of such obligations, duties and responsibilities.
Upon a successor's acceptance of appointment as such, the Master
Servicer shall notify by mail the Trustee of such appointment.
Section 9.07 Compensation of the Master Servicer. As compensation
for its activities under this Agreement, the Master Servicer shall be paid the
Master Servicing Fee.
Section 9.08 Merger or Consolidation. Any Person into which the
Master Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor to the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that the successor or resulting Person to the Master Servicer
shall (i) be a Person (or have an Affiliate) that is qualified and approved to
service mortgage loans for Xxxxxx Xxx and Xxxxxxx Mac (provided further that a
successor Master Servicer that satisfies subclause (i) through an Affiliate
agrees to service the Mortgage Loans in accordance with all applicable Xxxxxx
Mae and Xxxxxxx Mac guidelines) and (ii) have a net worth of not less than
$25,000,000.
Section 9.09 Resignation of the Master Servicer. Except as otherwise
provided in Sections 9.08 and 9.10 hereof, the Master Servicer shall not resign
from the obligations and duties hereby imposed on it unless the Master
Servicer's duties hereunder are no longer permissible under applicable law or
are in material conflict by reason of applicable law with any other activities
carried on by it and cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
that shall be independent to such effect delivered to the Trustee. No such
resignation shall become effective until the Trustee shall have assumed, or a
successor master servicer satisfactory to the Trustee and the Depositor shall
have assumed, the Master Servicer's responsibilities and obligations under this
Agreement. Notice of such resignation shall be given promptly by the Master
Servicer and the Depositor to the Trustee.
If at any time, Xxxxx Fargo Bank, N.A., as Master Servicer, resigns
under this Section 9.09, or is removed as Master Servicer pursuant to Section
9.04, then at such time Xxxxx Fargo Bank, N.A. shall also resign (and shall be
entitled to resign) as Securities Administrator under this Agreement.
Section 9.10 Assignment or Delegation of Duties by the Master
Servicer. Except as expressly provided herein, the Master Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Master Servicer; provided, however, that the Master Servicer
shall have the right with the prior written consent of the Depositor (which
shall not be unreasonably withheld or delayed), and upon delivery to the Trustee
and the Depositor of a letter from each Rating Agency to the effect that such
action shall not result in a downgrade of the ratings assigned to any of the
Certificates, to delegate or assign to or subcontract with or authorize or
appoint any qualified Person to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Master Servicer hereunder.
Notice of such permitted assignment shall be given promptly by the Master
Servicer to the Depositor and the Trustee. If, pursuant to any provision hereof,
the duties of the Master Servicer are transferred to a successor master
servicer, the entire compensation payable to the Master Servicer pursuant hereto
shall thereafter be payable to such successor master servicer but in no event
shall the fee payable to the successor master servicer exceed that payable to
the predecessor master servicer.
Section 9.11 Limitation on Liability of the Master Servicer. Neither
the Master Servicer nor any of the directors, officers, employees or agents of
the Master Servicer shall be under any liability to the Trustee, the Securities
Administrator, the Servicer or the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Master Servicer or any such person against any liability
that would otherwise be imposed by reason of willful malfeasance, bad faith or
negligence in the performance of its duties or by reason of reckless disregard
for its obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Master Servicer shall be under no
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties as Master Servicer with respect to the Mortgage Loans
under this Agreement and that in its opinion may involve it in any expenses or
liability; provided, however, that the Master Servicer may in its sole
discretion undertake any such action that it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom, shall
be liabilities of the Trust, and the Master Servicer shall be entitled to be
reimbursed therefor out of the Distribution Account in accordance with the
provisions of Section 9.07 and Section 9.12.
The Master Servicer shall not be liable for any acts or omissions of
the Servicer except to the extent that damages or expenses are incurred as a
result of such act or omissions and such damages and expenses would not have
been incurred but for the negligence, willful malfeasance, bad faith or
recklessness of the Master Servicer in supervising, monitoring and overseeing
the performance of the obligations of the Servicer as required under this
Agreement.
Section 9.12 Indemnification; Third Party Claims. The Master
Servicer agrees to indemnify the Servicer, Depositor, the Sponsor, the
Securities Administrator, the Responsible Party, the Trustee and the Trust, and
hold them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses that the Servicer, Depositor, the Sponsor, the
Securities Administrator, the Responsible Party, the Trustee or the Trust may
sustain as a result of the Master Servicer's willful malfeasance, bad faith or
negligence in the performance of its duties hereunder or by reason of its
reckless disregard for its obligations and duties under this Agreement,
including any failure by the Master Servicer or any Subcontractor utilized by
such Master Servicer to deliver any information, report, certification or
accountants' letter when and as required under Sections 3.22, 3.23 or 8.12,
including without limitation any failure by the Master Servicer to identify any
Subcontractor "participating in the servicing function" within the meaning of
Item 1122 of Regulation AB. The Depositor, the Sponsor, the Securities
Administrator, the Servicer, the Responsible Party and the Trustee shall
immediately notify the Master Servicer if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans which would entitle the
Depositor, the Securities Administrator, the Servicer, the Responsible Party,
the Trustee or the Trust to indemnification under this Section 9.12, whereupon
the Master Servicer shall assume the defense of any such claim and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim.
The Master Servicer agrees to indemnify and hold harmless the
Trustee from and against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses (including reasonable attorneys' fees) that the
Trustee may sustain as a result of such liability or obligations of the Master
Servicer and in connection with the Trustee's assumption as successor master
servicer (not including the Trustee's performance, except to the extent that
costs or liability of the Trustee are created or increased as a result of
negligent or wrongful acts or omissions of the Master Servicer prior to its
replacement as Master Servicer) of the Master Servicer's obligations, duties or
responsibilities under this Agreement.
The Trust will indemnify the Master Servicer and hold it harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, liabilities, fees and
expenses that the Master Servicer may incur or sustain in connection with,
arising out of or related to this Agreement or the Certificates, except to the
extent that any such loss, liability or expense is related to (i) a material
breach of the Master Servicer's representations and warranties in this
Agreement, (ii) resulting from any breach of the applicable 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,
(iii) resulting from any breach of the Responsible Party's obligations in
connection with the Purchase Agreement, for which the Responsible Party has
performed its obligation to indemnify the Master Servicer pursuant to the
Purchase Agreement, or (iv) the Master Servicer's willful malfeasance, bad faith
or negligence or by reason of its reckless disregard of its duties and
obligations under this Agreement; provided that any such loss, liability or
expense constitutes an "unanticipated expense incurred by the REMIC" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii). The Master Servicer
shall be entitled to reimbursement for any such indemnified amount from funds on
deposit in the Distribution Account.
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of Securities Administrator. The Securities
Administrator shall undertake to perform such duties and only such duties as are
specifically set forth in this Agreement.
The Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Securities Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they are in the form required by this
Agreement; provided, however, that the Securities Administrator shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Securities Administrator shall notify the
Certificateholders of such non conforming instrument in the event the Securities
Administrator, after so requesting, does not receive a satisfactorily corrected
instrument.
No provision of this Agreement shall be construed to relieve the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Securities Administrator shall
be determined solely by the express provisions of this Agreement, the
Securities Administrator shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this
Agreement against the Securities Administrator and the Securities
Administrator may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Securities Administrator and conforming to
the requirements of this Agreement which it believed in good faith to be
genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(ii) the Securities Administrator shall not be liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Securities Administrator, unless it shall be conclusively
determined by a court of competent jurisdiction, such determination no
longer subject to appeal, that the Securities Administrator was negligent
in ascertaining the pertinent facts;
(iii) the Securities Administrator shall not be liable with respect
to any action or inaction taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Holders of Certificates
evidencing not less than 25% of the Voting Rights of Certificates relating
to the time, method and place of conducting any proceeding for any remedy
available to the Securities Administrator, or exercising or omitting to
exercise any trust or power conferred upon the Securities Administrator
under this Agreement; and
(iv) the Securities Administrator shall not be accountable, shall
have no liability and makes no representation as to any acts or omissions
hereunder of the Servicer or the Trustee.
The Securities Administrator shall be permitted to utilize one or
more Subcontractors for the performance of certain of its obligations under this
Agreement, provided that the Securities Administrator complies with Section
3.02(e) as if the Securities Administrator were a "Servicer" pursuant to that
Section. The Securities Administrator 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 Securities Administrator to perform any
of its obligations under Section 3.22 or Section 3.23, including without
limitation any failure by the Securities Administrator 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 Securities Administrator.
Section 10.02 Certain Matters Affecting the Securities
Administrator. Except as otherwise provided in Section 10.01:
(i) the Securities Administrator may request and conclusively rely
upon and shall be fully protected in acting or refraining from acting upon
any resolution, Officer's Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties and the Securities Administrator shall have no
responsibility to ascertain or confirm the genuineness of any signature of
any such party or parties;
(ii) the Securities Administrator may consult with counsel,
financial advisers or accountants and the advice of any such counsel,
financial advisers or accountants and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the Securities Administrator shall not be liable for any
action or inaction taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(iv) the Securities Administrator shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that if the payment within a reasonable
time to the Securities Administrator of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Securities Administrator, not reasonably assured to the
Securities Administrator by the security afforded to it by the terms of
this Agreement, the Securities Administrator may require reasonable
indemnity against such expense or liability as a condition to so
proceeding. Nothing in this clause (iv) shall derogate from the obligation
of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors, provided that the
Master Servicer shall have no liability for disclosure required by this
Agreement;
(v) the Securities Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian and the Securities
Administrator shall not be responsible for any misconduct or negligence on
the part of any such agent, attorney or custodian appointed by the
Securities Administrator with due care;
(vi) the Securities Administrator shall not be required to risk or
expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights
or powers hereunder if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not assured to it, and none of the provisions contained in
this Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Servicer under this Agreement;
(vii) the Securities Administrator shall be under no obligation to
exercise any of the trusts, rights or powers vested in it by this
Agreement or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Securities Administrator
reasonable security or indemnity satisfactory to the Securities
Administrator against the costs, expenses and liabilities which may be
incurred therein or thereby; and
(viii) the Securities Administrator shall have no obligation to
appear in, prosecute or defend any legal action that is not incidental to
its duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Securities Administrator
may in its discretion undertake any such action that it may deem necessary
or desirable in respect of this Agreement and the rights and duties of the
parties hereto and the interests of the Trustee and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and
any liability resulting therefrom shall be expenses, costs and liabilities
of the Trust Fund, and the Securities Administrator shall be entitled to
be reimbursed therefor out of the Collection Account.
The Securities Administrator shall have no duty (A) to see to any
recording, filing, or depositing of this Agreement or any agreement referred to
herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing thereof, (B) to
see to the provision of any insurance or (C) to see to the payment or discharge
of any tax, assessment, or other governmental charge or any lien or encumbrance
of any kind owing with respect to, assessed or levied against, any part of the
Trust Fund other than from funds available in the Distribution Account.
Section 10.03 Securities Administrator Not Liable for Certificates
or Mortgage Loans. The recitals contained herein and in the Certificates shall
be taken as the statements of the Depositor or the Sponsor, as the case may be,
and the Securities Administrator assumes no responsibility for their
correctness. The Securities Administrator makes no representations as to the
validity or sufficiency of this Agreement, the Interest Rate Swap Agreement or
of the Certificates or of any Mortgage Loan or related document other than with
respect to the Securities Administrator's execution and authentication of the
Certificates. The Securities Administrator shall not be accountable for the use
or application by the Depositor or the 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 Securities Administrator shall execute the Interest Rate Swap
Agreement and the Certificates not in its individual capacity but solely as
Securities Administrator 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
Securities Administrator on behalf of the Trust Fund in the Interest Rate Swap
Agreement and the Certificates is made and intended not as a personal
undertaking or agreement by the Securities Administrator but is made and
intended for the purpose of binding only the Trust Fund.
Section 10.04 Securities Administrator May Own Certificates. The
Securities Administrator in its individual or any other capacity may become the
owner or pledgee of Certificates and may transact business with the parties
hereto and their Affiliates with the same rights as it would have if it were not
the Securities Administrator.
Section 10.05 Securities Administrator's Fees and Expenses. The
Securities Administrator shall be entitled to the investment income earned on
amounts in the Distribution Account during the Securities Administrator Float
Period. The Securities Administrator and any director, officer, employee, agent
or "control person" within the meaning of the Securities Act of 1933, as
amended, and the Securities Exchange of 1934, as amended ("Control Person"), of
the Securities Administrator shall be indemnified by the Trust and held harmless
against any loss, liability or expense (including reasonable attorney's fees)
(i) incurred in connection with any claim or legal action relating to (a) this
Agreement or the Interest Rate Swap Agreement, (b) the Mortgage Loans or (c) the
Certificates, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Securities Administrator's duties hereunder, (ii) incurred in connection with
the performance of any of the Securities Administrator's duties hereunder or
under such other agreements, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance of
any of the Securities Administrator's duties hereunder or (iii) incurred by
reason of any action of the Securities Administrator taken at the direction of
the Certificateholders, provided that any such loss, liability or expense
constitutes an "unanticipated expense incurred by the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii). Such indemnity shall survive
the termination of this Agreement or the resignation or removal of the
Securities Administrator hereunder. Without limiting the foregoing, and except
for any such expense, disbursement or advance as may arise from the Securities
Administrator's negligence, bad faith or willful misconduct, or which would not
be an "unanticipated expense" within the meaning of the second preceding
sentence, the Securities Administrator shall be reimbursed by the Trust for all
reasonable expenses, disbursements and advances incurred or made by the
Securities Administrator in accordance with any of the provisions of this
Agreement with respect to: (A) the reasonable compensation and the expenses and
disbursements of its counsel not associated with the closing of the issuance of
the Certificates and (B) the reasonable compensation, expenses and disbursements
of any accountant, engineer, appraiser or other agent that is not regularly
employed by the Securities Administrator, to the extent that the Securities
Administrator must engage such Persons to perform acts or services hereunder.
The Trust shall fulfill its obligations under this paragraph from amounts on
deposit from time to time in the Distribution Account. The Securities
Administrator shall be required to pay all expenses incurred by it in connection
with its activities hereunder and shall not be entitled to reimbursement
therefor except as provided in this Agreement.
Section 10.06 Eligibility Requirements for Securities Administrator.
The Securities Administrator hereunder shall at all times be a corporation or
association organized and doing business under the laws the United States of
America or any state thereof, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and with a
credit rating of at least investment grade. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 10.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Securities Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.06, the Securities
Administrator shall resign immediately in the manner and with the effect
specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the Depositor
and its affiliates or the Trustee and its affiliates.
Any successor Securities Administrator (i) may not be an originator,
the Servicer, the Depositor or an affiliate of the Depositor unless the
Securities Administrator functions are operated through an institutional trust
department of the Securities Administrator, (ii) must be authorized to exercise
corporate trust powers under the laws of its jurisdiction of organization, and
(iii) must be rated at least "A/F1" by Fitch, if Fitch is a Rating Agency and
rates such successor, or the equivalent rating by Standard & Poor's or Xxxxx'x.
If no successor Securities Administrator shall have been appointed and shall
have accepted appointment within 60 days after the Securities Administrator
ceases to be the Securities Administrator pursuant to Section 10.07, then the
Trustee may (but shall not be obligated to) become the successor Securities
Administrator. The Depositor shall appoint a successor to the Securities
Administrator in accordance with Section 10.07. The Trustee shall notify the
Rating Agencies of any change of Securities Administrator.
Section 10.07 Resignation and Removal of Securities Administrator.
The Securities Administrator may at any time resign by giving written notice of
resignation to the Depositor and the Trustee and each Rating Agency not less
than 60 days before the date specified in such notice when, subject to Section
10.08, such resignation is to take effect, and acceptance by a successor
Securities Administrator in accordance with Section 10.08 meeting the
qualifications set forth in Section 10.06. If no successor Securities
Administrator meeting such qualifications shall have been so appointed by the
Depositor and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Securities Administrator may petition any
court of competent jurisdiction for the appointment of a successor Securities
Administrator.
If at any time the Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 10.06 hereof and shall
fail to resign after written request thereto by the Depositor, or if at any time
the Securities Administrator shall become incapable of acting, or shall be
adjudged as bankrupt or insolvent, or a receiver of the Securities Administrator
or of its property shall be appointed, or any public officer shall take charge
or control of the Securities Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or a tax is imposed with
respect to the Trust Fund by any state in which the Securities Administrator or
the Trust Fund is located and the imposition of such tax would be avoided by the
appointment of a different Securities Administrator, then the Depositor may
remove the Securities Administrator and appoint a successor Securities
Administrator by written instrument, in triplicate, one copy of which instrument
shall be delivered to the Securities Administrator so removed, one copy of which
shall be delivered to the Master Servicer and one copy to the successor
Securities Administrator.
The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Securities Administrator and appoint a
successor Securities Administrator by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys in fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor Securities Administrator.
Any resignation or removal of the Securities Administrator and
appointment of a successor Securities Administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance by the
successor Securities Administrator of appointment as provided in Section 10.08
hereof.
Notwithstanding the foregoing, if at any time the Securities
Administrator resigns pursuant to Section 10.07, the Trustee shall be authorized
to appoint, with the Depositor's consent, a successor Securities Administrator
concurrently with the appointment of a successor Master Servicer.
Section 10.08 Successor Securities Administrator. Any successor
Securities Administrator (which may be the Trustee) appointed as provided in
Section 10.07 hereof shall execute, acknowledge and deliver to the Depositor and
to its predecessor, the Securities Administrator and the Trustee an instrument
accepting such appointment hereunder and thereupon the resignation or removal of
the predecessor Securities Administrator shall become effective and such
successor Securities Administrator, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with the like effect as if originally named as
Securities Administrator herein. The Depositor, the Trustee, the Master Servicer
and the predecessor Securities Administrator shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Securities
Administrator all such rights, powers, duties, and obligations.
No successor Securities Administrator shall accept appointment as
provided in this Section 10.08 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 10.06 hereof and its appointment shall not adversely affect the then
current rating of the Certificates, as confirmed in writing by each Rating
Agency.
Upon acceptance by a successor Securities Administrator of
appointment as provided in this Section 10.08, the Depositor shall mail notice
of the succession of such Securities Administrator hereunder to all Holders of
Certificates. If the Depositor fails to mail such notice within 10 days after
acceptance by the successor Securities Administrator of appointment, the
successor Securities Administrator shall cause such notice to be mailed at the
expense of the Depositor.
Section 10.09 Merger or Consolidation of Securities Administrator.
Any corporation or other entity into which the Securities Administrator may be
merged or converted or with which it may be consolidated or any corporation or
other entity resulting from any merger, conversion or consolidation to which the
Securities Administrator shall be a party, or any corporation or other entity
succeeding to the business of the Securities Administrator, shall be the
successor of the Securities Administrator hereunder, provided that such
corporation or other entity shall be eligible under the provisions of Section
10.06 hereof, without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator. Except as expressly provided herein, the Securities Administrator
shall not assign or transfer any of its rights, benefits or privileges hereunder
to any other Person, or delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by the Securities Administrator; provided, however, that the
Securities Administrator shall have the right with the prior written consent of
the Depositor (which shall not be unreasonably withheld or delayed), and upon
delivery to the Trustee and the Depositor of a letter from each Rating Agency to
the effect that such action shall not result in a downgrade of the ratings
assigned to any of the Certificates, to delegate or assign to or subcontract
with or authorize or appoint any qualified Person to perform and carry out any
duties, covenants or obligations to be performed and carried out by the
Securities Administrator hereunder. Notice of such permitted assignment shall be
given promptly by the Securities Administrator to the Depositor and the Trustee.
If, pursuant to any provision hereof, the duties of the Securities Administrator
are transferred to a successor securities administrator, the entire compensation
payable to the Securities Administrator pursuant hereto shall thereafter be
payable to such successor securities administrator but in no event shall the fee
payable to the successor securities administrator exceed that payable to the
predecessor securities administrator.
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 11.02 and Section 11.03, the obligations and
responsibilities of the Depositor, the Master Servicer, the Servicer, the
Securities Administrator and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) the purchase by the Servicer
(at the direction of the Majority Class C Certificateholder), on the Optional
Termination Date, of all Mortgage Loans (and REO Properties) at the price equal
to the sum of (i) 100% of the unpaid principal balance of each Mortgage Loan
(other than in respect of REO Property) plus accrued and unpaid interest thereon
at the applicable Mortgage Interest Rate, (ii) the lesser of (x) the appraised
value of any REO Property as determined by the higher of two appraisals
completed by two independent appraisers selected by 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 (to the extent not paid as
a Replacement Swap Provider Payment) other than a Defaulted Swap Termination
Payment owed to the Swap Provider (as provided to the Securities Administrator
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 11.02 Final Distribution on the Certificates. If on any
Remittance Date, the Servicer notifies the Securities Administrator that there
are no Outstanding Mortgage Loans and no other funds or assets in the Trust Fund
other than the funds in the Collection Account, the Servicer shall direct the
Securities Administrator 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) or the Servicer, individually, elects to
terminate the Trust Fund pursuant to clause (a) of Section 11.01, 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 Master
Servicer, the Servicer, the Trustee and the Securities Administrator in writing
as 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 Securities
Administrator by letter to Certificateholders mailed not later than the 15th day
of the month of such final distribution. Any such Notice of Final Distribution
shall specify (a) the Distribution Date upon which final distribution on the
Certificates will be made upon presentation and surrender of Certificates at the
office therein designated, (b) the amount of such final distribution, (c) the
location of the office or agency at which such presentation and surrender must
be made, and (d) that the Record Date otherwise applicable to such Distribution
Date is not applicable, distributions being made only upon presentation and
surrender of the Certificates at the office therein specified. The Securities
Administrator will give such Notice of Final Distribution to each Rating Agency
at the time such Notice of Final Distribution is given to Certificateholders.
In the event 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
Collection Account. During the time such funds are held in the Collection
Account, such funds shall be invested, at the direction of the Majority Class 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 the event such Notice
of Final Distribution is given and the Person electing to terminate the Trust
Fund is the Servicer, the Servicer shall deposit the Termination Price in the
Collection Account at least two Business Days prior to the applicable
Distribution Date. During the time such funds are held in the Collection
Account, such funds may be invested by the Servicer in accordance with Section
3.12. In connection with any such termination of the Trust Fund, the Servicer
shall cause all funds in the Collection Account, including the applicable
Termination Price for the Mortgage Loans and REO Properties, to be remitted to
the Master Servicer 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 (certifying as to such deposit), 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 Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class (after reimbursement of all amounts due to the Servicer (including all
unreimbursed Advances and any Servicing Fees accrued and unpaid as of the date
the Termination Price is paid), the Depositor, the Master Servicer, the
Securities Administrator 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 Securities Administrator
shall give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. If within six months after the second notice all the
applicable Certificates shall not have been surrendered for cancellation, the
Securities Administrator may take appropriate steps, or may appoint an agent to
take appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain a part of the Trust Fund. If within one year
after the second notice all Certificates shall not have been surrendered for
cancellation, the Residual Certificateholders shall be entitled to all unclaimed
funds and other assets of the Trust Fund which remain subject hereto.
Section 11.03 Additional Termination Requirements. In the event a
Person elects to terminate the Trust Fund as provided in Section 11.01, 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 11.03 will not (i) result in the
imposition of taxes on "prohibited transactions" on any Trust REMIC as defined
in Section 860F of the Code, or (ii) cause any Trust REMIC to fail to qualify as
a REMIC at any time that any Certificates are Outstanding:
(a) The Securities Administrator 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 Securities Administrator shall attach a statement to the
final federal income tax return for each of the Trust REMICs stating that
pursuant to Treasury Regulations Section 1.860F 1, the first day of the 90 day
liquidation period for each such Trust REMIC was the date on which the
Securities Administrator sold the assets of the Trust Fund to the electing
Person.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Responsible Party, the Securities Administrator, the
Master Servicer, 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, the Securities Administrator, the Master Servicer 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 Servicer, Securities Administrator, the Trustee
or the Trust Fund), adversely affect in any material respect the interests of
any Certificateholder; provided, further, that the amendment shall be deemed not
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 by any such Rating Agency as to the
materiality of any such amendment and will represent a determination only as to
the credit issues affecting any such rating. The Responsible Party, the Trustee,
the Securities Administrator, the Master Servicer, 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 Securities Administrator, the Master Servicer, the Servicer, the
Responsible Party 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.
The Responsible Party shall be obligated to execute any amendment to
this Agreement, unless such amendment would adversely affect in any material
respect a right or obligation of the Responsible Party.
Notwithstanding the foregoing provisions of this Section 12.01, 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 or by the Responsible Party or any of its Affiliates
shall be deemed not to be Outstanding (and shall not be considered when
determining the percentage of Certificateholders consenting or when calculating
the total number of Certificates entitled to consent) for purposes of
determining if the requisite consents of Certificateholders under this Section
12.01 have been obtained.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Securities Administrator shall
furnish written notification of the substance or a copy of such amendment to
each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Securities Administrator may prescribe.
Nothing in this Agreement shall require the Trustee, the Master
Servicer, or the Securities Administrator to enter into an amendment which
modifies its obligations or liabilities without its consent and in all cases
without receiving an Opinion of Counsel (which Opinion shall not be an expense
of the Master Servicer, the Securities Administrator, the Trustee or the Trust
Fund), satisfactory to the Securities Administrator, the Master Servicer and 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 12.01.
Section 12.02 Recordation of Agreement; Counterparts. This Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Depositor 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 12.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.04 Intention of Parties. It is the express intent of the
parties hereto that the conveyance (i) of the Mortgage Loans by the Depositor
and (ii) of the Trust Fund by the Depositor to the Trustee each be, and be
construed as, an absolute sale thereof. It is, further, not the intention of the
parties that such conveyances be deemed a pledge thereof. However, in the event
that, notwithstanding the intent of the parties, such assets are held to be the
property of the Depositor, 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 12.05 Notices. (a) The Securities Administrator shall
promptly provide notice to each Rating Agency with respect to each of the
following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Servicer, the Securities
Administrator, the Master 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 Securities Administrator 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
Trustee, to the Corporate Trust Office, Deutsche Bank National Trust Company,
0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention: Trust
Administration - GS06F3 or such other address as may be hereafter furnished to
the other parties hereto by the Trustee in writing; (c) in the case of Fremont
Investment & Loan, 0000 Xxxxx XxxxxxXxxxxx, Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxx Xxxx or such other address as may be hereafter furnished to the
Depositor and Trustee by the Servicer and Responsible Party in writing; (d) in
the case of Xxxxx Fargo, Xxxxx Fargo Bank, N.A., (i) for the purpose of
certificate transfers, Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 and (ii) for all other purposes, 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, or such other addresses as may be hereafter
furnished to the Swap Provider and the other parties hereto in writing; (e)
Xxxxxxx Sachs Mitsui Marine Derivative Products 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: General Counsel, or such other address as may be
hereafter furnished to the other parties hereto in writing and (f) in the case
of each of the Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency. Notices to Certificateholders
shall be deemed given when mailed, first class postage prepaid, to their
respective addresses appearing in the Certificate Register.
Section 12.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 12.07 Assignment; Sales; Advance Facilities.
(a) Notwithstanding anything to the contrary contained herein,
except as provided in Section 6.04, this Agreement may be assigned by the
Servicer with the prior written consent of the Depositor, the Master Servicer
and 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 Master Servicer shall have no oversight obligations with respect to
such Advance Facility and the Servicer shall remain obligated pursuant to this
Agreement to make P&I Advances and Servicing Advances pursuant to and as
required by this Agreement, and shall not be relieved of such obligations by
virtue of such Advance Facility.
(b) Advance reimbursement amounts ("Advance Reimbursement Amounts")
shall consist solely of amounts in respect of P&I Advances and/or Servicing
Advances made with respect to the Mortgage Loans for which the Servicer would be
permitted to reimburse itself in accordance with this Agreement, assuming the
Servicer had made the related P&I Advance(s) and/or Servicing Advance(s).
(c) The Servicer shall maintain and provide to any successor
Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced
by, pledged or assigned to, and reimbursed to any Advancing Person. The
successor Servicer shall be entitled to rely on any such information provided by
the predecessor Servicer, and the successor Servicer shall not be liable for any
errors in such information.
(d) An Advancing Person who purchases or receives an assignment or
pledge of the rights to be reimbursed for P&I Advances and/or Servicing
Advances, and/or whose obligations hereunder are limited to the funding of P&I
Advances and/or Servicing Advances shall not be required to meet the criteria
for qualification of a Subservicer set forth in this Agreement.
(e) Advance Reimbursement Amounts distributed with respect to each
Mortgage Loan shall be allocated to outstanding xxxxxxxxxxxx X&X Advances or
Servicing Advances (as the case may be) made with respect to that Mortgage Loan
on a "first-in, first out" (FIFO) basis. Such documentation shall also require
the Servicer to provide to the related Advancing Person or its designee
loan-by-loan information with respect to each such Advance Reimbursement Amount
distributed to such Advancing Person or Advance Facility trustee on each
Distribution Date, to enable the Advancing Person or Advance Facility trustee to
make the FIFO allocation of each such Advance Reimbursement Amount with respect
to each Mortgage Loan. The Servicer shall remain entitled to be reimbursed by
the Advancing Person or Advance Facility trustee for all P&I Advances and
Servicing Advances funded by the Servicer to the extent the related rights to be
reimbursed therefor have not been sold, assigned or pledged to an Advancing
Person.
(f) Any amendment to this Section 12.07 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 12.07, including
amendments to add provisions relating to a successor Servicer, may be entered
into by the Trustee, the Depositor, the Master Servicer, the Servicer and the
Securities Administrator 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
delivers to the Trustee 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 12.08 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 12.08, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 12.09 Inspection and Audit Rights. The Servicer agrees that
on reasonable prior notice, it will permit any representative of the Depositor,
the Master Servicer 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, the Master Servicer 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, the Master
Servicer or the Trustee of any right under this Section 12.09 shall be borne by
the party making the request (except in the case of requests made by the
Trustee, such expenses 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 12.09 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 12.09 as a result of such obligation shall not
constitute a breach of this Section 12.09. Nothing in this Section 12.09 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 12.10 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
Securities Administrator pursuant to this Agreement, are and shall be deemed
fully paid.
Section 12.11 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 12.12 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 12.13 Rights of Third Parties. Each of the Swap Provider,
and each Person entitled to indemnification hereunder who is not a party hereto,
shall be deemed a third-party beneficiary of this Agreement to the same extent
as if it were a party hereto and shall have the right to enforce its rights
under this Agreement.
Section 12.14 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 on the Servicer's behalf, to personally, by telephone or mail,
solicit the borrower or obligor under any Mortgage Loan, including to refinance
a Mortgage Loan, in whole or in part. 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) are vested
in the Trustee pursuant hereto and the Servicer shall take no action to
undermine these rights and benefits. Notwithstanding the foregoing, it is
understood and agreed that (a) promotions undertaken by the Servicer or any
Affiliate of the Servicer which are directed to the general public at large,
including, without limitation, mass mailing based on commercially acquired
mailing lists, newspaper, radio, internet, company website, and television
advertisements and (b) solicitation of the Mortgagors under the Servicer's
existing programs and programs directed toward equivalent ends (which in no
event shall solicit the refinancing of mortgage loans from the Mortgagors),
shall, in each case, not constitute solicitation under this Section 12.14. It is
understood and agreed that responses to payoff inquiries by the Mortgagors shall
not constitute solicitation for purposes of this Section 12.14
Section 12.15 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 reasonable 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 Securities
Administrator, the Master Servicer, 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, the Securities
Administrator, the Master Servicer, the Responsible Party and the Servicer have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the day and year first above written.
GS MORTGAGE SECURITIES CORP.,
as Depositor
By: /s/ Xxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
FREMONT INVESTMENT & LOAN,
as Servicer and Responsible Party
By: /s/ Xxxx Xxxxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: SVP
XXXXX FARGO BANK, N.A.,
as Master Servicer and
Securities Administrator
By: /s/ Xxxxxxxx X.X. Xxxxx
--------------------------------------
Name: Xxxxxxxx X.X. Xxxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
By: /s Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
SCHEDULE I
Mortgage Loan Schedule
(Delivered to the Trustee and the Master Servicer
and not attached to the Pooling and Servicing Agreement)
SCHEDULE II
GSAMP Mortgage Loan Trust 2006-FM3,
Mortgage Pass-Through Certificates
Representations and Warranties of Fremont Investment & Loan, as Servicer
Fremont Investment & Loan (the "Servicer") hereby makes the
representations and warranties set forth in this Schedule II to the Depositor,
the Responsible Party, the Master Servicer, the Securities Administrator and the
Trustee, as of the Closing Date, or if so specified herein, as of the Cut-off
Date. Capitalized terms used but not otherwise defined in this Schedule II shall
have the meanings ascribed thereto in the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement") relating to the above-referenced Series.
(1) Due Organization and Authority. The Servicer is a corporation
duly organized, validly existing and in good standing under the laws of the
state of its incorporation and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good standing
in each state where a Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct business of the type
conducted by the Servicer, and in any event the Servicer is in compliance with
the laws of any such state to the extent necessary to ensure the enforceability
of the related Mortgage Loan in accordance with the terms of this Agreement; the
Servicer has the full 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 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 corporate action has been taken by the Servicer to
make this Agreement valid and binding upon the Servicer in accordance with its
terms;
(2) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Servicer;
(3) No Conflicts. Neither the execution and delivery of this
Agreement, nor the fulfillment of or compliance with the terms and conditions of
this Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Servicer's charter 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 an acceleration
under any of the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Servicer or its property is
subject, or impair the ability of the Sponsor to realize on the Mortgage Loans,
or impair the value of the Mortgage Loans;
(4) Ability to Service. The Servicer is a seller/servicer of
residential mortgage loans, with the facilities, procedures, and experienced
personnel necessary for the sound servicing of mortgage loans of the same type
as the Mortgage Loans;
(5) 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;
(6) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to the best of the Seller's knowledge, threatened
against the Servicer which, either in any one instance or in the aggregate, may
result in any material adverse change in the business, operations, financial
condition, properties or assets of the Servicer, or in any material impairment
of the right or ability of the Servicer to carry on its business substantially
as now conducted, or in any material liability on the part of the Servicer, or
which would draw into question the validity of this Agreement or the Mortgage
Loans or of any action taken or to be taken in connection with the obligations
of the Servicer contemplated herein, or which would be likely to impair
materially the ability of the Servicer to perform under the terms of this
Agreement;
(7) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by the Servicer of or compliance by the Servicer with
this Agreement or the Servicing of the Mortgage Loans as evidenced by the
consummation of the transactions contemplated by this Agreement, or if required,
such approval has been obtained prior to the related Closing Date;
(8) 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.
(9) Prior Servicing. Prior to the date hereof, each Mortgage Loan
has been serviced in all material respects in strict compliance with Accepted
Servicing Practices and the Servicer has reported the Mortgagor credit files to
each of the three credit repositories on a monthly basis in a timely manner.
SCHEDULE III
GSAMP Mortgage Loan Trust 2006-FM3,
Mortgage Pass-Through Certificates
Representations and Warranties of the Responsible Party as to the Individual
Mortgage Loans
The Responsible Party hereby makes the representations and
warranties set forth in this Schedule III as to the individual Mortgage Loans
only to the Depositor, the Securities Administrator, the Master Servicer and the
Trustee as of December 21, 2006 (the "Securitization Closing Date") (unless
otherwise expressly indicated). Capitalized terms used but not otherwise defined
in this Schedule III shall have the meanings ascribed thereto in the Purchase
Agreement.
(a) Mortgage Loans as Described. The information set forth in the
related Mortgage Loan Schedule is complete, true and correct;
(b) Payments Current. Except as set forth on Schedule III-A, all
payments required to be made up to the related Closing Date for the Mortgage
Loan under the terms of the Mortgage Note, other than payments not yet one month
delinquent, have been made and credited. No payment required under the Mortgage
Loan is one month or more delinquent nor has any payment under the Mortgage Loan
been one month or more delinquent at any time since the origination of the
Mortgage Loan;
(c) No Outstanding Charges. Except as set forth on Schedule III-A,
except for payment defaults of less than one month, there are no defaults in
complying with the terms of the Mortgage, and all taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents which previously became due and owing have been paid,
or an escrow of funds has been established in an amount sufficient to pay for
every such item which remains unpaid and which has been assessed but is not yet
due and payable. The Responsible Party has not advanced funds, or induced,
solicited or knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount required under
the Mortgage Loan, except for interest accruing from the date of the Mortgage
Note or date of disbursement of the Mortgage Loan proceeds, whichever is
earlier, to the date which precedes by one (1) month the Due Date of the first
installment of principal and interest;
(d) Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any respect,
from the date of origination except by a written instrument which has been
recorded, if necessary to protect the interests of the Sponsor, and which has
been delivered to the Trustee or to such other Person as the Sponsor shall
designate in writing, and the terms of which are reflected in the related
Mortgage Loan Schedule. No Mortgage Loan has been modified so as to restructure
the payment obligations or re-age the Mortgage Loan. The substance of any such
waiver, alteration or modification has been approved by the title insurer, if
any, to the extent required by the policy, and its terms are reflected on the
related Mortgage Loan Schedule, if applicable. No Mortgagor has been released,
in whole or in part, except in connection with an assumption agreement, approved
by the issuer of the title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage Loan File delivered to the
Trustee or to such other Person as the Sponsor shall designate in writing and
the terms of which are reflected in the related Mortgage Loan Schedule;
(e) No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and no Mortgagor
was a debtor in any state or federal bankruptcy or insolvency proceeding at, or
subsequent to, the time the Mortgage Loan was originated;
(f) Hazard Insurance. Pursuant to the terms of the Mortgage, all
buildings or other improvements upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage,
as well as all additional requirements set forth in Section 3.13 of the Pooling
and Servicing Agreement. If required by the National Flood Insurance Act of
1968, as amended, each Mortgage Loan is covered by a flood insurance policy
meeting the requirements of the current guidelines of the Federal Insurance
Administration as in effect, as well as all additional requirements set forth in
Section 3.13 of the Pooling and Servicing Agreement. All individual insurance
policies contain a standard mortgagee clause naming the Responsible Party and
its successors and assigns as mortgagee, and all premiums thereon have been paid
and such policies may not be reduced, terminated or cancelled without 30 days'
prior written notice to the mortgagee. The Mortgage obligates the Mortgagor
thereunder to maintain the hazard insurance policy at the Mortgagor's cost and
expense, and on the Mortgagor's failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such Mortgagor's cost and
expense, and to seek reimbursement therefor from the Mortgagor. Where required
by state law or regulation, the Mortgagor has been given an opportunity to
choose the carrier of the required hazard insurance, provided the policy is not
a "master" or "blanket" hazard insurance policy covering a condominium, or any
hazard insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and binding obligation of
the insurer, is in full force and effect, and will be in full force and effect
and inure to the benefit of the Sponsor upon the consummation of the
transactions contemplated by this Agreement. The Responsible Party has not
engaged in, and has no knowledge of the Mortgagor's or any servicer's having
engaged in, any act or omission which would impair the coverage of any such
policy, the benefits of the endorsement provided for herein, or the validity and
binding effect of such policy, including, without limitation, no unlawful fee,
commission, kickback or other unlawful compensation or value of any kind has
been or will be received, retained or realized by any attorney, firm or other
person or entity, and no such unlawful items have been received, retained or
realized by the Responsible Party;
(g) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
predatory, abusive and fair lending laws, equal credit opportunity and
disclosure laws or unfair and deceptive practices laws applicable to the
Mortgage Loan including, without limitation, any provisions relating to
prepayment penalties, have been complied with, the consummation of the
transactions contemplated hereby will not involve the violation of any such laws
or regulations, and the Responsible Party shall maintain in its possession,
available for the Sponsor's inspection, and shall deliver to the Sponsor upon
demand, evidence of compliance with all such requirements. This representation
and warranty is a Deemed Material Breach Representation;
(h) No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission. The Responsible Party 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 Responsible Party waived any default resulting from any action or
inaction by the Mortgagor;
(i) Location and Type of Mortgaged Property. The Mortgaged Property
is located in the state identified in the related Mortgage Loan Schedule and
consists of real property with a detached single family residence erected
thereon, or a two- to four-family dwelling, or an individual condominium unit in
a low-rise condominium project, or an individual unit in a planned unit
development or a de minimis planned unit development which is in each case four
stories or less, provided, however, that any mobile home (double wide only) or
manufactured dwelling shall conform with the applicable Xxxxxx 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, a
log home or a mobile home erected thereon or by a mixed-use property, a property
in excess of 10 acres, or other unique property types. As of the date of
origination, no portion of the Mortgaged Property was used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes; provided, that Mortgaged
Properties which contain a home office shall not be considered as being used for
commercial purposes as long as the Mortgaged Property has not been altered for
commercial purposes and is not storing any chemicals or raw materials other than
those commonly used for homeowner repair, maintenance and/or household purposes.
With respect to any Mortgage Loan secured by a Mortgaged Property improved by
manufactured housing, (i) the related manufactured housing unit is permanently
affixed to the land, (ii) the related manufactured housing unit and the related
land are subject to a Mortgage properly filed in the appropriate public
recording office and naming the Responsible Party as mortgagee, (iii) the
related Mortgaged Property is not located in the state of New Jersey and (iv) as
of the origination date of the related Mortgage Loan, the related manufactured
housing unit that secures such Mortgage Loan either: (x) was the principal
residence of the Mortgagor or (y) was classified as real property under
applicable state law. This representation and warranty is a Deemed Material
Breach Representation;
(j) Valid First or Second Lien. Each Mortgage is a valid and
subsisting first or second lien (as applicable) of record on a single parcel of
real estate constituting the Mortgaged Property, including all buildings and
improvements on the Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems located in or annexed
to such buildings, and all additions, alterations and replacements made at any
time, with respect to the related Mortgage Loan, which exceptions are generally
acceptable to prudent mortgage lending companies, and such other exceptions to
which similar properties are commonly subject and which do not individually, or
in the aggregate, materially and adversely affect the benefits of the security
intended to be provided by such Mortgage. The lien of the Mortgage is subject
only to:
(1) the lien of current real property taxes and assessments
not yet due and payable;
(2) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to prudent mortgage lending institutions
generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan
and (a) specifically referred to or otherwise considered in the
appraisal made for the originator of the Mortgage Loan or (b) which
do not adversely affect the Appraised Value of the Mortgaged
Property set forth in such appraisal; and
(3) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property;
and
(4) with respect to each Second Lien Mortgage a prior mortgage
lien on the Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected (A) first lien and first priority security
interest with respect to each First Lien Mortgage Loan, or (B) second lien and
second priority security interest with respect to each Second Lien Mortgage
Loan, in either case, on the property described therein and the Responsible
Party has full right to sell and assign the same to Sponsor;
(k) Validity of Mortgage Documents. The Mortgage Note and the
Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its terms
(including, without limitation, any provisions therein relating to Prepayment
Penalties), except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws relating to or
affecting the rights of creditors generally, and by general equity principles
(regardless of whether such enforcement is considered a proceeding in equity or
a law). All parties to the Mortgage Note, the Mortgage and any other such
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note, the Mortgage and any such agreement, and
the Mortgage Note, the Mortgage and any other such related agreement have been
duly and properly executed by other such related parties. The documents,
instruments and agreements submitted for loan underwriting were not falsified
and contain no untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the information and
statements therein not misleading. No fraud, error, omission, misrepresentation,
gross negligence or similar occurrence with respect to a Mortgage Loan has taken
place on the part of any Person, including without limitation, the Mortgagor,
any appraiser, any builder or developer, or any other party involved in the
origination or servicing of the Mortgage Loan. The Responsible Party has
reviewed all of the documents constituting the Servicing File;
(l) Full Disbursement of Proceeds. The Mortgage Loan has been closed
and the proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. As of the Original Purchase Date the Responsible
Party is the sole owner of record and holder of the Mortgage Loan and the
indebtedness evidenced by each Mortgage Note and upon the sale of the Mortgage
Loans to the Sponsor, the Responsible Party retained the Mortgage Files or any
part thereof not delivered to the Trustee, the Sponsor or the Sponsor's
designee, in trust only for the purpose of servicing and supervising the
servicing of each Mortgage Loan. Prior to the Original Purchase Date the
Mortgage Loan was not assigned or pledged, and the Responsible Party has good,
indefeasible and marketable title thereto, and has full right to transfer and
sell the Mortgage Loan to the Sponsor free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest, and
has full right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan pursuant
to the Purchase Agreement and following the sale of each Mortgage Loan, the
Sponsor owned such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest. The
Responsible Party relinquished all rights to possess, control and monitor the
Mortgage Loan. After the related Closing Date, the Responsible Party will have
no right to modify or alter the terms of the sale of the Mortgage Loan and the
Responsible Party had no obligation or right to repurchase the Mortgage Loan or
substitute another Mortgage Loan, except as provided in the Purchase Agreement;
(n) Doing Business. Prior to the Original Purchase Date, all parties
which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, were (1) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property is located, and (2) either (i) organized under the laws of such state,
or (ii) qualified to do business in such state, or (iii) a federal savings and
loan association, a savings bank or a national bank having a principal office in
such state, or (3) not doing business in such state;
(o) LTV. No Mortgage Loan has an LTV greater than 100%;
(p) Title Insurance. The Mortgage Loan is covered by an ALTA
lender's title insurance policy, or with respect to any Mortgage Loan for which
the related Mortgaged Property is located in California a CLTA lender's title
insurance policy, and each such title insurance policy is issued by a title
insurer and qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring the Responsible Party, its successors and assigns,
as to the first or second priority lien, as applicable, of the Mortgage in the
original principal amount of the Mortgage Loan, subject only to the exceptions
contained in clauses (1), (2), (3) and (4) of paragraph (j) of this Schedule III
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 Responsible Party, its successor and
assigns, are the sole insureds of such lender's title insurance policy, and such
lender's title insurance policy is valid and remains in full force and effect
and will be in force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims are pending under such lender's title
insurance policy, and no prior holder of the related Mortgage, including the
Responsible Party, has done, by act or omission, anything which would impair the
coverage of such lender's title insurance policy, including without limitation,
no unlawful fee, commission, kickback or other unlawful compensation or value of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Responsible Party;
(q) No Defaults. Except as set forth on Schedule III-A, other than
payment delinquencies of less than one month, there is no default, breach,
violation or event which would permit acceleration existing under the Mortgage
or the Mortgage Note and no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a default,
breach, violation or event which would permit acceleration, and neither the
Responsible Party nor any of its affiliates nor any of their respective
predecessors, have waived any default, breach, violation or event which would
permit acceleration. With respect to each Second Lien Mortgage Loan, (i) the
prior mortgage is in full force and effect, (ii) there is no default, breach,
violation or event of acceleration existing under such prior mortgage or the
related mortgage note, (iii) no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration thereunder, and either (A)
the prior mortgage contains a provision which allows or (B) applicable law
requires, the mortgagee under the Second Lien Mortgage Loan to receive notice
of, and affords such mortgagee an opportunity to cure any default by payment in
full or otherwise under the prior mortgage;
(r) No Mechanics' Liens. There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights are
outstanding that under law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage;
(s) Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property, and no improvements on adjoining properties encroach upon
the Mortgaged Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
(t) Origination; Payment Terms. The Mortgage Loan was originated by
a mortgagee approved by the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act, savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or other similar institution which is supervised and examined by a federal or
state authority. The documents, instruments and agreements submitted for loan
underwriting were not falsified and contain no untrue statement of material fact
or omit to state a material fact required to be stated therein or necessary to
make the information and statements therein not misleading. No Mortgage Loan
contains terms or provisions which would result in negative amortization.
Principal payments on the Mortgage Loan commenced no more than sixty days after
funds were disbursed in connection with the Mortgage Loan. The Mortgage Interest
Rate as well as, in the case of Adjustable Rate Mortgage Loans, the Lifetime
Rate Cap and the Periodic Cap, are as set forth on the related Mortgage Loan
Schedule. Except with respect to interest-only mortgage loans set forth on the
related Mortgage Loan Schedule, the Mortgage Note is payable in equal monthly
installments of principal and interest, which installments of interest, with
respect to Adjustable Rate Mortgage Loans, are subject to change due to the
adjustments to the Mortgage Interest Rate on each Interest Rate Adjustment Date,
with interest calculated and payable in arrears, sufficient to amortize the
Mortgage Loan fully by the stated maturity date, over an original term of not
more than thirty years from commencement of amortization. There are no
Convertible Mortgage Loans which contain a provision allowing the Mortgagor to
convert the Mortgage Note from an adjustable interest rate Mortgage Note to a
fixed interest rate Mortgage Note. No Mortgage Loan is a simple interest
mortgage loan;
(u) Customary Provisions. The Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and
foreclosure on, or trustee's sale of, the Mortgaged Property pursuant to the
proper procedures, the holder of the Mortgage Loan will be able to deliver good
and merchantable title to the Mortgaged Property. There is no homestead or other
exemption available to a Mortgagor which would interfere with the right to sell
the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage, subject to applicable federal and state laws and judicial precedent
with respect to bankruptcy and right of redemption or similar law;
(v) Conformance with Underwriting Guidelines. The Mortgage Loan was
underwritten in accordance with the Underwriting Guidelines in effect as of the
date of origination of such Mortgage Loan. The Mortgage Note and Mortgage are on
forms generally acceptable to Xxxxxxx Mac or Xxxxxx Mae and the Responsible
Party 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 Original Purchase
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 Sponsor to
the trustee under the deed of trust, except in connection with a reconveyance of
the deed of trust or a trustee's sale after default by the Mortgagor;
(z) Delivery of Mortgage Documents. The Mortgage Note, the Mortgage,
the Assignment of Mortgage and any other documents required to be delivered
under the Custodial Agreement for each Mortgage Loan have been delivered to the
Trustee. The Responsible Party is in possession of a complete, true and accurate
Mortgage File in compliance with Schedule III-A hereto, except for such
documents the originals of which have been delivered to the Trustee;
(aa) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project is acceptable to Responsible Party and underwritten in accordance with
the Underwriting Guidelines;
(bb) Transfer of Mortgage Loans. The Assignment of Mortgage with
respect to each Non MERS 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 Responsible Party is not subject to the bulk transfer or
similar statutory provisions in effect in any applicable jurisdiction;
(cc) Due-On-Sale. The Mortgage contains an enforceable provision
(except as such enforcement may be effected by bankruptcy and insolvency laws or
by general principals of equity) for the acceleration of the payment of the
unpaid principal balance of the Mortgage Loan in the event that the Mortgaged
Property is sold or transferred without the prior written consent of the
mortgagee thereunder, and to the best of the Responsible Party's knowledge, such
provision is enforceable;
(dd) Assumability. None of the Mortgage Loans are, by their terms,
assumable;
(ee) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any separate
account established by the Responsible Party, the Mortgagor, or anyone on behalf
of the Mortgagor, or paid by any source other than the Mortgagor nor does it
contain any other similar provisions which may constitute a "buydown" provision.
The Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature;
(ff) Consolidation of Future Advances. Any future advances made to
the Mortgagor prior to the related Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first or second lien priority, as applicable, by a title
insurance policy, an endorsement to the policy insuring the mortgagee's
consolidated interest or by other title evidence. The consolidated principal
amount does not exceed the original principal amount of the Mortgage Loan;
(gg) Mortgaged Property Undamaged; No Condemnation Proceedings. As
of the Original Purchase Date, there is no proceeding pending or threatened for
the total or partial condemnation of the Mortgaged Property. As of the Original
Purchase Date, the Mortgaged Property is undamaged by waste, fire, earthquake or
earth movement, windstorm, flood, tornado, hurricane or other casualty so as to
affect adversely the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended and each Mortgaged
Property is inhabitable under applicable state and local laws;
(hh) Collection Practices; Escrow Deposits. The origination,
servicing and collection practices used by the Responsible Party with respect to
the Mortgage Loan have been in all respects in compliance with Accepted
Servicing Practices, applicable laws and regulations, and have been in all
respects legal and proper and prudent in the mortgage origination and servicing
business. With respect to escrow deposits and Escrow Payments (other than with
respect to Second Lien Mortgage Loans for which the mortgagee under the prior
mortgage lien is collecting Escrow Payments), all such payments are in the
possession of, or under the control of, the Responsible Party and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. All Escrow Payments have been collected in
full compliance with state and federal law and the provisions of the related
Mortgage Note and Mortgage. An escrow of funds is not prohibited by applicable
law and has been established in an amount sufficient to pay for every item that
remains unpaid and has been assessed but is not yet due and payable. No escrow
deposits or Escrow Payments or other charges or payments due the Responsible
Party 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 Responsible Party executed and delivered any
and all notices required under applicable law and the terms of the related
Mortgage Note and Mortgage regarding the Mortgage Interest Rate and the Monthly
Payment adjustments. Any interest required to be paid pursuant to state, federal
and local law has been properly paid and credited;
(ii) No Violation of Environmental Laws. To the best of the
Responsible Party's knowledge, the Mortgaged Property is free from any and all
toxic or hazardous substances and there exists no violation of any local, state
or federal environmental law, rule or regulation. To the best of the Responsible
Party's knowledge, there is no pending action or proceeding directly involving
the Mortgaged Property in which compliance with any environmental law, rule or
regulation is an issue; there is no violation of any environmental law, rule or
regulation with respect to the Mortgage Property; and nothing further remains to
be done to satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(jj) Servicemembers' Civil Relief Act. Except as disclosed to the
Sponsor on the related Mortgage Loan Schedule, the Mortgagor has not notified
the Responsible Party, and the Responsible Party has no knowledge of any relief
requested or allowed to the Mortgagor under the Servicemembers' Civil Relief
Act;
(kk) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property signed prior to the approval of the Mortgage Loan
application by a qualified appraiser, duly appointed by the related originator,
who had no interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and the appraisal and appraiser
both satisfy the requirements of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989 and the regulations promulgated thereunder, all as
in effect on the date the Mortgage Loan was originated;
(ll) Disclosure Materials. The Mortgagor has received all disclosure
materials required by, and the Responsible Party has complied with, all
applicable law with respect to the making of the Mortgage Loans;
(mm) Construction or Rehabilitation of Mortgaged Property. No
Mortgage Loan was made in connection with the construction or rehabilitation of
a Mortgaged Property or facilitating the trade-in or exchange of a Mortgaged
Property;
(nn) Value of Mortgaged Property. The Responsible Party has no
knowledge of any circumstances existing that could reasonably be expected to
adversely affect the value or the marketability of any Mortgaged Property or
Mortgage Loan or to cause the Mortgage Loans to prepay during any period
materially faster or slower than similar mortgage loans originated to the same
Underwriting Guidelines held by the Responsible Party generally secured by
properties in the same geographic area as the related Mortgaged Property;
(oo) No Defense to Insurance Coverage. The Responsible Party has
caused or will cause to be performed any and all acts required to preserve the
rights and remedies of the Sponsor 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 Sponsor. 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 Responsible Party on or prior to such date) which has
resulted or will result in an exclusion from, denial of, or defense to coverage
under any applicable, special hazard insurance policy, or bankruptcy bond
(including, without limitation, any exclusions, denials or defenses which would
limit or reduce the availability of the timely payment of the full amount of the
loss otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence, or fraud of the Responsible
Party, the related Mortgagor or any party involved in the application for such
coverage, including the appraisal, plans and specifications and other exhibits
or documents submitted therewith to the insurer under such insurance policy, or
for any other reason under such coverage, but not including the failure of such
insurer to pay by reason of such insurer's breach of such insurance policy or
such insurer's financial inability to pay;
(pp) Escrow Analysis. With respect to each Mortgage with an Escrow
Account, the Responsible Party has within the last twelve months (unless such
Mortgage was originated within such twelve month period) analyzed the required
Escrow Payments for each Mortgage and adjusted the amount of such payments so
that, assuming all required payments are timely made, any deficiency will be
eliminated on or before the first anniversary of such analysis, or any overage
will be refunded to the Mortgagor, in accordance with RESPA and any other
applicable law;
(qq) Prior Servicing. Each Mortgage Loan has been serviced in all
material respects in strict compliance with Accepted Servicing Practices and the
Responsible Party has reported or caused to be reported, the Mortgagor credit
files to each of the three primary credit repositories monthly in a timely
manner;
(rr) Leaseholds. If the Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple interest in
the land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent and
the acquisition by the holder of the Mortgage of the rights of the lessee upon
foreclosure or assignment in lieu of foreclosure or provide the holder of the
Mortgage with substantially similar protections; (3) the terms of such lease do
not (a) allow the termination thereof upon the lessee's default without the
holder of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease in the
event of damage or destruction as long as the Mortgage is in existence, (c)
prohibit the holder of the Mortgage from being insured (or receiving proceeds of
insurance) under the hazard insurance policy or policies relating to the
Mortgaged Property or (d) permit any increase in rent other than pre-established
increases set forth in the lease; (4) the original term of such lease is not
less than 15 years; (5) the term of such lease does not terminate earlier than
five years after the maturity date of the Mortgage Note; and (6) the Mortgaged
Property is located in a jurisdiction in which the use of leasehold estates in
transferring ownership in residential properties is a widely accepted practice;
(ss) Prepayment Penalty. The Mortgage Loan is subject to a
Prepayment Penalty as provided in the related Mortgage Note and rider as set
forth on the related Mortgage Loan Schedule. With respect to each Mortgage Loan
that has a Prepayment Penalty feature, each such Prepayment Penalty is
enforceable and will be enforced by the Responsible Party for so long as it is
acting as servicer for the benefit of the Sponsor, and each Prepayment Penalty
is permitted pursuant to federal, state and local law. Each such Prepayment
Penalty is in an amount not more than the maximum amount permitted under
applicable law and no such Prepayment Penalty may provide for a term in excess
of five (5) years with respect to Mortgage Loans originated prior to October, 1,
2002. With respect to Mortgage Loans originated on or after October 1, 2002, the
duration of the Prepayment Penalty period shall not exceed three (3) years from
the date of the Mortgage Note unless the Mortgage Loan was modified to reduce
the Prepayment Penalty period to no more than three (3) years from the date of
such Mortgage Loan and the Mortgagor was notified in writing of such reduction
in Prepayment Penalty period. With respect to any Mortgage Loan that contains a
provision permitting imposition of a penalty upon a prepayment prior to
maturity: (i) prior to the Mortgage Loan's origination, the Mortgagor agreed to
such Prepayment Penalty in exchange for a monetary benefit, including but not
limited to a rate of fee reduction, (ii) originator has available programs that
offered the option of obtaining a mortgage loan that did not require payment of
such a Prepayment Penalty and prior to the Mortgage Loan's origination, the
Mortgage Loan was made available to the Mortgagor with and without the
Prepayment Penalty, (iii) the Prepayment Penalty was adequately disclosed to the
Mortgagor in the mortgage loan documents pursuant to applicable state, local and
federal law and (iv) such Prepayment Penalty shall not be imposed by the
Responsible Party in any instance where the mortgage loan is accelerated or paid
off in connection with the workout of a delinquent mortgage or due to the
Mortgagor's default, notwithstanding that the terms of the mortgage loan or
state or federal law might permit the imposition of such penalty. This
representation and warranty is a Deemed Material Breach Representation;
(tt) Predatory Lending Regulations. No Mortgage Loan is a High Cost
Loan or Covered Loan, as applicable, and no Mortgage Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act. No Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994 and no Mortgage Loan is in violation of any comparable state or local
law. The Mortgaged Property is not located in a jurisdiction where a breach of
this representation with respect to the related Mortgage Loan may result in
additional assignee liability to the Sponsor, as determined by Sponsor in its
reasonable discretion. No predatory or deceptive lending practices, including,
without limitation, the extension of credit without regard to the ability of the
Mortgagor to repay and the extension of credit which has no apparent benefit to
the Mortgagor, were employed in the origination of the Mortgage Loan. Each of
the Group I Mortgage Loan is in compliance with the anti-predatory lending
eligibility for purchase requirements of Xxxxxx Mae's Selling Guide. This
representation and warranty is a Deemed Material Breach Representation;
(uu) Single-premium Credit Life Insurance Policy. In connection with
the origination of any Mortgage Loan, no proceeds from any Mortgage Loan were
used to finance or acquire a single-premium credit life insurance policy. No
Mortgagor was required to purchase any single premium credit insurance policy
(e.g., life, disability, accident, unemployment or property insurance product)
or debt cancellation agreement as a condition of obtaining the extension of
credit. No Mortgagor obtained a prepaid single premium credit insurance policy
(e.g., life, disability, accident, unemployment or property insurance policy) in
connection with the origination of the Mortgage Loan; no proceeds from any
Mortgage Loan were used to purchase single premium credit insurance policies or
debt cancellation agreements as part of the origination of, or as a condition to
closing, such Mortgage Loan. This representation and warranty is a Deemed
Material Breach Representation;
(vv) Tax Service Contract; Flood Certification Contract. Each First
Lien Mortgage Loan is covered by a paid in full, life of loan, tax service
contract and a paid in full, life of loan, flood certification contract and each
of these contracts is assignable to the Sponsor;
(ww) Qualified Mortgage. The Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code;
(xx) Regarding the Mortgagor. The Mortgagor is one or more natural
persons and/or trustees for an Illinois land trust;
(yy) Recordation. Each original Mortgage was recorded and, except
for those Mortgage Loans subject to the MERS identification system, all
subsequent assignments of the original Mortgage (other than the assignment to
the Sponsor) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Responsible Party, or is in the process of being recorded;
(zz) Credit Scores. Unless set forth in the related Purchase Price
and Terms Agreement, each Mortgage Loan has a non-zero credit score. No Mortgage
Loan has a Mortgagor with a credit score of less than 500 as of the related
origination date;
(aaa) Compliance with Anti-Money Laundering Laws. The Responsible
Party has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the "Anti-Money Laundering Laws"); to the extent applicable to
the Responsible Party as of the related Closing Date, the Responsible Party has
established an anti-money laundering compliance program as required by the
Anti-Money Laundering Laws, has conducted the requisite due diligence in
connection with the origination of each Mortgage Loan for purposes of the
Anti-Money Laundering Laws, including with respect to the legitimacy of the
applicable Mortgagor and the origin of the assets used by the said Mortgagor to
purchase the property in question, and maintains, and will maintain, sufficient
information to identify the applicable Mortgagor for purposes of the Anti-Money
Laundering Laws;
(bbb) Origination Practices. Each Mortgage was assigned the highest
credit grade available with respect to a mortgage loan product offered by such
Mortgage Loan's originator, taking into account the credit history, debt to
income ratio and loan requirement of such Mortgagor. This representation and
warranty is a Deemed Material Breach Representation;
(ccc) Underwriting Methodology. The methodology used in underwriting
the extension of credit for each Mortgage Loan does not rely solely on the
extent of the Mortgagor's equity in the collateral as the principal determining
factor in approving such extension of credit. The methodology employed objective
criteria, such as the Mortgagor's income, assets and liabilities, to the
proposed mortgage payment and, based on such methodology, the Mortgage Loan's
originator made a reasonable determination that at the time of origination the
Mortgagor had the ability to make timely payments on the Mortgage Loan. This
representation and warranty is a Deemed Material Breach Representation;
(ddd) Points and Fees. With respect to any Group I Mortgage Loan, no
Mortgagor was charged "points and fees" (whether or not financed) in an amount
greater than (i) $1,000, or (ii) 5% of the principal amount of such Mortgage
Loan, whichever is greater. For purposes of this representation, such 5%
limitation is calculated in accordance with Xxxxxx Mae's anti-predatory lending
requirements as set forth in the Xxxxxx Xxx Guides and "points and fees" (x)
include origination, underwriting, broker and finder fees and charges that the
mortgagee imposed as a condition of making the Mortgage Loan, whether they are
paid to the mortgagee or a third party; and (y) exclude bona fide discount
points, fees paid for actual services rendered in connection with the
origination of the Mortgage Loan (such as attorneys' fees, notaries fees and
fees paid for property appraisals, credit reports, surveys, title examinations
and extracts, flood and tax certifications, and home inspections), the cost of
mortgage insurance or credit-risk price adjustments, the costs of title, hazard,
and flood insurance policies, state and local transfer taxes or fees, escrow
deposits for the future payment of taxes and insurance premiums, and other
miscellaneous fees and charges which miscellaneous fees and charges, in total,
do not exceed 0.25% of the principal amount of such Mortgage Loan. This
representation and warranty is a Deemed Material Breach Representation;
(eee) Fees Charges. All fees and charges (including finance charges)
and whether or not financed, assessed, collected or to be collected in
connection with the origination and servicing of each Mortgage Loan has been
disclosed in writing to the Mortgagor in accordance with applicable state and
federal law and regulation. This representation and warranty is a Deemed
Material Breach Representation;
(fff) [Reserved]
(ggg) Xxxxxx Mae Mortgage Loans. With respect to each Mortgage Loan
which the Depositor indicates is a Xxxxxx Xxx eligible mortgage loan, the
representations set forth on Exhibit M are true and correct.
(hhh) Litigation. As of the Original Purchase Date, the Mortgage
Loan is not subject to any outstanding litigation for fraud, origination,
predatory lending, servicing or closing practices;
(iii) MERS Designations. With respect to each MERS Designated
Mortgage Loan, the Responsible Party has designated the Trustee as the Investor
and no Person is listed as Interim Funder on the MERS(R) System;
(jjj) Owner of Record. As of the Original Purchase Date, the
Responsible Party was the owner of record of each Mortgage and the indebtedness
evidenced by each Mortgage Note, and upon the sale of the Mortgage Loans to the
Sponsor, the Responsible Party retained the Mortgage Files with respect thereto
in trust only for the purpose of servicing and supervising the servicing of each
Mortgage Loan.
(kkk) Reports. On or prior to the related Closing Date, the
Responsible Party has provided the Trustee and the Sponsor with a MERS Report
listing the Trustee as the Investor with respect to each MERS Designated
Mortgage Loan.
(lll) Payoffs. No Mortgage Loans prepaid in full prior to the
related Closing Date.
(mmm) Credit Information. As to each consumer report (as defined in
the Fair Credit Reporting Act, Public Law 91-508) or other credit information
furnished by the Responsible Party to the Sponsor, that Responsible Party has
full right and authority and is not precluded by law or contract from furnishing
such information to the Sponsor and the Sponsor is not precluded by the terms of
the Mortgage Loan Documents from furnishing the same to any subsequent or
prospective Sponsor of such Mortgage. The Responsible Party shall hold the
Sponsor harmless from any and all damages, losses, costs and expenses (including
attorney's fees) arising from disclosure of credit information in connection
with the Sponsor's secondary marketing operations and the purchase and sale of
mortgages. The Responsible Party has in its capacity as servicer, for each
Mortgage Loan, fully furnished, in accordance with the Fair Credit Reporting Act
and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian and
Trans Union Credit Information Company (three of the credit repositories), on a
monthly basis. This representation and warranty is a Deemed Material Breach
Representation;
(nnn) [RESERVED];
(ooo) Arbitration. With respect to any Mortgage Loan originated on
or after August 1, 2004, neither the related Mortgage nor the related Mortgage
Note requires the Mortgagor to submit to arbitration to resolve any dispute
arising out of or relating in any way to the Mortgage Loan transaction. This
representation and warranty is a Deemed Material Breach Representation;
(ppp) Consent. Either (a) no consent for the Second Lien Mortgage
Loan is required by the holder of the related first lien or (b) such consent has
been obtained and is contained in the Mortgage File; and
(qqq) Second Lien Mortgage Loans. With respect to each Second Lien
Mortgage Loan:
(i) No Negative Amortization of Related First Lien Loan. The
related first lien loan does not permit negative amortization;
(ii) Request for Notice; No Consent Required. Where required
or customary in the jurisdiction in which the Mortgaged Property is
located, the original lender has filed for record a request for
notice of any action by the related senior lienholder, and the
Responsible Party has notified such senior lienholder in writing of
the existence of the Second Lien Mortgage Loan and requested
notification of any action to be taken against the Mortgagor by such
senior lienholder. Either (a) no consent for the Second Lien
Mortgage Loan is required by the holder of the related first lien
loan or (b) such consent has been obtained and is contained in the
related Mortgage File;
(iii) No Default Under First Lien. Except as set forth on
Schedule III-A, except for payment defaults of less than one (1)
month, the related first lien loan is in full force and effect, and
there is no default lien, breach, violation or event which would
permit acceleration existing under such first lien mortgage or
mortgage note, and no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event which would permit
acceleration under such first lien loan;
(iv) Right to Cure First Lien. The related first lien mortgage
contains a provision which provides for giving notice of default or
breach to the mortgagee under the Mortgage Loan and allows such
mortgagee to cure any default under the related first lien mortgage;
and
(v) Principal Residence. With respect to any Group I Mortgage
Loan, the related Mortgaged Property is the Mortgagor's principal
residence. This representation and warranty is a Deemed Material and
Adverse Representation.
(rrr) HOEPA Thresholds. Except as set forth on the Mortgage Loan
Schedule, no Mortgage Loan has an "annual percentage rate" or total "points and
fees" payable by the related Mortgagor (as each such term is calculated under
HOEPA) that exceed the thresholds set forth by HOEPA and its implementing
regulations, including 12 C.F.R. ss. 226.32(a)(1)(i) and (ii). This
representation and warranty is a Deemed Material and Adverse Representation.
SCHEDULE III-A
SCHEDULE IV
GSAMP Mortgage Loan Trust 2006-FM3,
Mortgage Pass-Through Certificates
Representations and Warranties of Fremont Investment &
Loan, as Responsible Party
The Responsible Party hereby makes the representations and
warranties set forth in this Schedule IV to the Depositor, the Securities
Administrator, the Master Servicer and the Trustee, as of the Closing Date.
1. Due Organization and Authority. The Responsible Party is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or formation and has all licenses necessary
to carry on its business as now being conducted and is licensed, qualified and
in good standing in each state wherein it owns or leases any material properties
or where a Mortgaged Property is located, if the laws of such state require
licensing or qualification in order to conduct business of the type conducted by
the Responsible Party, and in any event the Responsible Party is in compliance
with the laws of any such state to the extent necessary to ensure the
enforceability of the related Mortgage Loan in accordance with the terms of this
Agreement; the Responsible Party 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 Responsible Party
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 Responsible Party, 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 Responsible Party to make this Agreement
and all agreements contemplated hereby valid and binding upon the Responsible
Party in accordance with their terms;
2. Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement are in the ordinary course of business of the
Responsible Party, and the transfer, assignment and conveyance of the Mortgage
Notes and the Mortgages by the Responsible Party pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
3. No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition or origination of the Mortgage Loans by the
Responsible Party, the sale of the Mortgage Loans to the Sponsor, 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
Responsible Party's charter, by-laws or other organizational documents or any
legal restriction or any agreement or instrument to which the Responsible Party
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 Responsible Party 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 Sponsor to realize on the
Mortgage Loans, impair the value of the Mortgage Loans, or impair the ability of
the Sponsor to realize the full amount of any insurance benefits accruing
pursuant to this Agreement;
4. Ability to Perform; Solvency. The Responsible Party 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 Responsible Party is
solvent and the sale of the Mortgage Loans will not cause the Responsible Party
to become insolvent. The sale of the Mortgage Loans is not undertaken with the
intent to hinder, delay or defraud any of Responsible Party's creditors;
5. No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to the best of the Responsible Party's knowledge,
threatened against the Responsible Party, before any court, administrative
agency or other tribunal (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement, (iii) which, either in any one instance or in the aggregate, is
likely to result in any material adverse change in the business, operations,
financial condition, properties or assets of the Responsible Party, or in any
material impairment of the right or ability of the Responsible Party to carry on
its business substantially as now conducted, or in any material liability on the
part of the Responsible Party, 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 Responsible Party contemplated herein, or
which would be likely to impair materially the ability of the Responsible Party
to perform under the terms of this Agreement, (iv) relating to fraud, or (v)
relating to predatory lending, or the Responsible Party's origination, servicing
or closing practices which is likely to result in any material adverse change in
the business, operations, financial condition, properties or assets of the
Responsible Party.
6. No Consent Required. No consent, approval, authorization or order
of, or registration or filing with, or notice to any court or governmental
agency is required for the execution, delivery and performance by the
Responsible Party of or compliance by the Responsible Party 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;
EXHIBIT A
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 SECURITIES ADMINISTRATOR A TRANSFEROR CERTIFICATE
(THE "TRANSFEROR CERTIFICATE") IN THE FORM OF EXHIBIT I TO THE AGREEMENT
REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR 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 SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
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.
[To be added to the Class B-2 Certificates: NEITHER THIS CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE
SECURITIES ADMINISTRATOR EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT
TO SECTION 4975 OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH
A PLAN, OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, 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
SECURITIES ADMINISTRATOR, 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 SECURITIES ADMINISTRATOR, THE DEPOSITOR, THE MASTER SERVICER OR THE
SERVICERS 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 SECURITIES ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.]
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") 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00 XX XXXX 96-23
OR A COMPARABLE EXEMPTION AVAILABLE UNDER SIMILAR LAW.
Certificate No. :
Cut-off Date : December 1, 2006
First Distribution Date : January 25, 2007
Initial Certificate Balance
of this Certificate
("Denomination") :
Initial Certificate Balances
of all Certificates of this Class Certificate
Class : Class Balance
----------------------------- -------------------- --------------------
Class A-1 $ 257,050,000
Class A-2A $ 154,772,000
Class A-2B $ 59,281,000
Class A-2C $ 63,186,000
Class A-2D $ 37,996,000
Class M-1 $ 28,759,000
Class M-2 $ 26,601,000
Class M-3 $ 12,581,000
Class M-4 $ 11,504,000
Class M-5 $ 11,143,000
Class M-6 $ 7,190,000
Class M-7 $ 8,627,000
Class M-8 $ 4,674,000
Class M-9 $ 7,908,000
Class B-1 $ 8,627,000
Class B-2 $ 6,831,000
CUSIP : Class CUSIP No.
---------------------- -------------------
Class A-1 00000X XX 3
Class A-2A 36245T AB 1
Class A-2B 36245T AC 9
Class A-2C 36245T AD 7
Class A-2D 36245T AE 5
Class M-1 36245T AF 2
Class M-2 36245T AG 0
Class M-3 36245T AH 8
Class M-4 36245T AJ 4
Class M-5 36245T AK 1
Class M-6 36245T AL 9
Class M-7 36245T AM 7
Class M-8 36245T AN 5
Class M-9 36245T AP 0
Class B-1 36245T AT 2
Class B-2 36245T AU 9
ISIN : Class A-1 US36245TAA34
Class A-2A US36245TAB17
Class A-2B US36245TAC99
Class A-2C US36245TAD72
Class A-2D US36245TAE55
Class M-1 US36245TAF21
Class M-2 US36245TAG04
Class M-3 US36245TAH86
Class M-4 US36245TAJ43
Class M-5 US36245TAK16
Class M-6 US36245TAL98
Class M-7 US36245TAM71
Class M-8 US36245TAN54
Class M-9 US36245TAP03
Class B-1 US36245TAT25
Class B-2 US36245TAU97
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-FM3
Mortgage Pass-Through Certificates, Series 2006-FM3
[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 Master Servicer, the Servicer, the Securities Administrator, the
Sponsor, the Responsible Party or 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"), Fremont Investment & Loan, as responsible
party (in such capacity, the "Responsible Party") and as servicer (in such
capacity, the "Servicer"), Deutsche Bank National Trust Company, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
***
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By:
--------------------------------------
Authenticated:
By:___________________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-FM3
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-FM3 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 Securities Administrator 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 Securities Administrator.
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 Securities Administrator 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
Securities Administrator for such purposes, or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicer, the
Securities Administrator 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator 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 Securities Administrator duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 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 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
____________________________________
Signature by or on behalf of assignor
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 SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (i) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM
OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (ii) THE SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR 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 SECURITIES ADMINISTRATOR
AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. :
Cut-off Date : December 1, 2006
First Distribution Date : January 25, 2007
Percentage Interest of
this Certificate
("Denomination") : [_____]%
CUSIP : 36245T AW 0
XXXX XX00000XXX00
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-FM3
Mortgage Pass-Through Certificates, Series 2006-FM3
Class P
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Master
Servicer, the Servicer, the Securities Administrator, the Sponsor, the
Responsible Party or 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"), Fremont Investment & Loan, as responsible
party (in such capacity, the "Responsible Party") and as servicer (in such
capacity, the "Servicer"), Deutsche Bank National Trust Company, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"). 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 Securities Administrator 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 Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor.
No transfer of a Certificate of this Class shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan 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 Securities Administrator.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
***
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By: _______________________________________
Authenticated:
By ____________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-FM3
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-FM3 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 Securities Administrator 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 Securities Administrator.
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 Securities Administrator 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
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicer, the
Securities Administrator 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator 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 Securities Administrator duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 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 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
____________________________________
Signature by or on behalf of assignor
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 : December 1, 2006
First Distribution Date : January 25, 2007
Percentage Interest of
this Certificate
("Denomination") : [ ]
CUSIP : 36245T AX 3
ISIN : US36245TAX37
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-FM3
Mortgage Pass-Through Certificates, Series 2006-FM3
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 Master Servicer, the Servicer,
the Securities Administrator, the Sponsor, the Responsible Party or 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"), Fremont Investment & Loan, as responsible
party (in such capacity, the "Responsible Party") and as servicer (in such
capacity, the "Servicer"), Deutsche Bank National Trust Company, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"). 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. The
only rights of this Class under the Agreement is to make a request as set forth
in Article XI 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 Securities Administrator shall require the transferor to
execute a transferor certificate (in substantially the form attached to the
Agreement) and deliver either (i) a Rule 144A Letter, in either case
substantially in the form attached to the Agreement, or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
***
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By: _______________________________________
Authenticated:
By ____________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-FM3
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-FM3 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 Securities Administrator 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 Securities Administrator.
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 Securities Administrator 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
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicer, the
Securities Administrator 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator 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 Securities Administrator duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 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 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
____________________________________
Signature by or on behalf of assignor
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 SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS 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 : December 1, 2006
First Distribution Date : January 25, 2007
Initial Certificate Balance
of this Certificate
("Denomination") : $ [ ]
Initial Certificate Balance
of all Certificates of this
Class : $ [ ]
CUSIP : 36245T AQ 8
ISIN : US36245TAQ85
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-FM3
Mortgage Pass-Through Certificates, Series 2006-FM3
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
Master Servicer, the Servicer, the Securities Administrator, the Sponsor, the
Responsible Party or 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"), Fremont Investment & Loan, as responsible
party (in such capacity, the "Responsible Party") and as servicer (in such
capacity, the "Servicer"), Deutsche Bank National Trust Company, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"). 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 Securities Administrator 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
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Securities Administrator,
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 Securities Administrator 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 Securities Administrator shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit 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 Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By:____________________________________
Authenticated:
By:________________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-FM3
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-FM3 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 Securities Administrator 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 Securities Administrator and the other parties to
the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made
on the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
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
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicer, the
Securities Administrator 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator 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 Securities Administrator 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 Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Securities Administrator and the Depositor and any agent of the
Securities Administrator 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 Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 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 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
____________________________________
Signature by or on behalf of assignor
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 SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS 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 : December 1, 2006
First Distribution Date : January 25, 2007
Initial Certificate Balance
of this Certificate
("Denomination") : $ [ ]
Initial Certificate Balances
of all Certificates of this
Class : $ [ ]
CUSIP : 36245T AR 6
ISIN : US36245TAR68
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-FM3
Mortgage Pass-Through Certificates, Series 2006-FM3
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
Master Servicer, the Servicer, the Securities Administrator, the Sponsor, the
Responsible Party or 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"), Fremont Investment & Loan, as responsible
party (in such capacity, the "Responsible Party") and as servicer (in such
capacity, the "Servicer"), Deutsche Bank National Trust Company, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"). 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 Securities Administrator 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
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Master Servicer, the
Securities Administrator, 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 Securities Administrator 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 Securities Administrator shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit 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 Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By:____________________________________
Authenticated:
By:_____________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-FM3
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-FM3 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 Securities Administrator 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 Securities Administrator.
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 Securities Administrator 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
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicer, the
Securities Administrator 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator 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 Securities Administrator duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 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 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
____________________________________
Signature by or on behalf of assignor
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 SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS 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 : December 1, 2006
First Distribution Date : January 25, 2007
Initial Certificate Balance
of this Certificate
("Denomination") : $ [50]
Initial Certificate Balances
of all Certificates of this
Class : $ [50]
CUSIP : 36245T AS 4
ISIN : US36245TAS42
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-FM3
Mortgage Pass-Through Certificates, Series 2006-FM3
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
Master Servicer, the Servicer, the Securities Administrator, the Sponsor, the
Responsible Party or 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"), Fremont Investment & Loan, as responsible
party (in such capacity, the "Responsible Party") and as servicer (in such
capacity, the "Servicer"), Deutsche Bank National Trust Company, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"). 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 Securities Administrator 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
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement nor
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Master Servicer, the
Securities Administrator, 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 Securities Administrator 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 Securities Administrator shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit 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 Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this Certificate to
be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By:____________________________________
Authenticated:
By:______________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-FM3
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-FM3 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 Securities Administrator 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 Securities Administrator.
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 Securities Administrator 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
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicer, the
Securities Administrator 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor and the Securities Administrator and any agent of the
Depositor or the Securities Administrator may treat the Person in whose name
this Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Securities Administrator, nor any such agent shall be
affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 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 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
____________________________________
Signature by or on behalf of assignor
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 SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED TO HEREIN AND
EITHER (i) THE SECURITIES ADMINISTRATOR RECEIVES A RULE 144A LETTER IN THE FORM
OF EXHIBIT J TO THE AGREEMENT REFERRED TO HEREIN OR (ii) THE SECURITIES
ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE
TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THE TRANSFEREE IS AN
INSURANCE COMPANY, 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 SECURITIES ADMINISTRATOR, 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 SECURITIES ADMINISTRATOR, THE
DEPOSITOR, THE MASTER SERVICER OR THE SERVICERS 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 SECURITIES ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.
Certificate No. : 1
Cut-off Date : December 1, 2006
First Distribution Date : January 25, 2007
Percentage Interest of this
Certificate ("Denomination") :
CUSIP : 36245T AV 7
ISIN: : US36245TAV70
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-FM3
Mortgage Pass-Through Certificates, Series 2006-FM3
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 Master Servicer, the Servicer, the Securities
Administrator, the Sponsor, the Responsible Party or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate 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"), Fremont Investment & Loan, as responsible
party (in such capacity, the "Responsible Party") and as servicer (in such
capacity, the "Servicer"), Deutsche Bank National Trust Company, as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A., as master servicer (the "Master
Servicer") and securities administrator (the "Securities Administrator"). 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 Securities Administrator 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
Securities Administrator shall have received either (i) a representation letter
from the transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement 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 Master
Servicer, the Securities Administrator, 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 Securities Administrator, which Opinion
of Counsel shall not be an expense of the Securities Administrator, the
Depositor, the Servicer or the Trust Fund, addressed to the Securities
Administrator, 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 Securities Administrator, 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 Securities Administrator 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 Securities Administrator shall not
register the Transfer of this Certificate unless, in addition to the
certificates required to be delivered to the Securities Administrator under
Section 5.02(b) of the Agreement, the Securities Administrator shall have been
furnished with a Transfer Affidavit of the initial owner or the proposed
transferee in the form attached as Exhibit 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 Securities Administrator.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
By:____________________________________
Authenticated:
By:______________________________________
Authorized Signatory of
XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Securities Administrator
GS MORTGAGE SECURITIES CORP.
GSAMP Trust 2006-FM3
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAMP Trust 2006-FM3 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 Securities Administrator 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 Securities Administrator.
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 Securities Administrator 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
Securities Administrator for such purposes or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Securities Administrator and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Master Servicer, the Servicer, the
Securities Administrator 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 Securities Administrator upon surrender of this
Certificate for registration of transfer at the offices designated by the
Securities Administrator 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 Securities Administrator duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, the Servicer and the Securities Administrator and any
agent of the Depositor or the Securities Administrator may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Securities Administrator, nor any such agent
shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 5% or 10%, as applicable,
of the Cut-off Date Pool Principal Balance, the Person specified in Section
11.01 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 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
_____________________________________________________________________________.
Dated:
____________________________________
Signature by or on behalf of assignor
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]
[Securities Administrator]
Re: Pooling and Servicing Agreement, dated as of December 1, 2006, among
GS Mortgage Securities Corp., as Depositor, Fremont Investment &
Loan, as Servicer and Responsible Party, Deutsche Bank National
Trust Company, as Trustee and Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, GSAMP Trust 2006-FM3, Series
0000-XX0
Xxxxxxxxx:
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 Certificateholder 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]
[Securities Administrator]
[Responsible Party]
_____________________
_____________________
Re: Pooling and Servicing Agreement, dated as of December 1, 2006, among
GS Mortgage Securities Corp., as Depositor, Fremont Investment &
Loan, as Servicer and Responsible Party, Deutsche Bank National
Trust Company, as Trustee and Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, GSAMP Trust 2006-FM3, Series
0000-XX0
Xxxxxxxxx:
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 in the form provided in Section 2.01 of
the Pooling and Servicing Agreement; or, if the Responsible Party has
certified or the Trustee otherwise 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 copy of lender's title policy and all riders
thereto or, any one of an original title binder, an original preliminary
title report or an original title commitment, or a copy thereof from 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
GSAMP Trust 2006-FM3,
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 December 1, 2006 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Fremont Investment & Loan, as responsible party (in
such capacity, the "Responsible Party") and as servicer (in such capacity, the
"Servicer"), Deutsche Bank National Trust Company, as Trustee (the "Trustee")
and Xxxxx Fargo Bank, N.A., as master servicer (the "Master Servicer") and
securities administrator (the "Securities Administrator"). 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 Securities Administrator.
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 Securities Administrator 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:
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services GSAMP 2006-FM3
Re: GSAMP Trust 2006-FM3 Mortgage Pass-Through Certificates,
Series 2006-FM3, 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.
Xxxxxxx Sachs Matsui Marine Derivative Products, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services GSAMP 2006-FM3
RE GSAMP Trust 2006-FM3 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 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
B-2 or 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.
Our taxpayer identification number is __________. We attach hereto
IRS Forms W-8ECI, W-8BEN, W-8IMY (and all appropriate attachments) or W-9. We
hereby consent to the attached Forms being provided by the Swap Provider.
ANNEX 1 TO EXHIBIT J
--------------------
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 J
--------------------
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
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services GSAMP 2006-FM3
Re: GSAMP Trust 2006-FM3 Mortgage Pass-Through Certificates,
Series 2006-FM3, Class [__]
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we are an
institutional "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 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 B-2 or 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 a 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 a Trustee, please acknowledge your receipt by signing in the space
indicated below, and returning this form, if requested.
FREMONT INVESTMENT & LOAN
By:____________________________________
(authorized signer)
Issuer:________________________________
Address:_______________________________
_______________________________________
Date:__________________________________
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:
(1) the original Mortgage Note (except for up to 0.50% of the
Mortgage Notes for which there is a lost note affidavit and a copy of the
Mortgage Note) bearing all intervening endorsements, endorsed "Pay to the
order of _________, without recourse" and signed in the name of the last
endorsee. To the extent that there is no room on the face of the Mortgage
Notes for endorsements, the endorsement may be contained on an allonge
unless the Trustee is 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]";
(2) the original of any guarantee executed in connection with the
mortgage note, if provided;
(3) 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 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 (or certified by) the
Responsible Party (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;
(4) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon or a
certified true copy of such agreement submitted for recording;
(5) 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;
(6) the originals of all intervening assignments of mortgage (if
any) evidencing a complete chain of assignment from the originator to the
last endorsee (or MERS with respect to each MERS Designated Mortgage Loan)
with evidence of recording thereon, or if any such intervening assignment
has not been returned from the applicable recording office or has been
lost or if such public recording office retains the original recorded
assignments of mortgage, the Responsible Party 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 (or certified by) the Responsible
Party (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;
(7) the original or copy of mortgagee policy of title insurance or a
copy of the related policy binder or commitment for title from the title
insurance company; and
(8) a security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage (if provided).
EXHIBIT N
REPRESENTATIONS AND WARRANTIES AGREEMENT
This REPRESENTATIONS AND WARRANTIES AGREEMENT ("Agreement"), dated
as of December 21, 2006 (the "Closing Date"), is between XXXXXXX SACHS MORTGAGE
COMPANY ("GSMC" or the "Seller") and GS MORTGAGE SECURITIES CORP. (the
"Depositor" or the "Purchaser").
W I T N E S S E T H:
WHEREAS, GSMC acquired certain mortgage loans (the "Mortgage Loans")
set forth on the mortgage loan schedule attached hereto as Schedule I (the
"Mortgage Loan Schedule") from Fremont Investment & Loan ("Fremont") pursuant to
that certain Amended and Restated Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of January 1, 2006, as amended by Amendment No. 1, dated as
of August 1, 2006 (collectively, the "Purchase Agreement"), each by and between
GSMC, as purchaser, and Fremont, as seller;
WHEREAS, pursuant to that certain Pooling and Servicing Agreement,
dated as of December 1, 2006 (the "Pooling and Servicing Agreement"), among the
Depositor, Fremont, as servicer (in such capacity, the "Servicer") and as
responsible party (in such capacity, the "Responsible Party"), Deutsche Bank
National Trust Company, as trustee (the "Trustee"), Xxxxx Fargo Bank, National
Association as securities administrator (in such capacity, the "Securities
Administrator") and as master servicer (in such capacity, the "Master
Servicer"), the GSAMP Trust 2006-FM3 (the "Trust") shall issue its Mortgage
Pass-Through Certificates, Series 2006-FM3 (the "Certificates"), representing
beneficial ownership interest in a trust, the assets of which include, but are
not limited to, the Mortgage Loans transferred by the Depositor to the Trust
pursuant to the Pooling and Servicing Agreement;
WHEREAS, in connection with the sale of the Mortgage Loans by GSMC
to the Depositor, GSMC shall make various representations and warranties to the
Depositor regarding the Mortgage Loans;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Defined Terms.
(a) Unless otherwise defined herein, capitalized terms used herein
shall have the meanings assigned to such terms in the Pooling and Servicing
Agreement. In the event of a conflict between any of the defined terms contained
in this Agreement and the Pooling and Servicing Agreement, the definitions
contained in the Pooling and Servicing Agreement shall control.
(b) The following capitalized terms shall have the meanings assigned
to such terms below:
Covered Loan: A Mortgage Loan categorized as Covered pursuant to
Appendix E of Standard & Poor's Glossary.
Deleted Mortgage Loan: A Mortgage Loan that is repurchased or
replaced or to be replaced with a Qualified Substitute Mortgage Loan by GSMC in
accordance with the terms of this Agreement.
High Cost Loan: A Mortgage Loan that is (a) covered by the Home
Ownership and Equity Protection Act of 1994, (b) identified, classified or
characterized as "high cost," "threshold," "covered," or "predatory" under any
other applicable state, federal or local law (or a similarly identified,
classified or characterized Mortgage Loan using different terminology under a
law imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees) or
(c) categorized as "High Cost" or "Covered" pursuant to Appendix E of the
Standard & Poor's Glossary.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by GSMC for a Deleted Mortgage Loan which must, on the date of such
substitution, (i) have an outstanding principal balance, after deduction of all
scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the outstanding principal balance
of the Deleted Mortgage Loan (the amount of any shortfall will be paid by GSMC
to the Depositor or its designee in the month of substitution); (ii) have a
Mortgage Interest Rate not less than, and not more than 1% greater than, the
Mortgage Interest Rate of the Deleted Mortgage Loan; (iii) have a remaining term
to maturity not greater than, and not more than one year less than, that of the
Deleted Mortgage Loan (iv) be of the same type as the Deleted Mortgage Loan
(i.e., fixed rate or adjustable rate with same Periodic Rate Cap and Index); and
(v) comply with each representation and warranty (respecting individual Mortgage
Loans) set forth in Section 2 of this Agreement.
Standard & Poor's Glossary: Version 5.6(b) of the Standard & Poor's
LEVELS(R) Glossary.
Section 2. Representations and Warranties of GSMC.
As to each Mortgage Loan, GSMC hereby makes the representations and
warranties as of the Closing Date.
(a) 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 Premiums, have been complied with and the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations;
(b) No monthly payment required under the Mortgage Loan is one month
or more delinquent, nor has any payment under the Mortgage Loan been one month
or more Delinquent since the origination of the Mortgage Loan;
(c) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable. No Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act; and
(d) None of the Group I Mortgage Loans has a Prepayment Premium in
excess of three years.
Section 3. Repurchase or Substitution Obligation for Breach of a
Representation or Warranty.
(a) Within sixty (60) days of the earlier of either discovery by or
notice to GSMC of any breach of a representation or warranty which materially
and adversely affects the value of the Mortgage Loans or the interest of the
Depositor therein (or which materially and adversely affects the value of the
applicable Mortgage Loan or the interest of the Depositor therein), GSMC shall
cure such breach in all material respects and, if such breach cannot be cured,
GSMC shall, at the Depositor's option, within sixty (60) calendar days of GSMC's
receipt of request from the Depositor, repurchase such Mortgage Loan at the
Repurchase Price, together with all expenses incurred by the Depositor as a
result of such repurchase. Notwithstanding the above sentence, within sixty (60)
days of the earlier of either discovery by, or notice to, GSMC of any breach of
the representations or warranties set forth in Section 2, GSMC shall repurchase
the affected Mortgage Loan or Mortgage Loans at the Repurchase Price, together
with all expenses incurred by the Depositor as a result of such repurchase. Any
repurchase of a Mortgage Loan or Loans pursuant to the foregoing provisions of
this Section 3 shall be accomplished by direct remittance of the Repurchase
Price to the Depositor or its designee in accordance with the Depositor's
instructions.
However, if the breach shall involve a representation or warranty
set forth in Section 2 (other than clauses (a), (c) and (d) of such section) of
this Agreement relating to any Mortgage Loan and GSMC discovers or receives
notice of any such breach within one hundred and twenty (120) days of the
Closing Date, GSMC shall, at the Depositor's option and provided that GSMC has a
Qualified Substitute Mortgage Loan, rather than repurchase such Mortgage Loan as
provided above, remove such Mortgage Loan (a "Deleted Mortgage Loan") and
substitute in its place a Qualified Substitute Mortgage Loan or Mortgage Loans,
provided that any such substitution shall be effected not later than one hundred
and twenty (120) days after the Closing Date. If GSMC has no Qualified
Substitute Mortgage Loan, GSMC shall repurchase the deficient Mortgage Loan. Any
repurchase of a Mortgage Loan or Mortgage Loans pursuant to the foregoing
provisions of this Section 3 shall be accomplished by direct remittance of the
Repurchase Price to the Depositor or its designee in accordance with the
Depositor's instructions.
At the time of repurchase or substitution, the Depositor and GSMC
shall arrange for the reassignment of the Deleted Mortgage Loan to GSMC and the
delivery to GSMC of any documents held by the Trustee relating to the Deleted
Mortgage Loan. In the event of a repurchase or substitution, GSMC shall,
simultaneously with such reassignment, give written notice to the Depositor that
such repurchase or substitution has taken place, amend the applicable Mortgage
Loan Schedule to reflect the withdrawal of the Deleted Mortgage Loan from this
Agreement, and, in the case of substitution, identify a Qualified Substitute
Mortgage Loan and amend the applicable Mortgage Loan Schedule to reflect the
addition of such Qualified Substitute Mortgage Loan to this Agreement. In
connection with any such substitution, GSMC shall be deemed to have made as to
such Qualified Substitute Mortgage Loan the representations and warranties set
forth in this Agreement except that all such representations and warranties set
forth in this Agreement shall be deemed made as of the date of such
substitution. GSMC shall effect such substitution by delivering to the Trustee
or to such other party as the Depositor may designate in writing for such
Qualified Substitute Mortgage Loan the documents required by the Pooling and
Servicing Agreement, with the Mortgage Note endorsed as required by the Pooling
and Servicing Agreement. No substitution will be made in any calendar month
after the initial Determination Date for such month. GSMC shall remit directly
to the Depositor, or its designee in accordance with the Depositor's
instructions the monthly payment less the Servicing Fee due, if any, on such
Qualified Substitute Mortgage Loan or Mortgage Loans in the month following the
date of such substitution. Monthly payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution shall be retained by
GSMC. For the month of substitution, distributions to the Depositor shall
include the monthly payment due on any Deleted Mortgage Loan in the month of
substitution, and GSMC shall thereafter be entitled to retain all amounts
subsequently received by GSMC in respect of such Deleted Mortgage Loan.
For any month in which GSMC substitutes a Qualified Substitute
Mortgage Loan for a Deleted Mortgage Loan, GSMC shall determine the amount (if
any) by which the aggregate principal balance of all Qualified Substitute
Mortgage Loans as of the date of substitution is less than the aggregate Stated
Principal Balance of all Deleted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall shall be distributed by GSMC directly to the Depositor or its designee
in accordance with the Depositor's instructions within two (2) Business Days of
such substitution.
Any cause of action against GSMC relating to or arising out of the
breach of any representations and warranties made in Section 2 shall accrue as
to any Mortgage Loan upon (i) discovery of such breach by the Depositor or
notice thereof by GSMC to the Depositor, (ii) failure by GSMC to cure such
breach, repurchase such Mortgage Loan or substitute a Qualified Substitute
Mortgage Loan as specified above, and (iii) demand upon GSMC by the Depositor
for compliance with this Agreement.
(b) It is understood and agreed that the obligation of GSMC set
forth in Section 3(a) to repurchase or substitute for a Mortgage Loan in breach
of a representation or warranty contained in Section 2 constitutes the sole
remedy of the Depositor or any other person or entity with respect to such
breach.
(c) In the event a Mortgage Loan is required to be repurchased due
to an early payment default under the Purchase Agreement, GSMC shall pay to
GSAMP Trust 2006-FM3 (the "Trust") the applicable repurchase price pursuant to
the Purchase Agreement.
Section 4. Document Delivery Requirements.
GSMC shall deliver to the Depositor all documents and instruments
required under Section 2.01 of the Pooling and Servicing Agreement with respect
to the Mortgage Loans. In the event any document or instrument required to be
delivered to the Depositor pursuant to Section 2.01 of the Pooling and Servicing
Agreement, including an original or copy of any document submitted for
recordation to the appropriate public recording office, is not so delivered to
the Depositor, and in the event that GSMC does not cure such failure within 30
days of discovery or receipt of written notification of such failure from the
Depositor, GSMC shall, at the Depositor's option, repurchase such Mortgage Loan
at the Repurchase Price, together with all expenses incurred by the Depositor as
a result of such repurchase.
Section 5. Term of Representation and Warranties.
The representations and warranties of GSMC set forth in Section 2
shall inure to the benefit of the Depositor and its successors and assigns until
all amounts payable to Certificateholders under the Pooling and Servicing
Agreement have been paid in full.
Section 6. Execution in Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
Agreement.
Section 7. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARDS TO CONFLICTS OF LAWS
PRINCIPLES.
Section 8. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section 9. Captions.
The captions in this Agreement are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Section 10. Successors and Assigns.
This Agreement shall insure to the benefit of the parties hereto and
their respective successors and assigns. Any entity into which GSMC or the
Depositor may be merged or consolidated shall, without the requirement for any
further writing, be deemed GSMC or the Depositor, respectively, hereunder.
Section 11. Amendments.
This Agreement may be amended from time to time by the parties
hereto.
[Remainder of this Page Intentionally Left Blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date and year first above written.
XXXXXXX XXXXX MORTGAGE COMPANY
By: Xxxxxxx Sachs Real Estate Funding
Corp., its General Partner
By: /s/ Xxxx X. Xxxxx
------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
Schedule I
Mortgage Loan Schedule
(Available Upon Request)
EXHIBIT O
FORM OF CERTIFICATION TO BE PROVIDED WITH FORM-10-K
Re: GSAMP Trust 2006-FM3 (the "Trust") Mortgage Pass-Through
Certificates, Series 2006-FM3, issued pursuant to the Pooling and
Servicing Agreement, dated as of December 1, 2006 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, Fremont Investment & Loan, as Servicer and Responsible
Party, Deutsche Bank National Trust Company, as Trustee and Xxxxx
Fargo Bank, N.A., as Securities Administrator and Master Servicer,
GSAMP Trust 2006-FM3, Series 2006-FM3.
I, [identify the certifying individual], certify that:
2. 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;
3. 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;
4. 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;
5. 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; and
6. 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 Master
Servicer, the Securities Administrator, the Trustee and the Servicer.
Date: _________________________
_______________________________
[Signature]
[Title]
EXHIBIT P
FORM OF SECURITIES ADMINISTRATOR CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: GSAMP Trust 2006-FM3 (the "Trust") Mortgage Pass-Through
Certificates, Series 2006-FM3, issued pursuant to the Pooling and
Servicing Agreement, dated as of December 1, 2006 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, Fremont Investment & Loan, as Servicer and Responsible
Party, Deutsche Bank National Trust Company, as Trustee and Xxxxx
Fargo Bank, N.A., as Securities Administrator and Master Servicer,
GSAMP Trust 2006-FM3, Series 2006-FM3.
The Securities Administrator 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 Securities Administrator is not
responsible for verifying the accuracy or completeness of information in the
Reports (a) provided by Persons other than the Securities Administrator or any
Subcontractor utilized by the Trustee or (b) relating to Persons other than the
Securities Administrator or any Subcontractor utilized by the Securities
Administrator as to which a Responsible Officer of the Securities Administrator
does not have actual knowledge;
3. To my knowledge, the distribution or servicing information
required to be provided to the Securities Administrator 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 Securities Administrator and each
Subcontractor utilized by the Securities Administrator 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: _________________________________
_______________________________________
[Signature]
[Title]
EXHIBIT Q-1
FORM OF CERTIFICATION TO BE PROVIDED
BY THE SERVICER TO DEPOSITOR
Re: GSAMP Trust 2006-FM3 (the "Trust") Mortgage Pass-Through
Certificates, Series 2006-FM3, issued pursuant to the Pooling and
Servicing Agreement, dated as of December 1, 2006 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, Fremont Investment & Loan, as Servicer and Responsible
Party, Deutsche Bank National Trust Company, as Trustee and Xxxxx
Fargo Bank, N.A., as Securities Administrator and Master Servicer,
GSAMP Trust 2006-FM3, Series 2006-FM3.
The Servicer (the "Servicer"), certifies to the Depositor and the
Securities Administrator, 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 provided to the Depositor and the Securities Administrator 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") provided to the Depositor and the Securities Administrator
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 Securities Administrator by the Servicer pursuant
to the Pooling and Servicing Agreement has been provided to the Securities
Administrator;
4. Based on the Company's knowledge and the compliance review
conducted in preparing Compliance Statement of the Servicer except as disclosed
in such Compliance Statement[(s)], Servicing Assessment[(s)] or Attestation
Report[(s)], the Servicer has fulfilled its obligations under the Pooling and
Servicing Agreement in all material respects.
5. Each Servicing Assessment of 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 Securities Administrator. Any material
instances of non-compliance are described in any such Servicing Assessment or
Attestation Report.
Date: _______________________
By: _______________________
Name: _______________________
Title: ______________________
EXHIBIT Q-2
FORM OF CERTIFICATION TO BE PROVIDED
BY THE SUBSERVICER TO DEPOSITOR
Re: GSAMP Trust 2006-FM3 (the "Trust") Mortgage Pass-Through
Certificates, Series 2006-FM3, issued pursuant to the Pooling and
Servicing Agreement, dated as of December 1, 2006 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, Fremont Investment & Loan, as Servicer and Responsible
Party, Deutsche Bank National Trust Company, as Trustee and Xxxxx
Fargo Bank, N.A., as Securities Administrator and Master Servicer,
GSAMP Trust 2006-FM3, Series 2006-FM3
The Subservicer (the "Subservicer"), certifies to the Depositor and
the Securities Administrator, and their respective officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. The Subservicer has reviewed the servicer compliance statement of
the Subservicer provided to the Depositor and the Securities Administrator for
the Trust's fiscal year [___] in accordance with Item 1123 of Regulation AB
(each a "Compliance Statement"), the report on assessment of the Subservicer's
compliance with the servicing criteria set forth in Item 1122(d) of Regulation
AB (the "Servicing Criteria") provided to the Depositor and the Securities
Administrator 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 Subservicer
during 200[ ] that were delivered or caused to be delivered by the Subservicer
pursuant to the Agreement (collectively, the "Servicing Information");
2. Based on the Subservicer'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 Securities Administrator by the Subservicer
pursuant to the Pooling and Servicing Agreement has been provided to the
Securities Administrator;
4. Based on the Company's knowledge and the compliance review
conducted in preparing Compliance Statement of the Subservicer except as
disclosed in such Compliance Statement[(s)], Servicing Assessment[(s)] or
Attestation Report[(s)], the Subservicer has fulfilled its obligations under the
Pooling and Servicing Agreement in all material respects.
5. Each Servicing Assessment of the Subservicer 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 Securities Administrator. Any material
instances of non-compliance are described in any such Servicing Assessment or
Attestation Report.
Date: _______________________
By: _______________________
Name: _______________________
Title: ______________________
EXHIBIT Q-3
FORM OF CERTIFICATION TO BE PROVIDED
BY THE MASTER SERVICER TO DEPOSITOR
Re: GSAMP Trust 2006-FM3 (the "Trust") Mortgage Pass-Through
Certificates, Series 2006-FM3, issued pursuant to the Pooling and
Servicing Agreement, dated as of December 1, 2006 (the "Pooling and
Servicing Agreement"), among GS Mortgage Securities Corp., as
Depositor, Fremont Investment & Loan, as Servicer and Responsible
Party, Deutsche Bank National Trust Company, as Trustee and Xxxxx
Fargo Bank, N.A., as Securities Administrator and Master Servicer,
GSAMP Trust 2006-FM3, Series 2006-FM3.
The Master Servicer (the "Servicer"), certifies to the Depositor and
the Securities Administrator, 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 provided to the Depositor and the Securities Administrator 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") provided to the Depositor and the Securities Administrator
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 Securities Administrator by the Servicer pursuant
to the Pooling and Servicing Agreement has been provided to the Securities
Administrator;
4. Based on the Company's knowledge and the compliance review
conducted in preparing Compliance Statement of the Servicer except as disclosed
in such Compliance Statement[(s)], Servicing Assessment[(s)] or Attestation
Report[(s)], the Servicer has fulfilled its obligations under the Pooling and
Servicing Agreement in all material respects.
5. Each Servicing Assessment of 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 Securities Administrator. Any material
instances of non-compliance are described in any such Servicing Assessment or
Attestation Report.
Date: _______________________
By: _______________________
Name: _______________________
Title: ______________________
EXHIBIT R
FORM OF POWER OF ATTORNEY
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
[Fremont Investment & Loan
[1065 North PacifiCenter,
Anaheim, California 92806,]
Attn: _________________________________
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Xxxxx Fargo Bank, N.A., having its
principal place of business at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000, as Securities Administrator (the "Securities Administrator") pursuant to
that Pooling and Servicing Agreement among GS Mortgage Securities Corp. (the
"Depositor"), Fremont Investment & Loan, a responsible party (in such capacity,
the "Responsible Party"), and as servicer (in such capacity, the "Servicer"),
Deutsche Bank National Trust Company, as Trustee (the "Trustee") and Xxxxx Fargo
Bank, N.A., as master servicer (the "Master Servicer") and securities
administrator (the "Securities Administrator"), dated as of December 1, 2006
(the "Pooling and Servicing Agreement"), hereby constitutes and appoints the
Servicer, by and through the Servicer's officers, the Securities Administrator's
true and lawful Attorney-in-Fact, in the Securities Administrator's name, place
and stead and for the Securities Administrator's benefit, in connection with all
mortgage loans serviced by the Servicer pursuant to the Pooling and Servicing
Agreement for the purpose of performing all acts and executing all documents in
the name of the Securities Administrator as may be customarily and reasonably
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 Securities
Administrator 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 to the following enumerated transactions only:
1. The modification or re-recording of a Mortgage or Deed of Trust,
where said modification or re-recordings is 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 and said modification or re-recording, in either instance, does not
adversely affect the lien of the Mortgage or Deed of Trust as insured.
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:
9. The substitution of trustee(s) serving under a Deed of Trust, in
accordance with state law and the Deed of Trust;
(1) the preparation and issuance of statements of breach or
non-performance;
(2) the preparation and filing of notices of default and/or notices
of sale;
(3) the cancellation/rescission of notices of default and/or notices
of sale;
(4) the taking of a deed in lieu of foreclosure; and
(5) 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.
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
lawfully do or cause to be done by authority hereof.
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, __________________ as Securities Administrator
pursuant to that Pooling and Servicing Agreement among the Depositor, the
Servicer, the Master Servicer, the Responsible Party, the Securities
Administrator and the Trustee, dated as of December 1, 2006 (GSAMP Trust
2006-FM3 Mortgage Pass-Through Certificates, Series 2006-FM3), has caused its
corporate seal to be hereto affixed and these presents to be signed and
acknowledged in its name and behalf by ______________ its duly elected and
authorized Vice President this __ day of ________, 200__.
By:____________________________________
as Securities Administrator for GSAMP Trust
2006-FM3 Mortgage Pass-Through Certificates,
Series 2006-FM3
By:____________________________________
Name:
Title:
STATE OF ________
COUNTY OF ______
On ___________, 200__, before me, the undersigned, a Notary Public
in and for said state, personally appeared _______________, Vice President of
________________as Securities Administrator for ______________ Mortgage Loan
Asset Backed Certificates, Series 200__-___, 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
FORM OF LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Deutsche Bank National Trust
Company, a national banking association organized and existing under the laws of
the United States, having its principal place of business at 0000 Xxxx Xx.
Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx, 00000, as Trustee (the "Trustee") pursuant
to that ____________ Agreement dated as of (the "Agreement") by and between
_________ and_________ (the "Servicer"), [INSERT ADDITIONAL PARTIES AND/OR
AGREEMENTS AS NECESSARY] hereby constitutes and appoints the Servicer, by and
through the Servicer's officers, the Trustee's true and lawful Attorney-in-Fact,
in the Trustee's name, place and stead and for the Trustee's benefit, in
connection with all mortgage loans serviced by the Servicer pursuant to the
Agreement solely for the purpose of performing such acts and executing such
documents in the name of the Trustee necessary and appropriate to effectuate the
following enumerated transactions in respect of any of the mortgages or deeds of
trust (the "Mortgages" and the "Deeds of Trust" respectively) and promissory
notes secured thereby (the "Mortgage Notes") for which the undersigned is acting
as Trustee for various certificateholders (whether the undersigned is named
therein as mortgagee or beneficiary or has become mortgagee by virtue of
endorsement of the Mortgage Note secured by any such Mortgage or Deed of Trust)
and for which _________ is acting as the Servicer.
This Appointment shall apply only to the following enumerated
transactions and nothing herein or in the Agreement shall be construed to the
contrary:
1. The modification or re-recording of a Mortgage or Deed of Trust,
where said modification or re-recording is solely for the purpose of correcting
the Mortgage or Deed of Trust to conform same to the original intent of the
parties thereto or to correct title errors discovered after such title insurance
was issued; provided that (i) said modification or re-recording, in either
instance, does not adversely affect the lien of the Mortgage or Deed of Trust as
insured and (ii) otherwise conforms to the provisions of the Agreement.
2. 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 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 Agreement or to allow the Servicer to take any
action with respect to Mortgages, Deeds of Trust or Mortgage Notes not
authorized by the Agreement.
The Servicer hereby agrees to indemnify and hold the Trustee and its
directors, officers, employees and agents harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever incurred by
reason or result of or in connection with the exercise by the Servicer of the
powers granted to it hereunder. The foregoing indemnity shall survive the
termination of this Limited Power of Attorney and the Agreement or the earlier
resignation or removal of the Trustee under the Agreement.
This Limited Power of Attorney is entered into and shall be governed
by the laws of the State of New York, without regard to conflicts of law
principles of such state.
Third parties without actual notice may rely upon the exercise of
the power granted under this Limited Power of Attorney; and may be satisfied
that this Limited Power of Attorney shall continue in full force and effect and
has not been revoked unless an instrument of revocation has been made in writing
by the undersigned.
IN WITNESS WHEREOF, Deutsche Bank National Trust Company, as Trustee
has caused its corporate seal to be hereto affixed and these presents to be
signed and acknowledged in its name and behalf by a duly elected and authorized
signatory this ___________ day of ____________.
Deutsche Bank National Trust Company, as Trustee
By:____________________________________
Name:
Title:
Acknowledged and Agreed
[Insert Name of the Servicer]
By: ___________________________________
Name:
Title:
STATE OF CALIFORNIA
COUNTY OF ____________
On ________________, _____, before me, the undersigned, a Notary
Public in and for said state, personally appeared
________________________________ of Deutsche Bank National Trust Company, as
Trustee for [INSERT REFERENCE TO ISSUANCE], personally known to me to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he/she executed that same in his/her authorized capacity, and that by
his/her signature on the instrument the entity upon behalf of which the person
acted and executed the instrument.
WITNESS my hand and official seal.
(SEAL)
____________________________________
Notary Public, State of California
EXHIBIT T
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Securities
Administrator], [the Master Servicer] [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
upon mutual agreement among the applicable party requesting such amendment and
the other parties to the Agreement.
APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
-------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
-------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any Securities
performance Securities or other triggers and events of Administrator/Servicer
default in accordance with the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third Securities
parties, policies and procedures are instituted to monitor the Administrator/Servicer
third party's performance and compliance with such servicing
activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain N/A
a back-up servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in Servicer/Master Servicer
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 Servicer/Master Servicer
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 Servicer/Securities
obligor or to an investor are made only by authorized Administrator/Master Servicer
personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash Servicer/Master Servicer
flows or distributions, and any interest or other fees
charged for such advances, are made, reviewed and approved
as specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve Servicer/Securities
accounts or accounts established as a form of Administrator/Master Servicer
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the transaction
agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured Servicer/Securities
depository institution as set forth in the transaction Administrator/Master Servicer
agreements. For purposes of this criterion, "federally
insured depository Servicer 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 Servicer/Securities
access. Administrator/Master
Servicer
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all Servicer/Securities
asset-backed securities related bank accounts, including custodial Administrator/Master
accounts and related bank clearing accounts. These reconciliations Servicer
are (A) mathematically accurate; (B) prepared within 30 calendar
days after the bank statement cutoff date, or such other number of
days specified in the transaction agreements; (C) reviewed and
approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling items.
These reconciling items are resolved within 90 calendar days of
their original identification, or such other number of days
specified in the transaction agreements.
-------------------------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
-------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the Securities
Commission, are maintained in accordance with the transaction Administrator/Servicer/Master
agreements and applicable Commission requirements. Specifically, Servicer
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 Securities
accordance Securities with timeframes, distribution Administrator/Servicer/Master
priority and other terms set forth in the transaction agreements. Servicer
1122(d)(3)(iii) Disbursements made to an investor are posted within two Securities
business Securities days to the Servicer's investor Administrator/Servicer/Master
records, or such other number of days specified in the Servicer
transaction agreements. Servicer
1122(d)(3)(iv) Amounts remitted to investors per the investor reports Securities
agree with Securities cancelled checks, or other form of Administrator/Servicer/Master
payment, or custodial bank statements. Servicer Servicer
-------------------------------------------------------------------------------------------------------------------------------
Pool Asset Administration
-------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as Trustee/ Securities
required by the transaction agreements or related mortgage Administrator/Servicer
loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as Trustee/ Securities
required by the transaction agreements Administrator/Servicer
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool Securities
are made, reviewed and approved in accordance with any Administrator/Servicer
conditions or requirements in the transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in Servicer
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
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 Servicer
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, Servicer
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 Servicer
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 Servicer
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 Servicer
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 Servicer
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 Servicer
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 Servicer
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 Servicer
recognized and recorded in accordance with the transaction
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Securities Administrator
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB,
is maintained as set forth in the transaction agreements.
EXHIBIT U
ADDITIONAL FORM 10-D DISCLOSURE
Item on Form 10-D Party Responsible
---------------------------------------- -------------------------------------
Item 1: Distribution and Pool Master Servicer/
Performance Information Servicer/
Securities Administrator
Any information required by clauses (i)
and (ii) of the second full paragraph
of Section 4.03(a) of the Pooling and
Servicing Agreement
Any information required by Item 1121 Depositor
which is NOT included on the monthly
statement
Item 2: Legal Proceedings (i) All parties to the Agreement (as
to themselves), (ii) the Trustee, the
per Item 1117 of Regulation AB Master Servicer, the Securities
Administrator and the Servicer (to
their respective actual knowledge) as
to the issuing entity, (iii) the
Depositor as to the sponsor, and each
Originator (other than a 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 Securities Administrator/ Trustee
Item 5: Submission of Matters to a Securities Administrator/ Trustee
Vote of Security Holders
Item 6: Significant Obligors of Pool N/A
Assets
Item 7: Significant Enhancement Depositor
Provider Information
Item 8: Other Information Any party to the Agreement responsible
for disclosure items on Form 8-K
Item 9: Exhibits Securities Administrator (or other
responsible party)
Exhibits required by Item 601 of Depositor
Regulation S-K, such as material
agreements
--------------------------------------------------------------------------------
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 Securities Administrator
Statement Schedules Depositor
Additional Item: (i) All parties to the Agreement (as to
themselves), (ii) the Trustee, the Master
Disclosure per Item 1117 of Servicer, the Depositor, the Securities
Regulation AB Administrator and the Servicer (to their
respective actual knowledge) as to the
Trust, (iii) the Depositor as to the
sponsor and each Originator (other than a
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
Agreement entering into such material
definitive agreement
Item 1.02- Termination of a Material The party to this Agreement
Definitive Agreement requesting termination of a
material definitive agreement
Item 1.03- Bankruptcy or Receivership (i) All parties to the Agreement
(as to themselves), (ii) the
Trustee, the Master Servicer, the
Securities Administrator and the
Servicer (to their respective
actual knowledge) as to the Trust,
(iii) the Depositor as to the
sponsor and each Originator (other
than a Responsible Party) or any
1100(d)(1) party
Item 2.04- Triggering Events that Accelerate Securities
or Increase a Direct Financial Obligation or Administrator/Depositor/ Master
an Obligation under an Off-Balance Sheet Servicer
Arrangement
Item 3.03- Material Modification to Rights The party requesting such
of Security Holders modification
Item 5.03- Amendments of Articles of Depositor
Incorporation or Bylaws; Change of Fiscal
Year
Item 6.01- ABS Informational and Depositor
Computational Material
Item 6.02- Change of Servicer, Securities Master Servicer, Servicer,
Administrator or Trustee Securities Administrator, Trustee
(as to the Trustee)
Item 6.03- Change in Credit Enhancement or Depositor/Securities Administrator
External Support
Item 6.04- Failure to Make a Required Securities Administrator/ Trustee
Distribution
Item 6.05- Securities Act Updating Disclosure Depositor/ Trustee
Item 7.01- Regulation FD Disclosure Depositor
Item 8.01 Depositor
Item 9.01 - Financial Statements and Exhibits Responsible party for
reporting/disclosing the financial
statement or exhibit
EXHIBIT X
INTEREST RATE SWAP AGREEMENT
(Multicurrency - Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of December 21, 2006
XXXXXXX XXXXX MITSUI MARINE and GSAMP TRUST 2006-FM3
DERIVATIVE PRODUCTS, L.P.
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the 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 MITSUI MARINE GSAMP TRUST 2006-FM3
DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, Inc. By: Xxxxx Fargo Bank, National
General Partner Association, not in its individual
capacity but solely as Securities
Administrator and Master Servicer, on
behalf of GSAMP Trust 2006-FM3
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxxx X.X. Xxxxx
------------------------- -----------------------------
Name: Xxxxx Xxxxx Name: Xxxxxxxx X.X. Xxxxx
Title: Vice President Title: Vice President
Date: 12.21.06 Date: 12.21.06
SCHEDULE
to the
MASTER AGREEMENT
dated as of December 21, 2006
between
XXXXXXX SACHS MITSUI MARINE
DERIVATIVE PRODUCTS, L.P.
a limited partnership organized
under the laws of Delaware
("Party A"),
and
GSAMP Trust 2006-FM3
a trust organized
under the laws of the State of New York
("Party B").
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to Party A for the purpose of:
Section 5(a)(v), Not Applicable.
Section 5(a)(vi), Not Applicable.
Section 5(a)(vii), Not Applicable.
Section 5(b)(iv), Not Applicable.
and in relation to Party B for the purpose of:
Section 5(a)(v), Not Applicable.
Section 5(a)(vi), Not Applicable.
Section 5(a)(vii), Not Applicable.
Section 5(b)(iv), Not Applicable.
(b) "Specified Transaction" shall have the meaning specified in Section 14
of this Agreement.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii) will not
apply to Party A or Party B.
(d) The "Credit Support Default" provisions of Section 5(a)(iii) will
apply to Party A and will not apply to Party B.
(e) The "Misrepresentation" provisions of Section 5(a)(iv) will not apply
to Party A or Party B.
(f) The "Cross Default" provisions of Section 5(a)(vi) will not apply to
Party A or Party B.
(g) With respect to Party B only, Section 5(a)(vii)(2) is hereby amended
as follows:
"(2) becomes insolvent or is unable to pay its debts (other than
payments due to holders of its subordinate certificates) or fails or
admits in writing its inability generally to pay its debts (other
than payments to holders of its subordinate certificates) as they
become due"
(h) The "Merger without Assumption" provisions of Section 5(a)(viii)
will apply to Party A and will not apply to Party B.
(i) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will
not apply to Party A or Party B.
(j) The "Automatic Early Termination" provisions of Section 6(a) will
not apply to Party A or Party B.
(k) Payments on Early Termination. For the purpose of Section 6(e):
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(l) "Termination Currency" means U.S. Dollars.
(m) The "Additional Termination Event" provisions of Section 5(b)(v)
will apply as set forth in Part 5(n) hereof.
(n) The "Default under Specified Transaction" provisions of Section
5(a)(v) will not apply to Party A or Party B.
(o) The "Tax Event" provisions of Section 5(b)(ii) will apply to Party A
and will not apply to Party B.
(p) The "Tax Event Upon Merger" provisions of Section 5(b)(iii) will
apply to Party A and will not apply to Party B.
Part 2. Tax Representations.
(a) Payer Representations. For purposes of Section 3(e) of this Agreement,
Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of any
Relevant Jurisdiction to make any deduction or withholding for or on
account of any Tax from any payment (other than interest under
Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be made by it
to the other party under this Agreement. In making this
representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of
this Agreement, (ii) the satisfaction of the agreement contained in
Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement, and (iii) the
satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement, provided that it shall not be a
breach of this representation where reliance is placed on subclause
(ii) and the other party does not deliver a form or document under
Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
Party A Payee Representations. For the purpose of Section 3(f) of this
Agreement, Party A makes the following representations:
(i) It is a "U.S. payee" within the meaning of Treasury Regulation Section
1.1441-5(b).
(ii) It is a United States person within the meaning of Section 7701(a)(30) of
the Internal Revenue Code of 1986, as amended.
Party B Payee Representations. For the purpose of Section 3(f) of this
Agreement, Party B makes the following representation:
(i) It is a trust created under an agreement governed by New York law.
Part 3. Agreement to Deliver Documents.
For the purpose of Section 4(a), each party agrees to deliver the
following documents, as applicable:
(a) Tax forms, documents, or certificates to be delivered are:
Party A agrees to complete, execute, and deliver to Party B, United States
Internal Revenue Service Form W-9 or any successor of such form: (i) on a
date which is before the first scheduled payment date under this
Agreement; (ii) promptly upon reasonable demand by Party B; and (iii)
promptly upon learning that any such forms previously provided by Party A
has become obsolete or incorrect.
Party B agrees to complete, execute, and deliver to Party A, United States
Internal Revenue Service Form W-9 or any successor of such forms: (i) on a
date which is before the first scheduled payment date under this
Agreement; (ii) promptly upon reasonable demand by Party A; and (iii)
promptly upon learning that any such forms previously provided by Party B
has become obsolete or incorrect.
(b) Other documents to be delivered are:
Covered by
Party required to Form/Document/ Date by which Section 3(d)
deliver document Certificate to be delivered Representation
----------------- --------------------- --------------- --------------
Party A Power of At execution of Yes
Attorney this Agreement
with respect
to Party A
Party A Support Agreement At execution of Yes
dated as of October this Agreement
8, 1993 among Party
A, Mitsui Marine and
Fire Insurance Co.,
Ltd. ("Mitsui
Marine"), and The
Xxxxxxx Xxxxx Group,
Inc. ("Goldman
Group") (the "Support
Agreement")
accompanied by a
certificate of an
authorized officer of
Party A, certifying
that it is a true,
complete and correct
copy of the original
Support Agreement
Party A Guaranty dated as of At execution of Yes
December 20, 2000 this Agreement
between Mitsui Marine
and Xxxxxxx Xxxxx Group
(the "Guaranty"),
accompanied by a
certificate certifying
that it is a true,
complete and correct
copy of the original
Guaranty
Party A Most recently prepared As soon as Yes
annual balance sheet of possible
Party A following
request of Party
B
Party A Legal opinions with At execution of No
respect to Party A this Agreement
Party B Incumbency certificate At execution of Yes
or other documents this Agreement
evidencing the
authority, incumbency
and specimen signature
of each person
executing this
Agreement, any Credit
Support Document or any
Confirmation, as the
case may be.
Party B Servicer Remittance Promptly upon Yes
Reports becoming
available
Party B Legal opinion with At execution of No
respect to Party B this Agreement
Party B An executed copy of the Within 30 days No
Pooling and Servicing after the date
Agreement dated as of of this Agreement
December 1, 2006, (the
"Pooling and Servicing
Agreement") among
GS Mortgage
Securities Corp.,
as depositor,
Fremont Investment
& Loan, as
servicer and
responsible party,
Xxxxx Fargo Bank,
National
Association, as
master servicer
and securities
administrator, 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: Xxxxx Fargo Bank, National
Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: GSAMP Trust 2006-FM3
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not Applicable
Party B appoints as its Process Agent: Not Applicable
With a copy to:
Address: Standard & Poor's Ratings Services,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Residential Mortgage Surveillance
Group
Facsimile: 212-438-2652
With a copy to:
Address: Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgage Backed
Securities Group
Facsimile: 000-000-0000
(c) Offices; Multibranch Parties.
(i) The provisions of Section 10(a) will be applicable.
(ii) For the purpose of Section 10(c):
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(d) Calculation Agent. The Calculation Agent is Party A.
(e) Credit Support Document. Details of any Credit Support Document.
(i) With respect to Party A, (A) the Support Agreement, (B) the
Guaranty and (C) any Credit Support Annex that may be entered into
in connection with any of the events described in Part 5(n)(iii) of
this Schedule.
(ii) With respect to Party B, not applicable.
Each Credit Support Document is incorporated by reference into and
constitutes part of this Agreement and each Confirmation as if set
forth in full in this Agreement or such Confirmation.
(f) Credit Support Provider.
(i) Credit Support Provider means in relation to Party A, Goldman
Group and Mitsui Marine; provided that all defaults by,
misrepresentations of, actions or failures to act by, or
circumstances or events applicable to a "Credit Support
Provider" as such term is used in this Agreement shall be
deemed in all such circumstances to refer to defaults
simultaneously in effect with respect to both Goldman Group
and Mitsui Marine, misrepresentations made by both Goldman
Group and Mitsui Marine, actions or failures to act
simultaneously by both Goldman Group and Mitsui Marine, and
circumstances or events simultaneously applicable to both
Goldman Group and Mitsui Marine.
(ii) Credit Support Provider means in relation to Party B, Not
Applicable.
(g) Governing Law. This Agreement and each Confirmation will be governed
by, and construed and enforced in accordance with, the substantive law of the
State of New York, without reference to its choice of law doctrine.
(h) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in the
second line of subparagraph (i) thereof the word "non-"; and (ii) deleting the
final paragraph thereof.
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) will apply to
Transactions with effect from the date of this Agreement. Notwithstanding
anything to the contrary in Section 2(c), amounts that are payable with respect
to the same Calculation Period shall be netted, as provided in Section 2(c),
even if such amounts are not due on the same Payment Date.
(j) "Affiliate" will have the meaning specified in Section 14; provided,
however, Party B shall be deemed to have no Affiliates.
Part 5. Other Provisions.
(a) Accuracy of Specified Information. With respect to Party A, Section
3(d) is hereby amended by adding in the third line thereof after the word
"respect" and before the period the words "or, in the case of audited or
unaudited financial statements or balance sheets, a fair presentation of the
financial condition of the relevant person."
(b) Transfer. Section 7 is hereby amended by:
(i) adding in the third line thereof after the word "party," the
words "which consent shall not be unreasonably withheld or
delayed" and adding in the third line thereof after the clause
"that: -" the words "provided that the Rating Agency Condition
is satisfied in all events (including in the event of a
transfer under Section 6(b)(ii));
(ii) adding in the second line of subparagraph (a) thereof after
the words "assets to," the words "or reorganization,
incorporation, reincorporation, reconstitution, or reformation
into or as";
(iii) deleting at the end of subparagraph (a) thereof the word
"and";
(iv) deleting in the second line of subparagraph (b) thereof the
period and replacing it with "; and";
(v) adding after subparagraph (b) thereof the following
subparagraph (c):
(c) in addition to, and not in lieu of, the preceding transfer
rights, Party A may, without recourse by Party B or Party A's
transferee to or against Party A, transfer this Agreement, in whole,
but not in part, to any of Party A's Affiliates or any of the
Affiliates of Goldman Group pursuant to documentation prepared by
Party A, provided that:
(i) either (A) such transferee must have a long-term,
unsecured, unsubordinated debt obligation ratings
or financial program ratings (or other similar
ratings) by S&P which are equal to or greater than
the comparable long-term, unsecured,
unsubordinated debt obligation ratings or
financial program ratings (or other similar
ratings) of Party A immediately prior to such
transfer, or (B) the obligations transferred to
such transferee must be guaranteed by Party A
pursuant to a guaranty in substantially the form
of the Guaranty of the Credit Support Provider or
other agreement or instrument consented to by
Party B or other agreement or instrument mutually
agreed upon by both parties and satisfactory to
S&P;
(ii) the transferee will not, as a result of such
transfer, be required to withhold or deduct on
account of a Tax under Section 2(d)(i) on the next
succeeding Scheduled Payment Date an amount in
excess of that which Party A would have been
required to so withhold or deduct on the next
succeeding Scheduled Payment Date in the absence
of such transfer unless the transferee will be
required to make payments of additional amounts
pursuant to Section 2(d)(i)(4) in respect of such
excess;
(iii) an Event of Default or a Termination Event does
not occur as a result of such transfer;
(iv) the Rating Agency Condition is satisfied. With
respect to the results described in subclause (ii)
above, Party A will cause the transferee to make,
and Party B will make, such reasonable Payer Tax
Representations and Payee Tax Representations as
may be mutually agreed upon by the transferee and
Party B in order to permit such parties to
determine that such results will not occur upon or
after the transfer;
(v) Party A agrees to transfer only to a transferee in
a jurisdiction, which it is aware is a "netting"
jurisdiction, that is in which, by opinion of
counsel published by ISDA, netting under this
Agreement shall be enforceable; and
(vi) Party A will be responsible for any costs or
expenses incurred in connection with such
transfer.
(vi) adding at the end of
Except as may otherwise be stated in Section 7(c) hereof or in the
documentation evidencing a transfer, a transfer of all of the
obligations of Party A made in compliance with this Section will
constitute an acceptance and assumption of such obligations (and any
related interests so transferred) by the transferee, a novation of
the transferee in place of Party A with respect to such obligations
(and any related interests so transferred), and a release and
discharge by Party B of Party A from, and an agreement by Party B
not to make any claim for payment, liability, or otherwise against
Party A with respect to, such obligations from and after the
effective date of the transfer.
(c) Set-Off. Notwithstanding the last sentence of the first paragraph of
Section 6(e) of this Agreement, but without affecting the provisions of this
Agreement requiring the calculation of certain net payment amounts as a result
of an Event of Default or Termination Event or otherwise, all payments under
this Agreement will be made without setoff or counterclaim.
(d) Reference Market-makers. The definition of "Reference Market-makers"
in Section 14 is hereby amended by adding in the fourth line thereof after the
word "credit" the words "or to enter into transactions similar in nature to
Transactions".
(e) Procedures for Entering into Transactions. On or promptly following
the Trade Date or other transaction date of each Transaction, Party A will send
to Party B a Confirmation. Party B will promptly thereafter request any
correction of such Confirmation (indicating how it believes the terms of such
Confirmation should be correctly stated and such other terms which should be
added to or deleted from such Confirmation to make it correct).
(f) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall be
held to be invalid or unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants, and conditions hereof shall continue in
full force and effect as if this Agreement had been executed with the invalid or
unenforceable portion eliminated, so long as this Agreement as so modified
continues to express, without material change, the original intentions of the
parties as to the subject matter of this Agreement and the deletion of such
portion of this Agreement will not substantially impair the respective benefits
or expectations of the parties to this Agreement; provided, however, that this
severability provision shall not be applicable if any provision of Section 2, 5,
6, or 13 (or any definition or provision in Section 14 to the extent it relates
to, or is used in or in connection with any such Section) shall be so held to be
invalid or unenforceable.
(g) Waiver of Right to Trial by Jury. Each party hereby irrevocably
waives, to the fullest extent permitted by applicable law, any right it may have
to trial by jury in respect of any suit, action or proceeding relating to this
Agreement.
(h) Credit Support Default. Subparagraph (3) of Section 5(a)(iii) is
hereby amended by adding in the second line thereof after the word "Document"
and before the semicolon the words "(or such action is taken by any person or
entity appointed or empowered to operate it or act on its behalf)."
(i) Additional Representations. Section 3 is hereby amended by adding the
following additional subsections:
(i) No Agency. With respect to Party A, it is entering into this
Agreement and each Transaction as principal (and not as agent or in
any other capacity, fiduciary or otherwise) and, with respect to
Party B, Xxxxx Fargo Bank, National Association is entering into the
Agreement in its capacity as Securities Administrator and Master
Servicer 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 Xxxxx
Fargo Bank, National Association is acting as Securities
Administrator and Master Servicer for Party B. It has made its own
independent decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based upon
its own judgment and upon advice from such advisers as it has deemed
necessary. It is not relying on any communication (written or oral)
of the other party as investment advice or as a recommendation to
enter into that Transaction; it being understood that information
and explanations related to the terms and conditions of a
Transaction shall not be considered investment advice or a
recommendation to enter into that Transaction. No communication
(written or oral) received from the other party shall be deemed to
be an assurance or guarantee as to the expected results of that
Transaction.
(iv) Assessment and Understanding; Status of Parties. It is capable
of assessing the merits of and understanding (on its own behalf or
through independent professional advice), and understands and
accepts, the terms, conditions and risks of that Transaction. It is
also capable of assuming, and assumes, the risks of that
Transaction. The other party is not acting as a fiduciary for or an
adviser to it in respect of that Transaction.
(j) RESERVED.
(k) Regarding Party A. Party B acknowledges and agrees that Party A has
had and will have no involvement in and, accordingly, accepts no responsibility
for: (i) the establishment, structure, or choice of assets of Party B; (ii) the
selection of any person performing services for or acting on behalf of Party B;
(iii) the selection of Party A as the counterparty; (iv) the terms of the
Certificates; (v) the preparation of or passing on the disclosure and other
information contained in any prospectus or prospectus supplement for the
Certificates, the Pooling and Servicing Agreement, or any other agreements or
documents used by Party B or any other party in connection with the marketing
and sale of the Certificates; (vi) the ongoing operations and administration of
Party B, including the furnishing of any information to Party B which is not
specifically required under this Agreement; or (vii) any other aspect of Party
B's existence except for those matters specifically identified in this
Agreement.
(l) No Recourse. The Certificates represent an equity interest in Party B
only and the foregoing does not represent an interest in or obligation of Party
A, and no recourse may be had by the holders of the Certificates against Party A
or its assets with respect to the Notes and the Certificates and/or this
Agreement.
(m) Indemnifiable Tax. Party A agrees that Party B will not be required to
pay any additional amounts pursuant to Section 2(d)(i)(4) of the Agreement in
respect of an Indemnifiable Tax. If Party A is required to pay additional
amounts in respect of a withholding tax pursuant to Section 2(d)(i)(4) of this
Agreement, Party A may transfer this Agreement, subject to satisfaction of the
Rating Agency Condition, as provided in Section 6(b)(ii) of this Agreement and
such transfer shall not require the consent of Party B to the extent it is in
conformance with the provisions of Section 7(c), as amended herein.
(n) Additional Termination Events.
(i) It shall be an Additional Termination Event, with Party A as
the sole Affected Party, if the Depositor determines at any
time that it is required for purposes of compliance with Item
1115(b) of Regulation AB to provide any financial or other
data relating to Party A and, within 15 calendar days of such
determination, Party A fails to assign this Agreement and all
of its obligations hereunder to a substitute counterparty that
(A) has agreed to provide any financial or other data required
under Regulation AB, (B) has agreed to provide
indemnifications relating to such financial or other data
acceptable to the Depositor, (C) satisfies the Rating Agency
Condition and (D) is approved by the Depositor (which approval
shall not be unreasonably withheld). For the avoidance of
doubt, unless otherwise specified in this Agreement, Party A
shall be under no obligation to provide any such financial or
other data, whether in connection with this Termination Event
or otherwise. For purposes of this Termination Event, (i)
"Commission" shall mean the Securities and Exchange
Commission, (ii) "Depositor" shall mean GS Mortgage Securities
Corp., and (iii) "Regulation AB" shall mean the Asset Backed
Securities Regulation AB, 17 C.F.R. ss.ss.229.1100-229.1123,
as such may be amended from time to time, and subject to such
clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may
be provided by the Commission or its staff from time to time.
(ii) It shall also be an Additional Termination Event if (i) an
Optional Termination Date is designated pursuant to the
Pooling and Servicing Agreement (a "Redemption Termination")
and (ii) there remains no more than 5 Business Days prior to
the proposed Redemption Date. In the case of a Redemption
Termination, both Party A and Party B shall have the right to
cause a termination of this Agreement and, for purposes of
Section 6(e)(ii) of this Agreement, Party B shall be the sole
Affected Party. Following notification from the Securities
Administrator and Master Servicer that it has received a
redemption notice, Party A shall provide the Securities
Administrator and Master Servicer from time to time, upon
request, with good faith estimates of the amount that would be
payable under Section 6(e)(ii) in the event of such Redemption
Termination. Any termination payment payable in respect of
such Additional Termination Event shall be paid on the
relevant Redemption Date.
(iii) (I) It shall also be an Additional Termination Event, with
Party A the sole Affected Party (except as expressly provided
herein) if Party A, a replacement counterparty, or a person or
an entity that guarantees the obligations of Party A or a
replacement counterparty, as the case may be, has a rating
that does not satisfy the Required Hedge Counterparty Rating
(but is at least "BBB-" or "A-3" (if applicable) by S&P and at
least "A1" by Moody's) and none of the following events has
occurred:
(A) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, Party A or
such replacement counterparty, as the case may be,
transfers this Agreement, in whole, but not in
part, to a counterparty that satisfies the
Required Hedge Counterparty Rating, subject to
satisfaction of the Rating Agency Condition;
(B) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, Party A or
such replacement counterparty, as the case may be,
collateralizes its Exposure to Party B pursuant to
an ISDA Credit Support Annex, subject to
satisfaction of the Rating Agency Condition, as
applicable; provided that such ISDA Credit Support
Annex shall be made a Credit Support Document for
Party A pursuant to an amendment of this Agreement
in a form acceptable to the Securities
Administrator and Master Servicer which amendment
shall also be subject to satisfaction of Rating
Agency Condition;
(C) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, the
obligations of Party A or such replacement
counterparty, as the case may be, under this
Agreement are guaranteed by a person or entity
that satisfies the Required Hedge Counterparty
Rating, subject to satisfaction of the Rating
Agency Condition; or
(D) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, Party A or
such replacement counterparty, as the case may be,
takes such other steps, if any, to enable the
Issuer to satisfy the Rating Agency Condition.
(II) It shall also be an Additional Termination Event,
with Party A as the sole Affected Party (except as
expressly provided herein) if Party A, a replacement
counterparty, or a person or an entity that guarantees
the obligations of Party A or a replacement
counterparty, as the case may be, has a rating withdrawn
or reduced below "BBB-" or "A-3" (if applicable) by S&P
or below "A1" by Moody's and within 7 days thereafter,
Party A or such replacement counterparty, as the case
may be, while collateralizing its Exposure to Party B,
fails to transfer this Agreement, in whole, but not in
part, to a counterparty that satisfies the Required
Hedge Counterparty Rating, subject to satisfaction of
the Rating Agency Condition.
Upon downgrade of Party A below the Required Hedge
Counterparty Rating or below "BBB-" or "A-3" (if applicable)
by S&P or below "A1" by Moody's, or if S&P or Moody's
withdraws its ratings for any reason, Party A will promptly
give notice of the circumstances to Party B and to the rating
agencies that at the time are providing ratings for the
Certificates.
Party B shall be entitled to (A)(1) in case of an Additional
Termination Event described in Part 5(n)(iii)(I), designate a
date that is not earlier than the expiration of the 30 day
period referred to in Part 5(n)(iii)(I) as an Early
Termination Date in respect of all transactions under this
Agreement by giving notice to Party A at least 10 days prior
to the date so designated (which notice may be given prior to
the expiration of such 30 day period) and (2) in case of an
Additional Termination Event described in this Part
5(n)(iii)(II), immediately designate an Early Termination
Date, in respect of all transactions under this Agreement by
giving notice to Party A and (B) no later than the respective
dates specified in clause (A)(1) and (A)(2), transfer the
rights and obligations of Party A hereunder to a counterparty
that satisfies the Required Hedge Counterparty Rating, subject
to satisfaction of the Rating Agency Condition.
In connection with a transfer of this Agreement as described
in this Part 5(n)(iii), Party A shall, at its sole cost and
expense, use commercially reasonable efforts to seek a
replacement counterparty. In addition, if Party A pursues any
of the alternative actions contemplated in paragraphs (A),
(B), (C) and (D) of Part 5(n)(iii)(I) above, it shall do so at
its sole cost and expense.
As used herein, "Required Hedge Counterparty Rating" means,
with respect to a counterparty or entity guaranteeing the
obligations of such counterparty, (x) either (i) if such
counterparty or entity has only a long-term rating by Moody's,
a long-term senior, unsecured debt obligation rating,
financial program rating or other similar rating (as the case
may be, the "Long-Term rating") of at least "Aa3" by Moody's
and if rated "Aa3" by Xxxxx'x is not on negative credit watch
by Moody's or (ii) if such counterparty or entity has a
Long-Term Rating and a short-term rating by Moody's, a
Long-Term Rating of at least "A1" by Moody's and a short-term
rating of "P-1" by Moody's and, in each case, such rating is
not on negative credit watch by Moody's and (y) (i) a
short-term rating of at least "A-1" by S&P or (ii) if such
counterparty or entity does not have a short-term rating by
S&P, a Long-Term Rating of at least "A+" by S&P.
For the purposes of determining the Settlement Amount with
respect to the designation of an Early Termination Date
arising from the Additional Termination Event specified in
Part 5(n)(iii), both Party A and Party B shall be Affected
Parties. If the Settlement Amount calculated pursuant to this
subclause (iii) is an amount owing by Party B to Party A, then
such payment shall be a Swap Termination Payment payable by
Party B to Party A in accordance with the priority of payments
described in the Pooling and Servicing Agreement; provided,
however, that (a) if Party A does not after the exercise of
commercially reasonable efforts cause any of the conditions
specified in Part 5(n)(iii)(I)(A) to (D) to be satisfied,
Party B shall use commercially reasonable efforts to enter
into a replacement Transaction(s) with a counterparty
acceptable to the Rating Agencies, in respect of the Affected
Transaction(s) relating to the Additional Termination Event;
and (b) where multiple quotations are available such
replacement Transaction(s) shall be entered into based on the
quoted price(s) that would result in the largest payment made
to Party B by the replacement counterparty (it being
understood that Party A may be permitted to actively solicit
and obtain such quotations on behalf of Party B); and (c) to
the extent that payments are received by Party B as a result
of entering into such replacement Transaction(s), then Party A
shall have first priority as to such payments versus all other
creditors of Party B and Party B shall pay the lesser of (x)
the amount so received and (y) the Swap Termination Payment to
the extent not already paid by Party B over to Party A
immediately upon receipt.
As used herein, "Exposure" means, as of any date of
determination, the amount, if any, that would be payable to
Party B by Party A under this Agreement if an Early
Termination Date were to occur as of such date of
determination as a result of a Termination Event, Party A were
the sole Affected Party, all Transactions were terminated in
connection with such Early Termination Date and (solely for
purposes of determining Exposure) the amount of such payment
were calculated using Market Quotation.
For any Additional Termination Event, the date that Party A or Party
B, as the case may be, specifies in its notice of its election to
terminate shall be the Early Termination Date for the Transactions;
provided, that solely in the case of an Additional Termination Event
described in subclause (ii) above, the Early Termination Date shall
be no earlier than the 3rd Business Day preceding the Redemption
Date and no later than the Redemption Date.
(o) Indemnifiable Tax. The definition of "Indemnifiable Tax" in Section 14
is hereby amended by adding the following sentence at the end thereof:
Notwithstanding the foregoing, "Indemnifiable Tax" also means any
Tax imposed in respect of a payment under this Agreement by reason
of a Change in Tax Law by a government or taxing authority of a
Relevant Jurisdiction of the party making such payment, unless the
other party is incorporated, organized, managed and controlled, or
considered to have its seat in such jurisdiction, or is acting for
purposes of this Agreement through a branch or office located in
such jurisdiction.
(p) Limited Recourse; Non-petition. Party A agrees that the obligations of
Party B hereunder are limited recourse obligations payable solely from the
assets of Party B, and due to the extent funds are available for the payment
thereof in accordance with the priority of payments described in the Pooling and
Servicing Agreement. Party A agrees that it will not, prior to the date which is
at least one year and one day or, if longer, the then applicable preference
period following the payment in full of all the Certificates issued pursuant to
the Pooling and Servicing Agreement and the expiration of all applicable
preference periods under Title 11 of the United States Code or other applicable
law relating to any such payment, acquiesce, petition or otherwise invoke or
cause Party B to invoke the process of any governmental authority for the
purpose of commencing or sustaining a case (whether voluntary or involuntary)
against Party B under any bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of Party B or any substantial part of its property or ordering
the winding-up or liquidation of the affairs of Party B. Nothing contained
herein shall prohibit Party A from submitting a claim, or proof of claim, in any
proceeding or process instituted by or against Party B by any person other than
Party A or its Affiliates. Party A and Party B agree that this Part 5(p) shall
survive the termination of this Agreement for any reason whatsoever.
(q) Securities Administrator and Master Servicer Capacity. It is expressly
understood and agreed by the parties hereto that insofar as this Agreement is
executed by the Securities Administrator and Master Servicer (i) this Agreement
is executed and delivered by Xxxxx Fargo Bank, National Association, not in its
individual capacity but solely as Securities Administrator and Master Servicer
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 Xxxxx Fargo Bank, National Association in its individual
capacity be personally liable for the payment of any indebtedness or expenses or
be personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken under this Agreement on
behalf of Party B or any assignee.
(r) Additional Party A Covenant. Following a failure to satisfy the
Required Hedge Counterparty Rating in accordance with Part 5(n)(iii)(I), Party A
shall take the actions described in accordance with Part 5(n)(iii)(I)(A), (B),
(C) or (D). Following a failure to satisfy the rating requirements set forth in
Part 5(n)(iii)(II), Party A shall take the actions described in accordance with
Part 5(n)(iii)(II).
(s) Agreements: Furnish Specified Information. Section 4(a) is hereby
amended by adding at the end thereof the following paragraph:
Notwithstanding the foregoing provisions of this Section 4(a), the
parties agree that, pursuant to the terms of the Power of Attorney
with respect to Party A referred to in Part 3(b) of this Schedule,
any one or more of the officers of Party A's general partner who has
been designated as an agent and attorney in fact of Party A will so
deliver to Party B or such government or taxing authority the
specified or requested forms, documents, or certificates.
(t) Confirmations. Transactions shall be promptly confirmed by the parties
by Confirmations exchanged by mail, telex, facsimile or other electronic means.
Where a Transaction is confirmed by means of an electronic messaging system that
the parties have elected to use to confirm such Transaction (i) such
confirmation will constitute a "Confirmation" as referred to in this Agreement
even where not so specified in the confirmation and (ii) such Confirmation will
supplement, form part of, and be subject to this Agreement and all provisions in
this Agreement will govern the Confirmation except as modified therein.
(u) Tax Documentation. Section 4(a)(iii) of the Agreement is hereby
amended by adding prior to the existing text:
"upon the earlier of learning that any such form or document is
required or"
(v) Inconsistency-Trade Call. In the event of any inconsistency between a
telephone conversation, including a trade call and a Confirmation signed by both
parties, the Confirmation shall govern.
(w) Condition Precedent. The condition precedent in Section 2(a)(iii)(1)
does not apply to a payment and delivery owing by a party if the other party
shall have satisfied in full all its payment or delivery obligations under
Section 2(a)(i) and shall at the relevant time have no future payment or
delivery obligations, whether absolute or contingent, under Section 2(a)(i).
(x) Definitions. This Agreement shall be subject to the 2000 Definitions
(the "2000 Definitions") as published by the International Swaps and Derivatives
Association Inc. The provisions of the 2000 Definitions are incorporated by
reference in and shall be deemed a part of this Agreement, except that all
references in the 2000 Definitions to a "Swap Transaction" shall be deemed
references to a "Transaction" for the purposes of this Agreement. Capitalized
terms used and not otherwise defined herein (or in the 2000 Definitions) shall
have the respective meanings ascribed to such terms in the Pooling and Servicing
Agreement referred to in Part 3(b). If in relation to any Transaction there is
any inconsistency between the 2000 Definitions, this Agreement, the Pooling and
Servicing Agreement, any Confirmation and any other definitions published by
ISDA that are incorporated into any Confirmation, the following will prevail for
purposes of such Transaction in the order of precedence indicated: (i) such
Confirmation (without reference to any definitions or provisions incorporated
therein); (ii) the Pooling and Servicing Agreement; (iii) this Agreement; (iv)
such other definitions; and (v) the 2000 Definitions.
(y) Amendments. Section 9(b) is hereby amended as follows:
(i) by inserting the following phrase immediately prior to the
period at the end of the sentence: "and the Rating Agency Condition
is satisfied"; and
(ii) by adding the following text thereto immediately following the
first sentence: "Amendments to this Agreement or the Schedule may
not be effected in a Confirmation."
(z) "Rating Agency Condition" means, with respect to any action to which a
Rating Agency Condition applies, that each rating agency then rating the
Certificates shall have been given ten days (or such shorter period as is
acceptable to each such rating agency) prior notice of that action and
that each such rating agency shall have notified the Securities
Administrator and Master Servicer 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 SACHS MITSUI MARINE
DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, INC.
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Date: 12.21.06
GSAMP TRUST 2006-FM3
By: Xxxxx Fargo Bank,
National Association, not in
its individual capacity but
solely as Securities
Administrator and Master
Servicer, on behalf of GSAMP
Trust 2006-FM3
By: /s/ Xxxxxxxx X.X. Xxxxx
----------------------------------
Name: Xxxxxxxx X.X. Xxxxx
Title: Vice President
Date: 12.21.06
DRAFT CONFIRMATION FOR DISCUSSION PURPOSES ONLY
Xxxxxxx Sachs Capital Markets, L.P. | 00 Xxxxx Xxxxxx x Xxx Xxxx, Xxx Xxxx
00000 | Tel: 000-000-0000
swapconfirms2006: gsamp06-fm3_nuus6125a0.rev
[Xxxxxxx
Sachs
LOGO]
CONFIRMATION
DATE: December 7, 2006
TO: Xxxxxxx Xxxxx Mortgage Company, L.P. (Account No.: 760-02345)
Attention: Xxxxx Kong
TO: Xxxxxxx Xxxxx Mitsui Marine Derivative Products, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
FROM: Xxxxxxx Sachs Capital Markets, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
SUBJECT: Swap Transaction
REF NO: NUUS6125A0 (310000000) / (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. ("GSCM") and
Xxxxxxx Sachs Mortgage Company ("Counterparty"). This communication supersedes
and replaces all prior communications between the parties hereto with respect to
the Transaction described below. This communication constitutes a "Confirmation"
as referred to in paragraph 2. below.
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions"), as published by the International Swaps and Derivatives
Association, Inc. are incorporated into this Confirmation.
2. This Confirmation evidences a complete and binding agreement between GSCM and
Counterparty as to the terms of this Transaction to which this Confirmation
relates, and this Confirmation evidences the sole Transaction for the benefit of
the certificate holders of the GSAMP Trust 2006-FM3 ("GSAMP"). This Transaction
shall constitute a "Transaction" within the scope of, and this Confirmation
shall supplement, form a part of, and be subject to, an agreement in the form of
the 1992 ISDA Master Agreement (Multicurrency-Cross Border) (the "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 Section 5(b)(i)
Illegality, Section 5(b)(ii) Tax Event and Section 5(b)(iii) Tax Event Upon
Merger will be applicable to the parties (all other Termination Events will not
apply to either party) and (viii) 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 GSMMDP
and GSAMP pursuant to the terms of paragraph 4A. hereof, this Transaction shall
be governed by the ISDA Master Agreement between such parties dated as of
December 21, 2006.
3. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: USD 706,011,078.00 (subject to adjustment in
accordance with the Schedule set forth in Annex
I)
Trade Date: December 7, 2006
Effective Date: December 21, 2006
Termination Date: December 25, 2011, subject to adjustment in
accordance with the Modified Following Business
Day Convention
Initial Payment: USD 86,000 payable by GSCM to Counterparty on
December 21, 2006
Floating Amounts:
----------------
Floating Rate Payer: GSCM
Floating Rate Payer
Early Payment Dates: On the day which is one (1) Business Day prior
to each Floating Rate Period End Date.
Floating Rate Option: USD-LIBOR-BBA
Floating Rate Designated
Maturity: 1 Month
Floating Rate Spread: None
Floating Rate Reset Dates: The first day of each Calculation Period
Floating Rate Day Count
Fraction: Actual/360
Floating Rate Period
End Dates: Monthly, on the 25th day of each month,
commencing on January 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
Floating Rate Payer
Early Payment Dates: On the day which is one (1) Business Day prior
to each Floating Rate Period End Date.
Fixed Rate: 4.85%
Fixed Rate Day Count
Fraction: Actual/360
Fixed Rate Period End Dates: Monthly, on the 25th day of
each month, commencing on January 25, 2006 and
ending on the Termination Date, subject to
adjustment in accordance with the Modified
Following Business Day Convention.
Business Days: New York and Los Angeles
Calculation Agent: GSCM
Governing Law: New York law
4. Additional Provisions:
A. Assignment Provisions: It is acknowledged and agreed by the parties
that this Transaction shall be subject to assignment first by Counterparty to GS
Mortgage Securities Corp., then, simultaneously, (i) by GSCM to Xxxxxxx Xxxxx
Mitsui Marine Derivative Products, L.P. ("GSMMDP") and (ii) by GS Mortgage
Securities Corp. to GSAMP, and by GSAMP, through a collateral assignment, to
Xxxxx Fargo Bank, National Association (the "Securities Administrator"), as
securities administrator on behalf of the holders of the GSAMP Trust 2006-FM3
Mortgage Pass-Through Certificates (CUSIP Number: 36245T AA 3, 36245T AB 1,
36245T AC 9, 36245T AD 7, 36245T AE 5, 36245T AF 2, 36245T AG 0, 36245T AH 8,
36245T AJ 4, 36245T AK 1, 36245T AL 9, 36245T AM 7, 36245T AN 5, 36245T AP 0,
36245T AQ 8, 36245T AR 6, 36245T AS 4; the "Certificates") (each such assignee
is referred to herein as an "Assignee" and each such assignor is referred to
herein as an "Assignor"). These assignments shall occur on the day the Assignor
and Assignee agree to such assignment and provide written or oral notification
of the effective date of assignment to the relevant constant party, or, in the
case of a simultaneous double assignment, the other assignor and/or assignee, as
appropriate (the "Constant Party") (each such day hereinafter referred to as an
"Assignment Date"). Furthermore, with respect to each assignment of this
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 each subsequent
assignee of Counterparty and all references to the term GSCM herein shall be
deemed references to each subsequent assignee of "GSCM". On each Assignment
Date, Constant Party, the relevant Assignor and the relevant Assignee, in
consideration of the premises and the mutual covenants contained herein and for
other good and valuable consideration received, agree as follows:
(a) Assignor sells, assigns, transfers, and sets over to Assignee, its
successors and permitted assigns, all of its right, title, and interest in, to,
under, and in respect of, this 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 this 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 this 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 this Transaction after the Assignment Date, with the same force
and effect as if Assignee had been a party to this Transaction originally; it
being understood and agreed that, with respect to the Securities Administrator
as Assignee, the Securities Administrator is an assignee solely by reason of its
capacity as securities administrator (and not in its individual capacity) and
the Securities Administrator in its individual capacity shall have no obligation
or liability for payment of any indebtedness or expenses and shall not be
personally liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken hereunder.
(c) Constant Party consents to the sale, assignment and transfer by
Assignor and the assumption by Assignee referred to above. Constant Party
releases and discharges Assignor from, and agrees not to make any claim against
Assignor with respect to, any obligations of Assignor arising and to be
performed under and in respect of this 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 this 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 this 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 this Transaction as provided herein and
perform its obligations under this Transaction and has taken all necessary
action to authorize such assumption and performance; and (iii) such assumption
and this Transaction is its legal, valid, and binding obligation enforceable
against Assignee in accordance with the terms hereof.
5. The parties hereby agree (a) to check this revised Confirmation (Reference
No.: NUUS6125A0 (310000000) carefully and immediately upon receipt so that
errors or discrepancies can be promptly identified and rectified and (b) to
confirm that the foregoing correctly sets forth the terms of the agreement
between GSCM, GSMMDP and Counterparty with respect to the particular Transaction
to which this Confirmation relates, by manually signing this Confirmation and
providing the other information requested herein and immediately returning an
executed copy to Swap Administration, facsimile No. 000-000-0000.
Very truly yours,
XXXXXXX XXXXX CAPITAL MARKETS, L.P.
By: Xxxxxxx Sachs Capital Markets,
L.L.C. General Partner
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Agreed and Accepted By:
XXXXXXX XXXXX MITSUI MARINE DERIVATIVE
PRODUCTS, L.P.
By: GSMMDPGP, Inc.,
General Partner
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
Agreed and Accepted By:
Xxxxxxx Sachs Mortgage Company, L.P.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
Agreed and Accepted By:
Xxxxx Fargo Bank, National Association,
not in its individual capacity but solely as
Securities Administrator, on behalf of
GSAMP Trust 2006-FM3
By: /s/ Xxxxxxxx X.X. Xxxxx
--------------------------------------
Name: Xxxxxxxx X.X. Xxxxx
Title: Vice President
Annex I
Schedule
The applicable
For the Calculation Period USD Notional Amount
from and including:* to but excluding:* shall be:
-------------------------- ------------------ -------------------
December 21, 2006 January 25, 2007 706,011,078.00
January 25, 2007 February 25, 2007 696,775,754.00
February 25, 2007 March 25, 2007 685,450,732.00
March 25, 2007 April 25, 2007 672,054,506.00
April 25, 2007 May 25, 2007 656,623,308.00
May 25, 2007 June 25, 2007 639,211,638.00
June 25, 2007 July 25, 2007 619,892,579.00
July 25, 2007 August 25, 2007 598,757,886.00
August 25, 2007 September 25, 2007 575,919,032.00
September 25, 2007 October 25, 2007 551,508,397.00
October 25, 2007 November 25, 2007 525,749,007.00
November 25, 2007 December 25, 2007 501,173,115.00
December 25, 2007 January 25, 2008 477,732,093.00
January 25, 2008 February 25, 2008 455,372,981.00
February 25, 2008 March 25, 2008 434,045,313.00
March 25, 2008 April 25, 2008 413,700,994.00
April 25, 2008 May 25, 2008 394,294,196.00
May 25, 2008 June 25, 2008 375,781,246.00
June 25, 2008 July 25, 2008 358,120,521.00
July 25, 2008 August 25, 2008 341,272,357.00
August 25, 2008 September 25, 2008 325,190,413.00
September 25, 2008 October 25, 2008 309,810,789.00
October 25, 2008 November 25, 2008 294,905,510.00
November 25, 2008 December 25, 2008 260,249,788.00
December 25, 2008 January 25, 2009 230,266,390.00
January 25, 2009 February 25, 2009 204,430,817.00
February 25, 2009 March 25, 2009 193,258,101.00
March 25, 2009 April 25, 2009 182,708,117.00
April 25, 2009 May 25, 2009 172,723,898.00
May 25, 2009 June 25, 2009 163,273,950.00
June 25, 2009 July 25, 2009 154,328,583.00
July 25, 2009 August 25, 2009 145,859,801.00
August 25, 2009 September 25, 2009 141,633,587.00
September 25, 2009 October 25, 2009 138,034,252.00
October 25, 2009 November 25, 2009 131,101,748.00
November 25, 2009 December 25, 2009 124,535,454.00
December 25, 2009 January 25, 2010 118,315,026.00
January 25, 2010 February 25, 2010 112,421,460.00
February 25, 2010 March 25, 2010 106,836,845.00
March 25, 2010 April 25, 2010 101,544,283.00
April 25, 2010 May 25, 2010 96,527,831.00
May 25, 2010 June 25, 2010 91,604,869.00
June 25, 2010 July 25, 2010 86,927,980.00
July 25, 2010 August 25, 2010 82,493,281.00
August 25, 2010 September 25, 2010 78,287,650.00
September 25, 2010 October 25, 2010 74,298,706.00
October 25, 2010 November 25, 2010 70,514,760.00
November 25, 2010 December 25, 2010 66,924,777.00
December 25, 2010 January 25, 2011 63,518,335.00
January 25, 2011 February 25, 2011 60,285,600.00
February 25, 2011 March 25, 2011 57,217,276.00
March 25, 2011 April 25, 2011 54,304,589.00
April 25, 2011 May 25, 2011 51,539,254.00
May 25, 2011 June 25, 2011 48,913,439.00
June 25, 2011 July 25, 2011 46,419,746.00
July 25, 2011 August 25, 2011 44,051,190.00
August 25, 2011 September 25, 2011 41,801,167.00
September 25, 2011 October 25, 2011 39,663,434.00
October 25, 2011 November 25, 2011 37,632,091.00
November 25, 2011 December 25, 2011 35,700,765.00
------------
* Subject to adjustment in accordance with the Modified Following Business Day
Convention
EXHIBIT Y
FORM OF SERVICER REMITTANCE REPORT
Exhibit Y: 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
payment is due to the MM/DD/YYYY
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 was filed. MM/DD/YYYY
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 has been approved MM/DD/YYYY
by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. Either by MM/DD/YYYY
Dismissal, Discharged and/or a Motion For Relief Was
Granted.
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The Servicer MM/DD/YYYY
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 Scheduled To End/Close MM/DD/YYYY
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer with MM/DD/YYYY
instructions to begin foreclosure proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue Foreclosure MM/DD/YYYY
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a Foreclosure MM/DD/YYYY
Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected to occur. MM/DD/YYYY
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the foreclosure sale. 2 No commas(,)
or dollar
signs ($)
EVICTION_START_DATE The date the servicer initiates eviction of the borrower. MM/DD/YYYY
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the property MM/DD/YYYY
from the borrower.
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,)
or dollar
signs ($)
LIST_DATE The date an REO property is listed at a particular price. MM/DD/YYYY
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,)
or dollar
signs ($)
OFFER_DATE_TIME The date an offer is received by DA Admin or by the Servicer. MM/DD/YYYY
REO_CLOSING_DATE The date the REO sale of the property is scheduled to close. MM/DD/YYYY
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 performed. MM/DD/YYYY
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the property based on brokers 2
price opinion or appraisal.
REPAIRED_PROP_VAL The amount the property would be worth if repairs are 2
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 MM/DD/YYYY
Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,)
or dollar
signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim Payment MM/DD/YYYY
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,)
or dollar
signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,)
or dollar
signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By The Pool MM/DD/YYYY
Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,)
or dollar
signs ($)
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
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 HUD MM/DD/YYYY
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,)
or dollar
signs ($)
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,)
or dollar
signs ($)
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,)
or dollar
signs ($)
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
Exhibit 2: 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
Exhibit 2: 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
Exhibit 2: 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 Z
FORM OF MONTHLY DEFAULTED LOAN REPORT
Exhibit Z: 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 Officer Certificate
* 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 3A: 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 amount ___________________
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 Period
(Tax Date of Total Base
/Ins) Paid Coverage Paid Amount Penalties Interest
----- ---- -------- ----- ------ --------- --------
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
EXHIBIT AA
FORM OF REALIZED LOSS REPORT
Standard File Layout - Master Servicing
Column Name Description
------------------------------------------------------------------------------------------------------------------------------------
SER_INVESTOR_NBR A value assigned by the Servicer to define a group of loans.
LOAN_NBR A unique identifier assigned to each loan by the investor.
SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer. This may be different than the LOAN_NBR.
BORROWER_NAME The borrower name as received in the file. It is not separated by first and last name.
SCHED_PAY_AMT Scheduled monthly principal and scheduled interest payment that a borrower is expected to pay,
P&I constant.
NOTE_INT_RATE The loan interest rate as reported by the Servicer.
NET_INT_RATE The loan gross interest rate less the service fee rate as reported by the Servicer.
SERV_FEE_RATE The servicer's fee rate for a loan as reported by the Servicer.
SERV_FEE_AMT The servicer's fee amount for a loan as reported by the Servicer.
NEW_PAY_AMT The new loan payment amount as reported by the Servicer.
NEW_LOAN_RATE The new loan rate as reported by the Servicer.
ARM_INDEX_RATE The index the Servicer is using to calculate a forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal balance at the beginning of the processing cycle.
ACTL_END_PRIN_BAL The borrower's actual principal balance at the end of the processing cycle.
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle that the borrower's next payment is due to the Servicer,
as reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount to be applied.
SERV_CURT_DATE_1 The curtailment date associated with the first curtailment amount.
CURT_ADJ_ AMT_1 The curtailment interest on the first curtailment amount, if applicable.
SERV_CURT_AMT_2 The second curtailment amount to be applied.
SERV_CURT_DATE_2 The curtailment date associated with the second curtailment amount.
CURT_ADJ_ AMT_2 The curtailment interest on the second curtailment amount, if applicable.
SERV_CURT_AMT_3 The third curtailment amount to be applied.
SERV_CURT_DATE_3 The curtailment date associated with the third curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on the third curtailment amount, if applicable.
PIF_AMT The loan "paid in full" amount as reported by the Servicer.
PIF_DATE The paid in full date as reported by the Servicer.
ACTION_CODE The standard FNMA numeric code used to indicate the default/delinquent status of a particular
loan.
INT_ADJ_AMT The amount of the interest adjustment as reported by the Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, if applicable.
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if applicable.
LOAN_LOSS_AMT The amount the Servicer is passing as a loss, if applicable.
SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount due at the beginning of the cycle date to be passed
through to investors.
SCHED_END_PRIN_BAL The scheduled principal balance due to investors at the end of a processing cycle.
SCHED_PRIN_AMT The scheduled principal amount as reported by the Servicer for the current cycle -- only
applicable for Scheduled/Scheduled Loans.
SCHED_NET_INT The scheduled gross interest amount less the service fee amount for the current cycle as reported
by the Servicer -- only applicable for Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount collected by the Servicer for the current reporting cycle -- only
applicable for Actual/Actual Loans.
ACTL_NET_INT The actual gross interest amount less the service fee amount for the current reporting cycle as
reported by the Servicer -- only applicable for Actual/Actual Loans.
PREPAY_PENALTY_ AMT The penalty amount received when a borrower prepays on his loan as reported by the Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the loan waived by the servicer.
MOD_DATE The Effective Payment Date of the Modification for the loan.
MOD_TYPE The Modification Type.
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and interest advances made by Servicer.
(TABLE CONTINUED)
Column Name Decimal Format Comment Max Size
----------------------------------------------------------------------------------------------------------------
SER_INVESTOR_NBR Text up to 10 digits 20
LOAN_NBR Text up to 10 digits 10
SERVICER_LOAN_NBR Text up to 10 digits 10
BORROWER_NAME Maximum length of 30 (Last, First) 30
SCHED_PAY_AMT 2 No commas(,) or dollar signs ($) 11
NOTE_INT_RATE 4 Max length of 6 6
NET_INT_RATE 4 Max length of 6 6
SERV_FEE_RATE 4 Max length of 6 6
SERV_FEE_AMT 2 No commas(,) or dollar signs ($) 11
NEW_PAY_AMT 2 No commas(,) or dollar signs ($) 11
NEW_LOAN_RATE 4 Max length of 6 6
ARM_INDEX_RATE 4 Max length of 6 6
ACTL_BEG_PRIN_BAL 2 No commas(,) or dollar signs ($) 11
ACTL_END_PRIN_BAL 2 No commas(,) or dollar signs ($) 11
BORR_NEXT_PAY_DUE_DATE MM/DD/YYYY 10
SERV_CURT_AMT_1 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_1 MM/DD/YYYY 10
CURT_ADJ_ AMT_1 2 No commas(,) or dollar signs ($) 11
SERV_CURT_AMT_2 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_2 MM/DD/YYYY 10
CURT_ADJ_ AMT_2 2 No commas(,) or dollar signs ($) 11
SERV_CURT_AMT_3 2 No commas(,) or dollar signs ($) 11
SERV_CURT_DATE_3 MM/DD/YYYY 10
CURT_ADJ_AMT_3 2 No commas(,) or dollar signs ($) 11
PIF_AMT 2 No commas(,) or dollar signs ($) 11
PIF_DATE MM/DD/YYYY 10
Action Code Key: 15=Bankruptcy, 30=Foreclosure,
, 60=PIF, 63=Substitution, 65=Repurchase,70=REO 2
ACTION_CODE
INT_ADJ_AMT 2 No commas(,) or dollar signs ($) 11
SOLDIER_SAILOR_ADJ_AMT 2 No commas(,) or dollar signs ($) 11
NON_ADV_LOAN_AMT 2 No commas(,) or dollar signs ($) 11
LOAN_LOSS_AMT 2 No commas(,) or dollar signs ($) 11
SCHED_BEG_PRIN_BAL 2 No commas(,) or dollar signs ($) 11
SCHED_END_PRIN_BAL 2 No commas(,) or dollar signs ($) 11
SCHED_PRIN_AMT 2 No commas(,) or dollar signs ($) 11
SCHED_NET_INT 2 No commas(,) or dollar signs ($) 11
ACTL_PRIN_AMT 2 No commas(,) or dollar signs ($) 11
ACTL_NET_INT 2 No commas(,) or dollar signs ($) 11
PREPAY_PENALTY_ AMT 2 No commas(,) or dollar signs ($) 11
PREPAY_PENALTY_ WAIVED 2 No commas(,) or dollar signs ($) 11
MOD_DATE MM/DD/YYYY 10
MOD_TYPE Varchar - value can be alpha or numeric 30
DELINQ_P&I_ADVANCE_AMT 2 No commas(,) or dollar signs ($) 11
EXHIBIT BB
PURCHASE AGREEMENT
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2006-FM3
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-FM3
----------
Purchase Agreement
Dated as of December 21, 2006
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
GS Mortgage Securities Corp. (the "Company") proposes to cause GSAMP
Trust 2006-FM3 (the "Trust") to issue its Mortgage Pass-Through Certificates,
Series 2006-FM3 (the "Certificates"), pursuant to a Pooling and Servicing
Agreement, dated as of December 1, 2006 (the "Pooling and Servicing Agreement"),
by and among the Company, as depositor, Fremont Investment & Loan, as
responsible party and as servicer ("Fremont"), Deutsche Bank National Trust
Company, as trustee (the "Trustee") and Xxxxx Fargo Bank, N.A., as Master
Servicer and Securities Administrator ("Xxxxx Fargo"), and proposes to sell to
you (the "Initial Purchaser") the Class B-1 and Class B-2 Certificates (the
"Privately Offered Certificates") and the Class X, Class P and Class C
Certificates (the "Non-Offered Private Certificates and together with the
Privately Offered Certificates, the "Private Certificates"), specified on
Schedule I hereto. The Private Certificates, together with the Trust's Mortgage
Pass-Through Certificates, Class X-0, Xxxxx X-0X, Xxxxx X-0X, Class A-2C, Class
A-2D, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class R, Class RC and Class RX Certificates
(collectively, the "Publicly Offerered Certificates"), will represent in the
aggregate the entire beneficial ownership interest in the assets of the Trust
primarily consisting of a segregated pool of mortgage loans and certain other
related assets.
The Company purchased certain mortgage loans (the "Mortgage Loans")
from Fremont, pursuant to that certain Amended and Restated Mortgage Loan
Purchase and Warranties Agreement, dated as of January 1, 2006, as amended by
Amendment No. 1, dated as of August 1, 2006, each by and between GSMC, as
purchaser, and Fremont, as seller.
The Privately Offered Certificates were privately offered by the
Initial Purchaser pursuant to an Offering Circular, dated December 20, 2006 (the
"Offering Circular").
Certain Mortgage Loan documents, including the mortgage notes and
mortgages, will be held by the Trustee pursuant to the Pooling and Servicing
Agreement. The Privately Offered Certificates are described more fully in
Schedule I hereto and in the Offering Circular. Capitalized terms used but not
defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
1. The Company represents and warrants to, and agrees with, the
Initial Purchaser that:
(a) Since the date as of which information is given in the Offering
Circular, the Offering Circular did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply
to any statement or omission made in reliance upon and in conformity with
information furnished in writing to the Company by the Initial Purchaser
expressly for use in the Offering Circular;
(b) Registration of the Private Certificates under the Securities
Act of 1933, as amended (the "Act"), is not required in connection with
the offer, issuance, sale or delivery of the Private Certificates;
(c) Since the date as of which information is given in the Offering
Circular, there has not been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Offering Circular;
(d) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
and has all requisite power and authority (corporate and other) to own its
properties and to conduct its business as described in the Offering
Circular;
(e) At the Time of Delivery (as defined in Section 4 hereof), the
Pooling and Servicing Agreement and the Assignment Agreement will have
been duly authorized, executed and delivered and will constitute a valid
and legally binding obligation of the Company, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general principles of equity;
(f) When the Private Certificates are issued, executed,
authenticated and delivered pursuant to this Purchase Agreement (the
"Agreement") and the Pooling and Servicing Agreement, the Private
Certificates will have been duly authorized, executed, authenticated,
issued and delivered and will be entitled to the benefits of the Pooling
and Servicing Agreement; and the Private Certificates and the Pooling and
Servicing Agreement will conform to the descriptions thereof in the
Offering Circular;
(g) The issue and sale of the Private Certificates, the compliance
by the Company with all of the provisions of this Agreement, the Pooling
and Servicing Agreement and the Assignment Agreement, and the consummation
of the transactions herein and therein contemplated, will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the Company
is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
the By-Laws of the Company or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company, or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Private Certificates or the consummation by the Company of the other
transactions contemplated by this Agreement, the Pooling and Servicing
Agreement or the Assignment Agreement, except such as have been obtained
under the Act, and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Private
Certificates by the Initial Purchaser;
(h) The statements set forth in the Offering Circular under the
caption "Description of the Offered Private Certificates," insofar as they
purport to constitute a summary of the terms of the Privately Offered
Certificates and insofar as they purport to describe the provisions of the
documents referred to therein, are accurate, complete and fair;
(i) Other than as set forth or contemplated in the Offering
Circular, there are no legal or governmental proceedings pending to which
the Company is a party or of which any property of the Company is the
subject that, if determined adversely to the Company, would individually
or in the aggregate have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, properties or
prospects of the Company, and to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(j) The Company will, at the Time of Delivery, own the Mortgage
Loans, free and clear of any lien, mortgage, pledge, charge, security
interest or other encumbrance, and, at the Time of Delivery, the Company
will have full power and authority to sell and deliver the Mortgage Loans
to the Trustee under the Pooling and Servicing Agreement and at the Time
of Delivery will have duly authorized such assignment and delivery to the
Trustee by all necessary action;
(k) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement, the
Assignment Agreement, the Pooling and Servicing Agreement and the Private
Certificates will have been paid at or prior to the Time of Delivery;
(l) At the Time of Delivery, the Private Certificates will have been
duly and validly assigned and delivered by the Company to the Trustee;
(m) The Trust will not at the Time of Delivery be required to be
registered under the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(n) The Company is not and at the Time of Delivery will not be an
"investment company," as such term is defined in the Investment Company
Act;
(o) When the Private Certificates are issued and delivered pursuant
to this Agreement, the Private Certificates will not be of the same Class
(within the meaning of Rule 144A under the Act) as securities that are
listed on a national securities exchange, registered under Section 6 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
quoted in a U.S. automated inter-dealer quotation system; and
(p) Within the preceding six months, neither the Company nor any
other person acting on behalf of the Company has offered or sold to any
person any of the Private Certificates, or any securities of the same or a
similar Class as the Private Certificates, other than the Private
Certificates offered or sold to the Initial Purchaser hereunder. The
Company will take reasonable precautions designed to insure that any offer
or sale, direct or indirect, of any of the Private Certificates or any
substantially similar security issued by the Trust, within six months
subsequent to the date on which the distribution of the Private
Certificates has been completed (as notified to the Company by the Initial
Purchaser), is made under restrictions and other circumstances reasonably
designed not to effect the status of the offer and sale of the Private
Certificates contemplated by this Agreement as transactions exempt from
the registration provisions of the Act.
2. The Initial Purchaser represents and warrants to, and agrees
with, the Depositor, that:
(a) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), the Initial Purchaser has not made and will not make an offer of
Certificates to the public in that Relevant Member State prior to the
publication of an offering circular in relation to the Privately Offered
Certificates which has been approved by the competent authority in that
Relevant Member State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in that Relevant
Member State, all in accordance with the Prospectus Directive, except that
it may, with effect from and including the relevant implementation date,
make an offer of Certificates to the public in that Relevant Member State
at any time:
(A) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
(B) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year;
(2) a total balance sheet of more than (euro)43,000,000 and (3) an
annual net turnover of more than (euro)50,000,000, as shown in its
last annual or consolidated accounts; or
(C) in any other circumstances which do not require the
publication by the issuer of a offering circular pursuant to Article
3 of the Prospectus Directive.
For the purposes of this provision, the expression an "offer of
Certificates to the public" in relation to any certificates in any
Relevant Member State means the communication in any form and by any means
of sufficient information on the terms of the offer and the Certificates
to be offered so as to enable an investor to decide to purchase or
subscribe the Certificates, as the same may be varied in that Member State
by any measure implementing the Prospectus Directive in that Member State
and the expression "Prospectus Directive" means the European Commission
Directive 2003/71/EC and includes any relevant implementing measure in
each Relevant Member State.
(b) The Initial Purchaser has only communicated or caused to be
communicated and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the United Kingdom Financial Services and Markets
Act 2000 (the "FSMA")) received by it in connection with the issue or sale
of the Certificates in circumstances in which Section 21(1) of the FSMA
does not apply to the issuer.
(c) The Initial Purchaser has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it in
relation to the Certificates in, from or otherwise involving the United
Kingdom.
3. Subject to the terms and conditions herein set forth, the Company
agrees to sell to the Initial Purchaser, and the Initial Purchaser agrees to
purchase from the Company, at a purchase price determined in accordance with
Schedule II hereto, the principal amount of Private Certificates. Upon the
authorization by you of the release of the Private Certificates, the Initial
Purchaser proposes to offer the Privately Offered Certificates for sale to
institutional investors as set forth in the Offering Circular. The Initial
Purchaser hereby represents and warrants to, and agrees with, the Company that:
(a) It will offer and sell the Privately Offered Certificates only
to persons it reasonably believes are "qualified institutional buyers"
("QIBs") within the meaning of Rule 144A under the Act in transactions
meeting the requirements of Rule 144A;
(b) It is a QIB;
(c) It will not offer or sell the Privately Offered Certificates by
any form of general solicitation or general advertising, including but not
limited to the methods described in Rule 502(c) under the Act; and
(d) At the time of the Initial Purchaser's delivery of the Privately
Offered Certificates to the Company, the Initial Purchaser (i) will have
good and marketable title to the Privately Offered Certificates, free and
clear of any Liens, (ii) will not have assigned to any person any of its
right, title or interest in the Privately Offered Certificates, and (iii)
will have the power and authority to transfer the Privately Offered
Certificates to the Depositor and upon such delivery of the Privately
Offered Certificates, the Company will have acquired ownership of all the
Initial Purchaser's right, title and interest in and to the Privately
Offered Certificates, free of Liens.
4. (a) Except as set forth in this paragraph, the Privately Offered
Certificates to be purchased by the Initial Purchaser will be represented by one
or more definitive global Certificates in book-entry form, which will be
deposited by or on behalf of the Company with The Depository Trust Company
("DTC") or its designated custodian. The Class C, Class X and Class P
Certificates will be represented by one or more definitive certificates in
physical form. The Company will deliver such Privately Offered Certificates to
the Initial Purchaser, against payment by or on behalf of the Initial Purchaser
of the purchase price therefor by wire transfer to the Company of Federal (same
day) funds, by causing DTC to credit the Privately Offered Certificates to the
account of the Initial Purchaser at DTC. The Company will cause the certificates
representing such Private Certificates to be made available to the Initial
Purchaser for checking at least twenty-four hours prior to the Time of Delivery
at an office designated by the Initial Purchaser (the "Designated Office"). The
time and date of such delivery and payment shall be 10:00 a.m., New York City
time, on December 21, 2006, or such other time and date as the Initial Purchaser
and the Company may agree upon in writing. Such time and date are herein called
the "Time of Delivery" and such date is herein called the "Closing Date."
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Private Certificates and any additional documents
requested by the Initial Purchaser pursuant to Section 7(k) hereof, will
be delivered at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP
("Cadwalader") at Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the
"Closing Location"), and the Private Certificates will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at
the Closing Location at 3:00 p.m., New York City time, on the New York
Business Day next preceding the Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York City are generally authorized or
obligated by law or executive order to close.
5. The Company agrees with the Initial Purchaser:
(a) To make no amendment or any supplement to the Offering Circular
as amended or supplemented prior to the Closing Date, without furnishing
the Initial Purchaser with a copy of the proposed form thereof and
providing the Initial Purchaser with a reasonable opportunity to review
the same; and during such same period to advise the Initial Purchaser,
promptly after it receives notice thereof, of the suspension of the
qualification of any of the Privately Offered Certificates for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose; and, in the event of the issuance of any
order suspending any such qualification, to use promptly its best efforts
to obtain its withdrawal;
(b) Promptly from time to time to take such action as the Initial
Purchaser may reasonably request in order to qualify the Privately Offered
Certificates for offering and sale under the securities laws of such
states as the Initial Purchaser may request and to continue such
qualifications in effect so long as necessary under such laws for the
distribution of the Privately Offered Certificates, provided that in
connection therewith neither the Trust nor the Company shall be required
to qualify to do business, or to file a general consent to service of
process in any jurisdiction, and provided, further, that the expense of
maintaining any such qualification more than one year from the Closing
Date with respect to the Privately Offered Certificates shall be at the
Initial Purchaser's expense;
(c) To furnish the Initial Purchaser with copies of the Offering
Circular (including exhibits), as amended or supplemented, in such
quantities as the Initial Purchaser may from time to time reasonably
request; and if, before a period of six months shall have elapsed after
the Closing Date, either (i) any event shall have occurred as a result of
which the Offering Circular would include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or (ii) for any other reason it shall be
necessary during such same period to amend or supplement the Offering
Circular, as amended or supplemented, to notify the Initial Purchaser and
upon its request to prepare and furnish without charge to the Initial
Purchaser and to any dealer in securities as many copies as the Initial
Purchaser may from time to time reasonably request an amendment or a
supplement to the Offering Circular which will correct such statement or
omission or effect such compliance; and at any time six months or more
after the Closing Date, upon the Initial Purchaser's request, but at its
own expense, to prepare and deliver to the Initial Purchaser as many
copies as the Initial Purchaser may request of an amended or supplemented
offering document complying with the Act;
(d) So long as any of the Privately Offered Certificates are
outstanding, to furnish the Initial Purchaser copies of all reports or
other communications (financial or other) furnished to Holders of the
Privately Offered Certificates, and to deliver to the Initial Purchaser
during such same period, (i) copies of each amendment to any of the
Pooling and Servicing Agreement and the Assignment Agreement; and (ii)
such additional information concerning the business and financial
condition of the Company or the Trust as the Initial Purchaser may from
time to time reasonably request;
(e) During the period beginning from the date hereof and continuing
to and including the later of (i) the termination of trading restrictions
for the Privately Offered Certificates, as notified to the Company by the
Initial Purchaser, and (ii) the Time of Delivery for the Privately Offered
Certificates, not to offer, sell, contract to sell or otherwise dispose of
any securities of the Company that mature more than one year after the
Time of Delivery and that are substantially similar to the Privately
Offered Certificates, without the prior written consent of the Initial
Purchaser;
(f) To furnish at its expense, upon request, to Holders of the
Privately Offered Certificates and prospective purchasers of securities
information (the "Additional Trust Information") satisfying the
requirements of subsection (d)(4)(i) of Rule 144A under the Act;
(g) If requested by you, to use its best efforts to cause the
Privately Offered Certificates to be eligible for the PORTAL trading
system of the National Association of Securities Dealers, Inc. ("PORTAL");
and
(h) Not to be or become an open-end investment company, unit
investment trust, closed-end investment company or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act.
6. The Company covenants and agrees with the Initial Purchaser that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of counsel and accountants for the Company in
connection with the issue of the Private Certificates and all other expenses in
connection with the preparation and printing of all amendments and supplements
thereto and the mailing and delivery of copies thereof to the Initial Purchaser
and dealers; (ii) the cost of printing or producing this Agreement, the Pooling
and Servicing Agreement, any Blue Sky Supplement, any term sheets, any
computational materials, the Offering Circular and any other document produced
in connection with the offering, purchase, sale and delivery of the Privately
Offered Certificates; (iii) all expenses in connection with the qualification of
the Privately Offered Certificates for offering and sale under state securities
laws as provided in Section 5(c) hereof, including the fees and disbursements of
counsel for the Initial Purchaser in connection with such qualification and in
connection with the Blue Sky Supplement; (iv) any fees charged by securities
rating services for rating the Privately Offered Certificates; (v) the cost of
preparing the Private Certificates; (vi) the fees and expenses of the Trustee
and of any agent of the Trustee and the fees and disbursements of counsel for
the Trustee in connection with the Pooling and Servicing Agreement, the
Assignment Agreement and the Private Certificates; (vii) any cost incurred in
connection with the designation of the Privately Offered Certificates for
trading in PORTAL; and (viii) all other costs and expenses incident to the
performance of the Company's obligations hereunder that are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section 6, Section 8 and Section 11 hereof, the
Initial Purchaser will pay all of its own costs and expenses, including the fees
of its counsel, transfer taxes on resale of any of the Private Certificates by
it and any advertising expenses connected with any offers it may make.
7. The obligations of the Initial Purchaser shall be subject, in the
discretion of the Initial Purchaser, to the condition that all representations
and warranties and other statements of the Company herein are, at and as of the
Time of Delivery, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Pooling and Servicing Agreement, the Assignment Agreement
and all of the other agreements identified in such agreements shall have
been duly entered into by all of the respective parties;
(b) Cadwalader shall have furnished to the Initial Purchaser its
written opinions, dated the Time of Delivery, in form and substance
satisfactory to the Initial Purchaser;
(c) In-house counsel for the Company shall have furnished to the
Initial Purchaser a written opinion, dated the Time of Delivery, in form
and substance satisfactory to the Initial Purchaser;
(d) Counsel for the Fremont satisfactory to the Initial Purchaser
shall have furnished to the Initial Purchaser its written opinion, dated
the Time of Delivery, in form and substance satisfactory to the Initial
Purchaser and counsel for the Initial Purchaser;
(e) [Reserved];
(f) Counsel for the Trustee satisfactory to the Initial Purchaser
shall have furnished to the Initial Purchaser its written opinion, dated
as of the Time of Delivery, in form and substance satisfactory to the
Initial Purchaser and counsel for the Initial Purchaser;
(g) The independent accountants of the Company or other accountants
acceptable to the Initial Purchaser shall have furnished to the Initial
Purchaser a letter or letters, dated on the date hereof, and a letter or
letters, dated the Time of Delivery, respectively, containing statements
and information of the type customarily included in accountants' "comfort
letters" and "agreed upon procedures letters" with respect to certain
financial information contained in the Offering Circular, in each case as
to such matters as the Initial Purchaser may reasonably request and in
form and substance satisfactory to the Initial Purchaser;
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Offering Circular as amended
prior to the Time of Delivery any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Offering Circular as amended prior to the Time of Delivery, and (ii) since
the respective dates as of which information is given in the Offering
Circular as amended prior to the Time of Delivery there shall not have
been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated
in the Offering Circular as amended prior to the Time of Delivery, the
effect of which, in any such case described in clause (i) or (ii), is in
the judgment of the Initial Purchaser so material and adverse as to make
it impracticable or inadvisable to proceed with the offering or the
delivery of the Privately Offered Certificates on the terms and in the
manner contemplated in the Offering Circular as first amended or
supplemented;
(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or preferred
stock by any "nationally recognized statistical rating organization," as
that term is defined by the Securities and Exchange Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities or preferred stock;
(j) On or after the date hereof, there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; or (iii) the outbreak or escalation
of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such
event specified in this clause (iii) in the judgment of the Initial
Purchaser makes it impracticable or inadvisable to proceed with the
placement or the delivery of the Privately Offered Certificates on the
terms and in the manner contemplated in the Offering Circular;
(k) The Company shall have furnished or caused to be furnished to
the Initial Purchaser at the Time of Delivery certificates of its officers
satisfactory to the Initial Purchaser as to the accuracy in all material
respects of its representations and warranties herein at and as of such
Time of Delivery, as to the performance of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in Section 7(a) above and as to such other matters as
the Initial Purchaser may reasonably request;
(l) The Initial Purchaser shall have received evidence satisfactory
to it that the Privately Offered Certificates are rated in the rating
category or categories specified on Schedule I hereto by the rating agency
or agencies specified on Schedule I hereto; and
(m) All opinions, certificates and other documents incident to, and
all proceedings in connection with the transactions contemplated by, this
Agreement, the Assignment Agreement and the Pooling and Servicing
Agreement shall be satisfactory in form and substance to the Initial
Purchaser and its special counsel.
The Initial Purchaser and its special counsel shall have received
copies of all documents and other information as they may reasonably request, in
form and substance satisfactory to the Initial Purchaser and its special
counsel, with respect to such transactions and the taking of all proceedings in
connection therewith.
8. (a) The Company will indemnify and hold harmless the Initial
Purchaser against any losses, claims, damages or liabilities, joint or several,
to which the Initial Purchaser may become subject, under the Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in the Offering
Circular as amended or supplemented or any other offering material relating to
the Privately Offered Certificates, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Initial Purchaser for
any legal or other expenses reasonably incurred by the Initial Purchaser in
connection with investigating or defending any such action or claim; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any such document in reliance upon and in conformity with written
information furnished to the Company by the Initial Purchaser expressly for use
in the Offering Circular.
(b) The Initial Purchaser will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Offering
Circular as amended or supplemented or any other offering material
relating to the Privately Offered Certificates or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in any such document in reliance upon and in conformity with written
information furnished to the Company by the Initial Purchaser expressly
for use therein.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under
such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party shall not be liable to such indemnified party under
such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Initial Purchaser on the other from the offering of
the Privately Offered Certificates to which such loss, claim, damage or
liability (or actions in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice
required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
the Initial Purchaser on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Initial Purchaser on the other shall be deemed to be in the
same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Initial Purchaser. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company on the one hand or the Initial Purchaser on the other and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the Initial Purchaser agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d),
the Initial Purchaser shall not be required to contribute any amount in
excess of the amount by which the total price at which the Private
Certificates purchased by it exceeds the amount of any damages which the
Initial Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Initial Purchaser within the meaning of the Act; and the
obligations of the Initial Purchaser with respect to any Certificates
under this Section 8 shall be in addition to any liability which the
Initial Purchaser may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the Initial Purchaser as set
forth in this Agreement shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made in connection
with the issuance of Certificates by or on behalf of the Initial Purchaser or
any controlling person of the Initial Purchaser, or the Company, or any officer
or director or controlling person of the Company and shall survive delivery of
and payment for the Private Certificates.
10. If for any reason the Private Certificates are not delivered by
or on behalf of the Trustee as provided herein, other than by the Initial
Purchaser's failure to comply with its obligations hereunder, the Company will
reimburse the Initial Purchaser for all out-of-pocket expenses, including fees
and disbursements of counsel, reasonably incurred by the Initial Purchaser in
making preparations for the purchase, sale and delivery of the Private
Certificates, but the Company shall be under no further liability to the Initial
Purchaser with respect to the Private Certificates except as provided in Section
6 and Section 8 hereof.
11. [Reserved.]
12. All statements, requests, notices and agreements hereunder shall
be in writing or by telegram if promptly confirmed in writing, and shall be
sufficient in all respects, if delivered or sent by registered mail, if to the
Initial Purchaser, to the address of the Initial Purchaser set forth above; if
to the Company, to the address of the Company set forth in the Offering
Circular, Attention: President.
13. This Agreement shall be binding upon, and inure solely to the
benefit of the Initial Purchaser, the Company and, to the extent provided in
Section 8 hereof, the officers and directors of the Company and each person who
controls the Company or the Initial Purchaser, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Private Certificates from the Initial Purchaser shall be deemed a
successor or assign merely by reason of such purchase.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
[SIGNATURE PAGE FOLLOWS]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned two counterparts hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Initial Purchaser.
Very truly yours,
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
----------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
Accepted as of the date hereof:
XXXXXXX, XXXXX & CO.
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
SCHEDULE I
Approximate Annual S&P/
Initial Class Certificate Moody's
Class Principal Balance Interest Rate Type Ratings
----- ----------------- ------------- --------------- -------
B-1 $8,627,000(1) Variable(2) Subordinate BB+/Ba1
B-2 $6,831,000(1) Variable(2) Subordinate BB/Ba2
X (3) (3) Excess Cashflow N/A
P N/A(4) N/A(4) Prepayment N/A
Premiums
------------
(1) Subject to a variance of +/-10%.
(2) The Class B-1 and Class B-2 Certificates each will have a pass-through
rate equal to the lesser of (i) One-Month LIBOR plus 2.5000% (3.7500%
after the first distribution date on which the optional clean-up call is
exercisable), and (ii) the WAC Cap.
(3) The Class X Certificates will have an initial principal balance of
approximately $12,222,018 representing the initial overcollateralization,
but interest will not accrue on that balance. A 100% interest in the Class
X Certificates is being offered hereby.
(4) A 100% interest in the Class P Certificates is being offered hereby.
SCHEDULE II
Purchase Price
Class Purchase Price
----- --------------
B-1 $ 6,950,325.30
B-2 $ 4,586,367.56
X $34,271,133.95
C $ 100.00
P $ 100.00
