BEAR STEARNS ASSET BACKED SECURITIES I LLC, Depositor, EMC MORTGAGE CORPORATION, Seller and Company, LASALLE BANK NATIONAL ASSOCIATION, Master Servicer and Securities Administrator, and CITIBANK, N.A. Trustee POOLING AND SERVICING AGREEMENT Dated as...
BEAR
XXXXXXX ASSET BACKED SECURITIES I LLC,
Depositor,
EMC
MORTGAGE CORPORATION,
Seller
and Company,
LASALLE
BANK NATIONAL ASSOCIATION,
Master
Servicer and Securities Administrator,
and
CITIBANK,
N.A.
Trustee
Dated
as
of October 1, 2006
MORTGAGE-BACKED
CERTIFICATES, SERIES 2006-10
TABLE
OF CONTENTS
|
ARTICLE
I
|
|
|
DEFINITIONS
|
|
|
Section
1.01
|
Defined
Terms.
|
|
Section
1.02
|
Allocation
of Certain Interest Shortfalls.
|
|
ARTICLE
II
|
|
|
CONVEYANCE
OF TRUST FUND REPRESENTATIONS AND WARRANTIES
|
|
|
Section
2.01
|
Conveyance
of Trust Fund.
|
|
Section
2.02
|
Acceptance
of the Mortgage Loans.
|
|
Section
2.03
|
Representations,
Warranties and Covenants of the Company, the Master Servicer, and
EMC as
Seller.
|
|
Section
2.04
|
Representations
and Warranties of the Depositor.
|
|
Section
2.05
|
Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
|
|
Section
2.06
|
Countersignature
and Delivery of Certificates.
|
|
Section
2.07
|
Purposes
and Powers of the Trust.
|
|
ARTICLE
III
|
|
|
ADMINISTRATION
AND SERVICING OF EMC MORTGAGE LOANS BY THE COMPANY
|
|
|
Section
3.01
|
The
Company.
|
|
Section
3.02
|
Due-on-Sale
Clauses; Assumption Agreements.
|
|
Section
3.03
|
Subservicers.
|
|
Section
3.04
|
Documents,
Records and Funds in Possession of the Company to Be Held for
Trustee.
|
|
Section
3.05
|
Optional
Purchase of Certain Mortgage Loans.
|
|
Section
3.06
|
Release
of Mortgage Files.
|
|
Section
3.07
|
Maintenance
of Hazard Insurance.
|
|
Section
3.08
|
Presentment
of Claims and Collection of Proceeds.
|
|
Section
3.09
|
Books
and Records.
|
|
Section
3.10
|
Custodians
to Retain Possession of Certain Insurance Policies and
Documents.
|
|
Section
3.11
|
Fidelity
Bond, Errors and Omissions Insurance.
|
|
Section
3.12
|
Realization
Upon Defaulted Mortgage Loans; Determination of Excess Liquidation
Proceeds and Realized Losses; Repurchases of Certain Mortgage
Loans.
|
|
Section
3.13
|
Servicing
Compensation.
|
|
Section
3.14
|
REO
Property.
|
|
Section
3.15
|
Liquidation
Reports.
|
|
Section
3.16
|
Annual
Statement as to Compliance.
|
|
Section
3.17
|
Assessments
of Compliance and Attestation Reports.
|
|
Section
3.18
|
Reports
Filed with Securities and Exchange Commission.
|
|
Section
3.19
|
Intention
of the Parties and Interpretation.
|
|
ARTICLE
IV
|
|
|
MASTER
SERVICING OF MORTGAGE LOANS BY MASTER SERVICER
|
|
|
Section
4.01
|
Master
Servicer.
|
|
Section
4.02
|
Monitoring
of Company and Servicers.
|
|
Section
4.03
|
Fidelity
Bond.
|
|
Section
4.04
|
Power
to Act; Procedures.
|
|
Section
4.05
|
Due-on-Sale
Clauses; Assumption Agreements.
|
|
Section
4.06
|
Documents,
Records and Funds in Possession of Master Servicer, Company and Servicer
To Be Held for Trustee.
|
|
Section
4.07
|
Presentment
of Claims and Collection of Proceeds.
|
|
Section
4.08
|
Realization
Upon Defaulted Mortgage Loans.
|
|
Section
4.09
|
Compensation
of the Master Servicer.
|
|
Section
4.10
|
REO
Property.
|
|
Section
4.11
|
UCC.
|
|
Section
4.12
|
Reserve
Fund; Payments to and from Swap Administrator; Supplemental Interest
Trust.
|
|
Section
4.13
|
Tax
Treatment of Class IO Distribution Amounts in the Event of
Resecuritization of Class A, Class M or Class B
Certificates.
|
|
ARTICLE
V
|
|
|
ACCOUNTS
|
|
|
Section
5.01
|
Collection
of Mortgage Loan Payments; Protected Account.
|
|
Section
5.02
|
Permitted
Withdrawals From the Protected Account.
|
|
Section
5.03
|
Reports
to the Master Servicer.
|
|
Section
5.04
|
Collection
of Taxes; Assessments and Similar Items; Escrow
Accounts.
|
|
Section
5.05
|
Protected
Accounts.
|
|
Section
5.06
|
Master
Servicer Collection Account.
|
|
Section
5.07
|
Permitted
Withdrawals and Transfers from the Master Servicer Collection
Account.
|
|
Section
5.08
|
Distribution
Account.
|
|
Section
5.09
|
Permitted
Withdrawals and Transfers from the Distribution
Account.
|
|
ARTICLE
VI
|
|
|
DISTRIBUTIONS
AND ADVANCES
|
|
|
Section
6.01
|
Advances.
|
|
Section
6.02
|
Compensating
Interest Payments.
|
|
Section
6.03
|
REMIC
Distributions.
|
|
Section
6.04
|
Distributions.
|
|
Section
6.05
|
Allocation
of Realized Losses.
|
|
Section
6.06
|
Monthly
Statements to Certificateholders.
|
|
Section
6.07
|
REMIC
Designations and REMIC Distributions.
|
|
ARTICLE
VII
|
|
|
THE
CERTIFICATES
|
|
|
Section
7.01
|
The
Certificates.
|
|
Section
7.02
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
|
Section
7.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
Section
7.04
|
Persons
Deemed Owners.
|
|
Section
7.05
|
Access
to List of Certificateholders’ Names and Addresses.
|
|
Section
7.06
|
Book-Entry
Certificates.
|
|
Section
7.07
|
Notices
to Depository.
|
|
Section
7.08
|
Definitive
Certificates.
|
|
Section
7.09
|
Maintenance
of Office or Agency.
|
|
ARTICLE
VIII
|
|
|
THE
DEPOSITOR, THE COMPANY AND THE MASTER SERVICER
|
|
|
Section
8.01
|
Liabilities
of the Depositor, the Company and the Master Servicer.
|
|
Section
8.02
|
Merger
or Consolidation of the Depositor, the Company or the Master
Servicer.
|
|
Section
8.03
|
Indemnification
of the Trustee, the Master Servicer and the Securities
Administrator.
|
|
Section
8.04
|
Limitations
on Liability of the Depositor, the Company, the Master Servicer and
Others.
|
|
Section
8.05
|
Master
Servicer and Company Not to Resign.
|
|
Section
8.06
|
Successor
Master Servicer.
|
|
Section
8.07
|
Sale
and Assignment of Master Servicing.
|
|
ARTICLE
IX
|
|
|
DEFAULT;
TERMINATION OF MASTER SERVICER; TERMINATION
OF COMPANY
|
|
|
Section
9.01
|
Events
of Default.
|
|
Section
9.02
|
Trustee
to Act; Appointment of Successor.
|
|
Section
9.03
|
Notification
to Certificateholders.
|
|
Section
9.04
|
Waiver
of Defaults.
|
|
Section
9.05
|
Company
Default.
|
|
Section
9.06
|
Waiver
of Company Defaults.
|
|
ARTICLE
X
|
|
|
CONCERNING
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
|
|
|
Section
10.01
|
Duties
of Trustee and the Securities Administrator.
|
|
Section
10.02
|
Certain
Matters Affecting the Trustee and the Securities
Administrator.
|
|
Section
10.03
|
Trustee
and Securities Administrator Not Liable for Certificates or Mortgage
Loans.
|
|
Section
10.04
|
Trustee
and Securities Administrator May Own Certificates.
|
|
Section
10.05
|
Trustee’s
and Securities Administrator’s Fees and Expenses.
|
|
Section
10.06
|
Eligibility
Requirements for Trustee and Securities Administrator.
|
|
Section
10.07
|
Insurance.
|
|
Section
10.08
|
Resignation
and Removal of Trustee and Securities Administrator.
|
|
Section
10.09
|
Successor
Trustee or Securities Administrator.
|
|
Section
10.10
|
Merger
or Consolidation of Trustee or Securities
Administrator.
|
|
Section
10.11
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
Section
10.12
|
Tax
Matters.
|
|
Section
10.13
|
REMIC-Related
Covenants.
|
|
ARTICLE
XI
|
|
|
TERMINATION
|
|
|
Section
11.01
|
Termination
upon Liquidation or Repurchase of all 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.
|
|
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
|
Third
Party Rights.
|
Exhibits
|
Exhibit
A-1
|
Form
of Class A Certificates
|
|
Exhibit
A-2
|
Form
of Class M Certificates
|
|
Exhibit
A-3
|
Form
of Class B Certificates
|
|
Exhibit
A-4
|
Form
of Class C Certificates
|
|
Exhibit
A-5
|
Form
of Class R Certificates
|
|
Exhibit
A-6
|
Form
of Class X Certificates
|
|
Exhibit
B
|
Mortgage
Loan Schedule
|
|
Exhibit
C
|
Form
of Transfer Affidavit
|
|
Exhibit
D
|
Form
of Transferor Certificate
|
|
Exhibit
E
|
Form
of Investment Letter (Non-Rule 144A)
|
|
Exhibit
F
|
Form
of Rule 144A and Related Matters Certificate
|
|
Exhibit
G
|
Form
of Request for Release
|
|
Exhibit
H
|
DTC
Letter of Representations
|
|
Exhibit
I
|
Schedule
of Mortgage Loans with Lost Notes
|
|
Exhibit
J
|
Form
of LaSalle Custodial Agreement
|
|
Exhibit
K
|
Form
of Xxxxx Fargo Custodial Agreement
|
|
Exhibit
L
|
Form
of Mortgage Loan Purchase Agreement
|
|
Exhibit
M
|
Form
of Back-Up Certification
|
|
Exhibit
N
|
Swap
Agreement
|
|
Exhibit
O
|
Servicing
Criteria to Be Addressed in Assessment of Compliance
|
|
Exhibit
P
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Exhibit
Q
|
Additional
Disclosure Notification
|
|
Exhibit
R-1
|
Form
of GMACM Servicing Agreement
|
|
Exhibit
R-2
|
Form
of GMACM Assignment, Assumption and Recognition
Agreement
|
POOLING
AND SERVICING AGREEMENT, dated as of October 1, 2006, among BEAR XXXXXXX ASSET
BACKED SECURITIES I LLC, a Delaware limited liability company, as depositor
(the
“Depositor”), EMC MORTGAGE CORPORATION, a Delaware corporation, as seller (in
such capacity, the “Seller”) and as company (in such capacity, the “Company”),
LASALLE BANK NATIONAL ASSOCIATION, a national banking association, as master
servicer (in such capacity, the “Master Servicer”) and as securities
administrator (in such capacity, the “Securities Administrator”), and CITIBANK,
N.A., a national banking association, as trustee (the “Trustee”).
PRELIMINARY
STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates. On or prior to the Closing Date, the Depositor
acquired the Mortgage Loans from the Seller. On the Closing Date, the Depositor
will sell the Mortgage Loans and certain other property to the Trust Fund and
receive in consideration therefor Certificates evidencing the entire beneficial
ownership interest in the Trust Fund.
REMIC
I
As
provided herein, the Securities Administrator, on behalf of the Trustee will
elect to treat the segregated pool of assets consisting of the Mortgage Loans
and certain other related assets subject to this Agreement (other than the
Reserve Fund, any Prepayment Charge Waiver Amounts and, for the avoidance of
doubt, the Supplemental Interest Trust, the Swap Agreement, the Swap Account
and
any rights or obligations in respect of the Swap Administration Agreement)
as a
REMIC (as defined herein) for federal income tax purposes, and such segregated
pool of assets will be designated as “REMIC I”. The Class R-1 Certificates will
represent the sole class of Residual Interests (as defined herein) in REMIC
I
for purposes of the REMIC Provisions (as defined herein). The following table
irrevocably sets forth the designation, the Uncertificated REMIC I Pass-Through
Rate, the initial Uncertificated Principal Balance and, for purposes of
satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible
maturity date” for each of the REMIC I Regular Interests (as defined herein).
None of the REMIC I Regular Interests will be certificated.
|
Designation
|
Uncertificated
REMIC I
Pass-Through
Rate
|
Initial
Uncertificated Principal Balance
|
Latest
Possible Maturity Date (1)
|
|
|
I-1-A
|
Variable(2)
|
$
|
5,321,506.74
|
October
25, 2036
|
|
I-1-B
|
Variable(2)
|
$
|
5,321,506.74
|
October
25, 2036
|
|
I-2-A
|
Variable(2)
|
$
|
5,154,831.00
|
October
25, 2036
|
|
I-2-B
|
Variable(2)
|
$
|
5,154,831.00
|
October
25, 2036
|
|
I-3-A
|
Variable(2)
|
$
|
4,972,338.38
|
October
25, 2036
|
|
I-3-B
|
Variable(2)
|
$
|
4,972,338.38
|
October
25, 2036
|
|
I-4-A
|
Variable(2)
|
$
|
4,796,299.68
|
October
25, 2036
|
|
I-4-B
|
Variable(2)
|
$
|
4,796,299.68
|
October
25, 2036
|
|
I-5-A
|
Variable(2)
|
$
|
4,626,486.81
|
October
25, 2036
|
|
I-5-B
|
Variable(2)
|
$
|
4,626,486.81
|
October
25, 2036
|
|
I-6-A
|
Variable(2)
|
$
|
4,463,361.74
|
October
25, 2036
|
|
I-6-B
|
Variable(2)
|
$
|
4,463,361.74
|
October
25, 2036
|
|
I-7-A
|
Variable(2)
|
$
|
4,305,307.00
|
October
25, 2036
|
|
I-7-B
|
Variable(2)
|
$
|
4,305,307.00
|
October
25, 2036
|
|
I-8-A
|
Variable(2)
|
$
|
4,152,842.99
|
October
25, 2036
|
|
I-8-B
|
Variable(2)
|
$
|
4,152,842.99
|
October
25, 2036
|
|
I-9-A
|
Variable(2)
|
$
|
4,005,772.10
|
October
25, 2036
|
|
I-9-B
|
Variable(2)
|
$
|
4,005,772.10
|
October
25, 2036
|
|
I-10-A
|
Variable(2)
|
$
|
3,863,903.74
|
October
25, 2036
|
|
I-10-B
|
Variable(2)
|
$
|
3,863,903.74
|
October
25, 2036
|
|
I-11-A
|
Variable(2)
|
$
|
3,727,054.01
|
October
25, 2036
|
|
I-11-B
|
Variable(2)
|
$
|
3,727,054.01
|
October
25, 2036
|
|
I-12-A
|
Variable(2)
|
$
|
3,597,618.46
|
October
25, 2036
|
|
I-12-B
|
Variable(2)
|
$
|
3,597,618.46
|
October
25, 2036
|
|
I-13-A
|
Variable(2)
|
$
|
3,470,351.70
|
October
25, 2036
|
|
I-13-B
|
Variable(2)
|
$
|
3,470,351.70
|
October
25, 2036
|
|
I-14-A
|
Variable(2)
|
$
|
3,347,542.40
|
October
25, 2036
|
|
I-14-B
|
Variable(2)
|
$
|
3,347,542.40
|
October
25, 2036
|
|
I-15-A
|
Variable(2)
|
$
|
3,228,887.16
|
October
25, 2036
|
|
I-15-B
|
Variable(2)
|
$
|
3,228,887.16
|
October
25, 2036
|
|
I-16-A
|
Variable(2)
|
$
|
3,114,431.93
|
October
25, 2036
|
|
I-16-B
|
Variable(2)
|
$
|
3,114,431.93
|
October
25, 2036
|
|
I-17-A
|
Variable(2)
|
$
|
3,004,028.19
|
October
25, 2036
|
|
I-17-B
|
Variable(2)
|
$
|
3,004,028.19
|
October
25, 2036
|
|
I-18-A
|
Variable(2)
|
$
|
2,897,532.68
|
October
25, 2036
|
|
I-18-B
|
Variable(2)
|
$
|
2,897,532.68
|
October
25, 2036
|
|
I-19-A
|
Variable(2)
|
$
|
2,800,161.74
|
October
25, 2036
|
|
I-19-B
|
Variable(2)
|
$
|
2,800,161.74
|
October
25, 2036
|
|
I-20-A
|
Variable(2)
|
$
|
2,700,746.91
|
October
25, 2036
|
|
I-20-B
|
Variable(2)
|
$
|
2,700,746.91
|
October
25, 2036
|
|
I-21-A
|
Variable(2)
|
$
|
2,606,017.02
|
October
25, 2036
|
|
I-21-B
|
Variable(2)
|
$
|
2,606,017.02
|
October
25, 2036
|
|
I-22-A
|
Variable(2)
|
$
|
2,513,452.29
|
October
25, 2036
|
|
I-22-B
|
Variable(2)
|
$
|
2,513,452.29
|
October
25, 2036
|
|
I-23-A
|
Variable(2)
|
$
|
2,424,169.01
|
October
25, 2036
|
|
I-23-B
|
Variable(2)
|
$
|
2,424,169.01
|
October
25, 2036
|
|
I-24-A
|
Variable(2)
|
$
|
2,338,051.01
|
October
25, 2036
|
|
I-24-B
|
Variable(2)
|
$
|
2,338,051.01
|
October
25, 2036
|
|
I-25-A
|
Variable(2)
|
$
|
2,254,986.24
|
October
25, 2036
|
|
I-25-B
|
Variable(2)
|
$
|
2,254,986.24
|
October
25, 2036
|
|
I-26-A
|
Variable(2)
|
$
|
2,174,866.61
|
October
25, 2036
|
|
I-26-B
|
Variable(2)
|
$
|
2,174,866.61
|
October
25, 2036
|
|
I-27-A
|
Variable(2)
|
$
|
2,100,243.99
|
October
25, 2036
|
|
I-27-B
|
Variable(2)
|
$
|
2,100,243.99
|
October
25, 2036
|
|
I-28-A
|
Variable(2)
|
$
|
2,025,542.50
|
October
25, 2036
|
|
I-28-B
|
Variable(2)
|
$
|
2,025,542.50
|
October
25, 2036
|
|
I-29-A
|
Variable(2)
|
$
|
1,953,491.82
|
October
25, 2036
|
|
I-29-B
|
Variable(2)
|
$
|
1,953,491.82
|
October
25, 2036
|
|
I-30-A
|
Variable(2)
|
$
|
1,883,998.06
|
October
25, 2036
|
|
I-30-B
|
Variable(2)
|
$
|
1,883,998.06
|
October
25, 2036
|
|
I-31-A
|
Variable(2)
|
$
|
1,816,970.62
|
October
25, 2036
|
|
I-31-B
|
Variable(2)
|
$
|
1,816,970.62
|
October
25, 2036
|
|
I-32-A
|
Variable(2)
|
$
|
1,752,322.13
|
October
25, 2036
|
|
I-32-B
|
Variable(2)
|
$
|
1,752,322.13
|
October
25, 2036
|
|
I-33-A
|
Variable(2)
|
$
|
1,689,968.30
|
October
25, 2036
|
|
I-33-B
|
Variable(2)
|
$
|
1,689,968.30
|
October
25, 2036
|
|
I-34-A
|
Variable(2)
|
$
|
1,629,827.83
|
October
25, 2036
|
|
I-34-B
|
Variable(2)
|
$
|
1,629,827.83
|
October
25, 2036
|
|
I-35-A
|
Variable(2)
|
$
|
1,571,822.29
|
October
25, 2036
|
|
I-35-B
|
Variable(2)
|
$
|
1,571,822.29
|
October
25, 2036
|
|
I-36-A
|
Variable(2)
|
$
|
1,515,876.02
|
October
25, 2036
|
|
I-36-B
|
Variable(2)
|
$
|
1,515,876.02
|
October
25, 2036
|
|
I-37-A
|
Variable(2)
|
$
|
1,465,005.89
|
October
25, 2036
|
|
I-37-B
|
Variable(2)
|
$
|
1,465,005.89
|
October
25, 2036
|
|
I-38-A
|
Variable(2)
|
$
|
1,412,772.76
|
October
25, 2036
|
|
I-38-B
|
Variable(2)
|
$
|
1,412,772.76
|
October
25, 2036
|
|
I-39-A
|
Variable(2)
|
$
|
1,362,396.39
|
October
25, 2036
|
|
I-39-B
|
Variable(2)
|
$
|
1,362,396.39
|
October
25, 2036
|
|
I-40-A
|
Variable(2)
|
$
|
1,313,810.91
|
October
25, 2036
|
|
I-40-B
|
Variable(2)
|
$
|
1,313,810.91
|
October
25, 2036
|
|
I-41-A
|
Variable(2)
|
$
|
1,266,952.79
|
October
25, 2036
|
|
I-41-B
|
Variable(2)
|
$
|
1,266,952.79
|
October
25, 2036
|
|
I-42-A
|
Variable(2)
|
$
|
1,221,760.76
|
October
25, 2036
|
|
I-42-B
|
Variable(2)
|
$
|
1,221,760.76
|
October
25, 2036
|
|
I-43-A
|
Variable(2)
|
$
|
1,178,175.72
|
October
25, 2036
|
|
I-43-B
|
Variable(2)
|
$
|
1,178,175.72
|
October
25, 2036
|
|
I-44-A
|
Variable(2)
|
$
|
1,136,140.64
|
October
25, 2036
|
|
I-44-B
|
Variable(2)
|
$
|
1,136,140.64
|
October
25, 2036
|
|
I-45-A
|
Variable(2)
|
$
|
30,562,344.54
|
October
25, 2036
|
|
I-45-B
|
Variable(2)
|
$
|
30,562,344.54
|
October
25, 2036
|
_____________________________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, the
Distribution Date in the month following the maturity date for the Mortgage
Loan
with the latest maturity date has been designated as the “latest possible
maturity date” for each REMIC I Regular Interest.
(2) Calculated
in accordance with the definition of “Uncertificated REMIC I Pass-Through Rate”
herein.
REMIC
II
As
provided herein, the
Securities Administrator on behalf of the Trustee will
elect to treat the segregated pool of assets consisting of the REMIC I Regular
Interests as a REMIC for federal income tax purposes, and such segregated pool
of assets will be designated as “REMIC II”. The Class R-2 Certificates will
represent the sole class of Residual Interests in REMIC II for purposes of
the
REMIC Provisions. The
following table irrevocably sets forth the designation, the Uncertificated
REMIC
II Pass-Through Rate, the initial Uncertificated Principal Balance and, for
purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for each of the REMIC II Regular Interests (as
defined herein). None of the REMIC II Regular Interests will be
certificated.
|
Designation
|
Uncertificated
REMIC II
Pass-Through
Rate
|
Initial
Uncertificated Principal Balance
|
Latest
Possible Maturity Date (1)
|
|
|
AA
|
Variable(2)
|
$
|
295,415,064.18
|
October
25, 2036
|
|
A
|
Variable(2)
|
$
|
2,126,680.00
|
October
25, 2036
|
|
M-1
|
Variable(2)
|
$
|
158,250.00
|
October
25, 2036
|
|
M-2
|
Variable(2)
|
$
|
155,240.00
|
October
25, 2036
|
|
M-3
|
Variable(2)
|
$
|
55,770.00
|
October
25, 2036
|
|
M-4
|
Variable(2)
|
$
|
63,300.00
|
October
25, 2036
|
|
M-5
|
Variable(2)
|
$
|
52,760.00
|
October
25, 2036
|
|
M-6
|
Variable(2)
|
$
|
28,640.00
|
October
25, 2036
|
|
B-1
|
Variable(2)
|
$
|
78,370.00
|
October
25, 2036
|
|
B-2
|
Variable(2)
|
$
|
45,220.00
|
October
25, 2036
|
|
B-3
|
Variable(2)
|
$
|
42,200.00
|
October
25, 2036
|
|
B-4
|
Variable(2)
|
$
|
66,310.00
|
October
25, 2036
|
|
ZZ
|
Variable(2)
|
$
|
3,156,138.86
|
October
25, 2036
|
|
IO
|
(2)
|
(3)
|
October
25, 2036
|
|
___________________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date in the month following the maturity date for the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each REMIC II Regular
Interest
|
.
|
(2)
|
Calculated
in accordance with the definition of “Uncertificated REMIC II Pass-Through
Rate” herein.
|
|
(3)
|
REMIC
II Regular Interest IO will not have an Uncertificated Principal
Balance
but will accrue interest on its uncertificated notional amount calculated
in accordance with the definition of “Uncertificated Notional Amount”
herein.
|
CERTIFICATES
As
provided herein, the Securities Administrator on behalf of the Trustee will
elect to treat the segregated pool of assets consisting of the REMIC II Regular
Interests as a REMIC for federal income tax purposes, and such segregated pool
of assets will be designated as “REMIC III”. The Class R-3 Certificates will
represent the sole class of Residual Interests in REMIC III for purposes of
the
REMIC Provisions.
The
following table irrevocably sets forth the designation, Pass-Through Rate,
Initial Certificate Principal Balance (or initial Uncertificated Principal
Balance, in the case of the Class C Interest and the Class IO Interest) and,
for
purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the
“latest possible maturity date” for each class of Certificates and interests
that represents ownership of one or more of the Regular Interests in REMIC
III
created hereunder. The Trust Fund will also issue the Class X Certificates,
as
designated below, which will not represent a Regular Interest in any REMIC
created hereunder.
Each
Certificate, other than the Class C, Class X and Class R Certificates,
represents ownership of a Regular Interest in REMIC III and also represents
(i)
the right to receive certain amounts specified herein in respect of Basis Risk
Shortfall Carry Forward Amounts (as defined herein) and (ii) the obligation
to
pay Class IO Distribution Amounts (as defined herein). The entitlement to
principal of the Regular Interest which corresponds to each Certificate shall
be
equal in amount and timing to the entitlement to principal of such Certificate.
|
Designation
|
Pass-Through
Rate
|
Initial
Certificate
or
Uncertificated
Principal
Balance
|
Latest
Possible
Maturity
Date (1)
|
|
|
A(2)
|
Variable(3)
|
$
|
212,668,000.00
|
October
25, 2036
|
|
M-1(2)
|
Variable(3)
|
$
|
15,825,000.00
|
October
25, 2036
|
|
M-2(2)
|
Variable(3)
|
$
|
15,524,000.00
|
October
25, 2036
|
|
M-3(2)
|
Variable(3)
|
$
|
5,577,000.00
|
October
25, 2036
|
|
M-4(2)
|
Variable(3)
|
$
|
6,330,000.00
|
October
25, 2036
|
|
M-5(2)
|
Variable(3)
|
$
|
5,276,000.00
|
October
25, 2036
|
|
M-6(2)
|
Variable(3)
|
$
|
2,864,000.00
|
October
25, 2036
|
|
B-1(2)
|
Variable(3)
|
$
|
7,837,000.00
|
October
25, 2036
|
|
B-2(2)
|
Variable(3)
|
$
|
4,522,000.00
|
October
25, 2036
|
|
B-3(2)
|
Variable(3)
|
$
|
4,220,000.00
|
October
25, 2036
|
|
B-4(2)
|
Variable(3)
|
$
|
6,631,000.00
|
October
25, 2036
|
|
Class
C Interest
|
Variable(3)(4)
|
$
|
14,169,943.04
|
October
25, 2036
|
|
Class
IO Interest
|
(5)
|
(6)
|
October
25, 2036
|
|
|
X
|
N/A
|
N/A
|
October
25, 2036
|
|
______________________________________
| (1) |
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date in the month following the maturity date for the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each REMIC III Regular Interest (as
defined herein).
|
| (2) |
This
Class of Certificates represents ownership of a Regular Interest
in REMIC
III. Any amount distributed on this Class of Certificates on any
Distribution Date in excess of the amount distributable on the related
Regular Interest in REMIC III on such Distribution Date shall be
treated
for federal income tax purposes as having been paid from the Reserve
Fund
or the Supplemental Interest Trust, as applicable, and any amount
distributable on the related Regular Interest in REMIC III on such
Distribution Date in excess of the amount distributable on such Class
of
Certificates on such Distribution Date shall be treated for such
purposes
as having been distributed to the Holders of such Certificates and
then
paid by such Holders to the Supplemental Interest Trust, all pursuant
to
and as further provided in Section 4.12
hereof.
|
| (3) |
Calculated
in accordance with the definition of “Pass-Through Rate” herein. Each
Regular Interest in REMIC III which corresponds to a Class A, Class
M or
Class B Certificate will have the same Pass-Through Rate as such
Certificate, except with respect to the related Net WAC Cap Rate.
The Net
WAC Cap Rate for each such Regular Interest in REMIC III and Certificate
is specified in the definition of “Net WAC Cap
Rate.”
|
| (4) |
The
Class C Interest will not accrue interest on its Uncertificated Principal
Balance, but will accrue interest on its Uncertificated Notional
Amount as
described herein.
|
| (5) |
For
federal income tax purposes, the Class IO Interest will not have
a
Pass-Through Rate, but will be entitled to 100% of the amounts distributed
on REMIC II Regular Interest IO.
|
| (6) |
For
federal income tax purposes, the Class IO Interest will not have
an
Uncertificated Principal Balance, but will have a notional amount
equal to
the Uncertificated Notional Amount of REMIC II Regular Interest
IO.
|
REMIC
IV
As
provided herein, the Securities Administrator on behalf of the Trustee will
elect to treat the segregated pool of assets consisting of the Class C Interest
as a REMIC for federal income tax purposes, and such segregated pool of assets
will be designated as “REMIC IV”. The Class R-4 Interest represents the sole
class of Residual Interests in REMIC IV for purposes of the REMIC
Provisions.
The
following table sets forth the Class designation, Pass-Through Rate, Initial
Certificate Principal Balance and, for purposes of satisfying Treasury
Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for
the indicated Class of Certificates that represents a Regular Interest in REMIC
IV created hereunder. Each Class C Certificate represents ownership of a Regular
Interest in REMIC IV and also represents (i) the obligation to pay certain
amounts specified herein in respect of Basis Risk Shortfall Carry Forward
Amounts and (ii) the right to receive Class IO Distribution
Amounts.
|
Class
Designation
|
Pass-Through
Rate
|
Initial
Certificate
Principal
Balance
|
Latest
Possible
Maturity
Date(1)
|
|
C
|
Variable(2)
|
$ 14,169,943.04
|
October
25, 2036
|
_______________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations, the
Distribution Date in the month following the maturity date for the Mortgage
Loan
with the latest maturity date has been designated as the “latest possible
maturity date” for the Class C Certificates.
(2) The
Class
C Certificates will not accrue interest on its Uncertificated Principal Balance,
but will receive 100% of the amounts received in respect of the Class C
Interest.
REMIC
V
As
provided herein, the Securities Administrator on behalf of the Trustee shall
elect to treat the segregated pool of assets consisting of the Class IO Interest
as a REMIC for federal income tax purposes, and such segregated pool of assets
will be designated as “REMIC V”. The Class R-5 Interest represents the sole
class of Residual Interests in REMIC V for purposes of the REMIC
Provisions.
The
following table sets forth the designation, Pass-Through Rate, initial
Uncertificated Principal Balance and, for purposes of satisfying Treasury
Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for
the indicated class of interests that represents a Regular Interest in REMIC
V
created hereunder:
|
Designation
|
Pass-Through
Rate
|
Initial
Uncertificated Principal Balance
|
Latest
Possible
Maturity
Date(1)
|
|
IO(2)
|
(3)
|
(4)
|
October
25, 2036
|
_______________
| (1) |
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date in the month following the maturity date for the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for REMIC V Regular Interest
IO.
|
| (2) |
REMIC
V Regular Interest IO will be held as an asset of the Supplemental
Interest Trust.
|
| (3) |
REMIC
V Regular Interest IO will not have a Pass-Through Rate, but will
receive
100% of the amounts received in respect of the Class IO Interest.
|
| (4) |
REMIC
V Regular Interest IO will not have an Uncertificated Principal Balance,
but will have a notional amount equal to the Uncertificated Notional
Amount of the Class IO Interest.
|
The
Trust
Fund shall be named, and may be referred to as, the “SACO I Trust 2006-10.” The
Certificates issued hereunder may be referred to as “Mortgage-Backed
Certificates, Series 2006-10” (including for purposes of any endorsement or
assignment of a Mortgage Note or Mortgage).
In
consideration of the mutual agreements herein contained, the Depositor, the
Master Servicer, the Securities Administrator, the Seller, the Company and
the
Trustee agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
Whenever
used in this Agreement, the following words and phrases, unless otherwise
expressly provided or unless the context otherwise requires, shall have the
meanings specified in this Article.
10-K
Filing Deadline:
The
meaning set forth in Section 3.18(a)(iv).
Accepted
Master Servicing Practices:
With
respect to any Mortgage Loan, those customary mortgage master servicing
practices of prudent mortgage master servicing institutions that master service
mortgage loans, of the same type and quality as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located, to the extent
applicable to the Master Servicer (except in its capacity as successor to the
Company or the Servicer).
Accepted
Servicing Practices:
With
respect to each EMC Mortgage Loan, those mortgage servicing practices (including
collection procedures) that are in accordance with all applicable statutes,
regulations and prudent mortgage banking practices for similar mortgage
loans.
Account:
The
Distribution Account, the Master Servicer Collection Account, the Reserve Fund,
the Swap Account and any Protected Account.
Accrual
Period:
With
respect to the Class A Certificates and Class M Certificates and any
Distribution Date, the period from and including the immediately preceding
Distribution Date (or with respect to the first Accrual Period, the Closing
Date) to and including the day prior to such Distribution Date. With respect
to
the Class B Certificates and Class C Certificates and the Class C Interest
and
any Distribution Date, the calendar month immediately preceding such
Distribution Date. All calculations of interest on the Class A Certificates
and
Class M Certificates will be made on the basis of the actual number of days
elapsed in the related Accrual Period. All calculations of interest on the
Class
B Certificates and Class C Certificates and the Class C Interest will be made
on
the basis of a 360-day year consisting of twelve 30-day months.
Additional
Disclosure:
As
defined in Section 3.18(a)(v).
Additional
Disclosure Notification:
The
form of notice set forth in Exhibit Q.
Additional
Form 10-D Disclosure:
As
defined in Section 3.18(a)(i).
Additional
Form 10-K Disclosure:
As
defined in Section 3.18(a)(iv).
Adjustable
Rate Mortgage Loan:
Each of
the Mortgage Loans identified in the Mortgage Loan Schedule as having a Mortgage
Rate that is subject to adjustment.
Adjustment
Date:
With
respect to each Adjustable Rate Mortgage Loan, the first day of the month in
which the Mortgage Rate of an Adjustable Rate Mortgage Loan changes pursuant
to
the related Mortgage Note. The first Adjustment Date following the Cut-off
Date
as to each Adjustable Rate Mortgage Loan is set forth in the Mortgage Loan
Schedule.
Advance:
An
advance of delinquent payments of principal and interest in respect of a
Mortgage Loan required to be made by the Company as provided in Section 6.01(a)
hereof, by the Master Servicer as provided in Section 6.01(b) hereof and by
the
Servicer as provided in the GMACM Servicing Agreement.
Affected
Party:
An
“Affected Party” as defined in the Swap Agreement.
Agreement:
This
Pooling and Servicing Agreement and any and all amendments or supplements hereto
made in accordance with the terms herein.
Amount
Held for Future Distribution:
As to
any Distribution Date and the EMC Mortgage Loans, the aggregate amount held
in
the Company’s Protected Account at the close of business on the immediately
preceding Determination Date on account of (i) all Scheduled Payments or
portions thereof received in respect of the EMC Mortgage Loans due after the
related Due Period, (ii) Principal Prepayments received in respect of such
Mortgage Loans after the last day of the related Prepayment Period, (iii)
Liquidation Proceeds, Subsequent Recoveries and Insurance Proceeds received
in
respect of such Mortgage Loans after the last day of the prior calendar month.
As to any Distribution Date and the Mortgage Loans serviced by the Servicer,
the
amount as set forth in the GMACM Servicing Agreement.
Annual
Statement of Compliance:
As
defined in Section 3.16.
Applied
Realized Loss Amount:
With
respect to any Distribution Date and any Class of Class A, Class M and Class
B
Certificates, the sum of the Realized Losses with respect to the Mortgage Loans
that have been applied in reduction of the Certificate Principal Balance of
a
Class of Certificates pursuant to Section 6.05 of this Agreement which have
not
previously been reimbursed or reduced by any Subsequent Recoveries applied
to
such Applied Realized Loss Amount.
Appraised
Value:
With
respect to any Mortgage Loan originated in connection with a refinancing, the
appraised value of the Mortgaged Property based upon the appraisal made at
the
time of such refinancing or, with respect to any other Mortgage Loan, the lesser
of (x) the appraised value of the Mortgaged Property based upon the appraisal
made by a fee appraiser at the time of the origination of the related Mortgage
Loan, and (y) the sales price of the Mortgaged Property at the time of such
origination.
Assessment
of Compliance:
As
defined in Section 3.17.
Attestation
Report:
As
defined in Section 3.17.
Attesting
Party:
As
defined in Section 3.17.
Back-Up
Certification:
As
defined in Section 3.18.
Basis
Risk Shortfall Carry Forward Amount:
With
respect to any Distribution Date and any Class of Class A Certificates and
Class
M Certificates, an amount equal to the sum of (A) the excess, if any, of (a)
the
amount of Current Interest that such Class would have been entitled to receive
on such Distribution Date had the Pass-Though Rate applicable to such Class
been
calculated at a per annum rate equal to lesser of (i) the related One-Month
LIBOR Pass-Through Rate and (ii) 11.00% per annum, over (b) the amount of
Current Interest that such Class received on such Distribution Date if the
Pass-Through Rate is limited to the related Net WAC Cap Rate and (B) the Basis
Risk Shortfall Carry Forward Amount for the previous Distribution Date not
previously paid, together with interest thereon at a rate equal to the related
Pass-Through Rate for the current Distribution Date.
With
respect to any Distribution Date and the Class B Certificates, an amount equal
to the sum of (A) the excess, if any, of (a) the amount of Current Interest
such
Class would have been entitled to receive on such Distribution Date had the
Pass-Through Rate applicable to such Class been calculated at a per annum rate
equal to the applicable fixed rate Pass-Through Rate on such Distribution Date
over (b) the amount of interest paid on such Distribution Date if the
Pass-Through Rate is limited by the related Net WAC Cap Rate plus (B) the Basis
Risk Shortfall Carry Forward Amount for the previous Distribution Date not
previously distributed, together with interest thereon at a rate equal to the
Pass-Through Rate for the current Distribution Date.
Bankruptcy
Code:
Title
11 of the United States Code.
Book-Entry
Certificates:
Any of
the Certificates that shall be registered in the name of the Depository or
its
nominee, the ownership of which is reflected on the books of the Depository
or
on the books of a person maintaining an account with the Depository (directly,
as a “Depository Participant”, or indirectly, as an indirect participant in
accordance with the rules of the Depository and as described in Section 7.06).
As of the Closing Date, each Class of Regular Certificates (other than the
Class
C Certificates) constitutes a Class of Book-Entry Certificates.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, or (ii) a day on which banking
institutions in the City of New York, New York, Chicago, Illinois, Minneapolis,
Minnesota or any city in which the Corporate Trust Office of the Trustee or
the
Securities Administrator or the principal office of the Company or the Master
Servicer is located are authorized or obligated by law or executive order to
be
closed.
Certificate:
Any one
of the certificates of any Class executed and authenticated by the Securities
Administrator in substantially the forms attached hereto as Exhibits A-1 through
A-6.
Certificate
Margin:
With
respect to the Class A Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest A, 0.150% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 0.300% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class M-1 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest M-1, 0.350% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 0.525% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class M-2 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest M-2, 0.400% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 0.600% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class M-3 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest M-3, 0.430% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 0.645% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class M-4 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest M-4, 0.570% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 0.855% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class M-5 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest M-5, 0.600% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 0.900% per annum in the case of each
Distribution Date thereafter.
With
respect to the Class M-6 Certificates and, for purposes of the definition of
“One-Month LIBOR Pass-Through Rate”, REMIC II Regular Interest M-6, 0.700% per
annum in the case of each Distribution Date through and including the first
possible Optional Termination Date and 1.050% per annum in the case of each
Distribution Date thereafter.
Certificate
Notional Amount:
With
respect to the Class C Certificates and any Distribution Date, an amount equal
to the Stated Principal Balance of the Mortgage Loans as of the beginning of
the
related Due Period. The initial Certificate Notional Amount of the Class C
Certificates shall be $301,443,943.04. For federal income tax purposes, the
Certificate Notional Amount for any Distribution Date shall be an amount equal
to the Uncertificated Notional Amount for the Class C Interest for such
Distribution Date
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person that is the beneficial owner
of
such Book-Entry Certificate.
Certificate
Principal Balance:
As to
any Certificate (other than any Class X, Class C and any Class R Certificate)
and as of any Distribution Date, the Initial Certificate Principal Balance
of
such Certificate plus, in the case of a Class A, Class M or Class B Certificate,
any Subsequent Recoveries added to the Certificate Principal Balance of such
Certificate pursuant to Section 6.04(b), less the sum of (i) all amounts
distributed with respect to such Certificate in reduction of the Certificate
Principal Balance thereof on previous Distribution Dates pursuant to Section
6.04, and (ii) any Applied Realized Loss Amounts allocated to such Certificate
on previous Distribution Dates. As to the Class C Certificates and as of any
Distribution Date, an amount equal to the Uncertificated Principal Balance
of
the Class C Interest.
Certificate
Register:
The
register maintained pursuant to Section 7.02 hereof.
Certificateholder
or Holder:
The
person in whose name a Certificate is registered in the Certificate Register
(initially, Cede & Co., as nominee for the Depository, in the case of any
Book-Entry Certificates).
Certification
Parties:
The
meaning set forth in Section 3.18(a)(iv).
Certifying
Person:
The
meaning set forth in Section 3.18(a)(iv).
Class:
All
Certificates bearing the same Class designation as set forth in Section 7.01
hereof.
Class
A Principal Distribution Amount:
For
any
Distribution Date, an amount equal to the lesser of (x) the Principal
Distribution Amount for such Distribution Date and (y) the excess, if any,
of
(i) the aggregate Certificate Principal Balance of the Class A Certificates
immediately prior to such Distribution Date, over (ii) the lesser of (a) the
product of (1) 41.10% and (2) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period, and after reduction for Realized Losses
incurred during the prior calendar month), and (b) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the prior calendar month)
minus the Overcollateralization Floor.
Class
A Certificate:
Any
Certificate designated as a “Class A Certificate” on the face thereof, in the
form of Exhibit A-1 hereto, representing the right to the Percentage Interest
of
distributions provided for the Class A Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
B Certificates:
Any of
the Class B-1, Class B-2, Class B-3 or Class B-4 Certificates.
Class
B-1 Certificate:
Any
Certificate designated as a “Class B-1 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class B-1 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
B-1 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the
Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution
Amount, the Class M-4 Principal Distribution Amount, the Class M-5 Principal
Distribution Amount and the Class M-6 Principal Distribution Amount and (y)
the
excess, if any, of (a) the sum of (1) the aggregate Certificate Principal
Balance of the Class A Certificates (after taking into account the distribution
of the Class A Principal Distribution Amount on such Distribution Date), (2)
the
Certificate Principal Balance of the Class M-1 Certificates (after taking into
account the distribution of the Class M-1 Principal Distribution Amount on
such
Distribution Date), (3) the Certificate Principal Balance of the Class M-2
Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (4) the Certificate
Principal Balance of the Class M-3 Certificates (after taking into account
the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (5) the Certificate Principal 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), (6) the Certificate Principal
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), (7) the Certificate Principal 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 (8) the Certificate Principal
Balance of the Class B-1 Certificates immediately prior to such Distribution
Date, over (b) the lesser of (1) the product of (x) 84.40% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the prior calendar month),
and (2) the aggregate Stated Principal Balance of the Mortgage Loans as of
the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during prior calendar
month) minus the Overcollateralization Floor.
Class
B-2 Certificate:
Any
Certificate designated as a “Class B-2 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class B-2 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
B-2 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the
Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution
Amount, the Class M-4 Principal Distribution Amount, the Class M-5 Principal
Distribution Amount, the Class M-6 Principal Distribution Amount and the Class
B-1 Principal Distribution Amount and (y) the excess, if any, of (a) the sum
of
(1) the aggregate Certificate Principal Balance of the Class A Certificates
(after taking into account the distribution of the Class A Principal
Distribution Amount on such Distribution Date), (2) the Certificate Principal
Balance of the Class M-1 Certificates (after taking into account the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (3) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (4) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (5) the Certificate Principal 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), (6) the Certificate Principal
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), (7) the Certificate Principal 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), (8) the Certificate Principal
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 (9) the Certificate Principal Balance of the Class B-2 Certificates
immediately prior to such Distribution Date, over (b) the lesser of (1) the
product of (x) 83.40% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period, and after reduction for Realized Losses
incurred during the prior calendar month), and (2) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the prior calendar month)
minus the Overcollateralization Floor.
Class
B-3 Certificate:
Any
Certificate designated as a “Class B-3 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class B-3 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
B-3 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the
Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution
Amount, the Class M-4 Principal Distribution Amount, the Class M-5 Principal
Distribution Amount, the Class M-6 Principal Distribution Amount, the Class
B-1
Principal Distribution Amount, and the Class B-2 Principal Distribution Amount
and (y) the excess, if any, of (a) the sum of (1) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (2) the Certificate Principal Balance of the Class M-1 Certificates
(after taking into account the distribution of the Class M-1 Principal
Distribution Amount on such Distribution Date), (3) the Certificate Principal
Balance of the Class M-2 Certificates (after taking into account the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (4) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (5) the Certificate Principal
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), (6) the Certificate Principal 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), (7) the Certificate Principal
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), (8) the Certificate Principal 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), (9) the Certificate Principal
Balance of the Class B-2 Certificates (after taking into account the
distribution of the Class B-2 Principal Distribution Amount on such Distribution
Date) and (10) the Certificate Principal Balance of the Class B-3 Certificates
immediately prior to such Distribution Date, over (b) the lesser of (1) the
product of (x) 86.20% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period, and after reduction for Realized Losses
incurred during the prior calendar month), and (2) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the prior calendar month)
minus the Overcollateralization Floor.
Class
B-4 Certificate:
Any
Certificate designated as a “Class B-4 Certificate” on the face thereof, in the
form of Exhibit A-3 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class B-4 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
B-4 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the
Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution
Amount, the Class M-4 Principal Distribution Amount, the Class M-5 Principal
Distribution Amount, the Class M-6 Principal Distribution Amount, the Class
B-1
Principal Distribution Amount, the Class B-2 Principal Distribution Amount
and
the Class B-3 Principal Distribution Amount and (y) the excess, if any, of
(a)
the sum of (1) the aggregate Certificate Principal Balance of the Class A
Certificates (after taking into account the distribution of the Class A
Principal Distribution Amount on such Distribution Date), (2) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (3) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (4) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (5) the Certificate Principal 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), (6) the Certificate Principal
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), (7) the Certificate Principal 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), (8) the Certificate Principal
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), (9) the Certificate Principal Balance of the Class B-2 Certificates
(after taking into account the distribution of the Class B-2 Principal
Distribution Amount on such Distribution Date), (10) the Certificate Principal
Balance of the Class B-3 Certificates (after taking into account the
distribution of the Class B-3 Principal Distribution Amount on such Distribution
Date) and (11) the Certificate Principal Balance of the Class B-4 Certificates
immediately prior to such Distribution Date, over (b) the lesser of (1) the
product of (x) 90.60% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period, and after reduction for Realized Losses
incurred during the prior calendar month), and (2) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the prior calendar month)
minus the Overcollateralization Floor.
Class
C Certificate:
Any
Certificate designated as a “Class C Certificate” on the face thereof, in the
form of Exhibit A-4 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class C Certificates herein and evidencing (i)
a
Regular Interest in REMIC IV, (ii) the obligation to pay Basis Risk Shortfall
Carry Forward Amounts, (iii)
the
right to receive Class IO Distribution Amounts and (iv) the right to receive
any
Prepayment Charge Waiver Amounts.
Class
C Distribution Amount:
With
respect to any Distribution Date, the sum of (i) the Current Interest for the
Class C Interest for such Distribution Date, (ii) any Overcollateralization
Release Amount for such Distribution Date and (iii) without duplication, any
Subsequent Recoveries not distributed to the Class A, Class M and Class B
Certificates on such Distribution Date; provided, however, that, on any
Distribution Date after the Distribution Date on which the Certificate Principal
Balances of the Class A, Class M and Class B Certificates have been reduced
to
zero, the Class C Distribution Amount shall include the Overcollateralization
Amount.
Class
C Interest:
An
uncertificated interest in the Trust Fund held by the Trustee on behalf of
the
Holders of the Class C Certificates, evidencing a Regular Interest in REMIC
III
for purposes of the REMIC Provisions.
Class
IO Distribution Amount:
As
defined in Section 4.12 hereof. For purposes of clarity, the Class IO
Distribution Amount for any Distribution Date shall equal the amount payable
to
the Swap Administrator on such Distribution Date pursuant to the first and
second sentences of Section 4.12(c) in excess of the amount payable on REMIC
V
Regular Interest IO on such Distribution Date, all as further provided in
Section 4.12 hereof.
Class
IO Interest:
An
uncertificated interest in the Trust Fund held by the Trustee on behalf of
the
holders of REMIC V Regular Interest IO, evidencing a Regular Interest in REMIC
V
for purposes of the REMIC provisions.
Class
M Certificates:
Any of
the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5 and Class M-6
Certificates.
Class
M-1 Certificate:
Any
Certificate designated as a “Class M-1 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class M-1 Certificates as set forth herein and
evidencing
(i) a Regular Interest in REMIC III, (ii) the right to receive Basis Risk
Shortfall Carry Forward Amounts and (iii) the obligation to pay Class IO
Distribution Amounts.
Class
M-1 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount and (y) the excess, if any, of (a) the sum of
(1)
the aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Class A Principal Distribution
Amount on such Distribution Date) and (2) the Certificate Principal Balance
of
the Class M-1 Certificates immediately prior to such Distribution Date, over
(b)
the lesser of (1) the product of (x) 51.60% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the prior calendar month),
and (2) the aggregate Stated Principal Balance of the Mortgage Loans as of
the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the prior
calendar month) minus the Overcollateralization Floor.
Class
M-2 Certificate:
Any
Certificate designated as a “Class M-2 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class M-2 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
M-2 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount and the Class M-1 Principal Distribution Amount
and (y) the excess, if any, of (a) the sum of (1) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (2) the Certificate Principal Balance of the Class M-1 Certificates
(after taking into account the distribution of the Class M-1 Principal
Distribution Amount on such Distribution Date) and (3) the Certificate Principal
Balance of the Class M-2 Certificates immediately prior to such Distribution
Date, over (b) the lesser of (1) the product of (x) 61.90% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the prior calendar month),
and (2) the aggregate Stated Principal Balance of the Mortgage Loans as of
the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the prior
calendar month) minus the Overcollateralization Floor.
Class
M-3 Certificate:
Any
Certificate designated as a “Class M-3 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class M-3 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
M-3 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount
and
the Class M-2 Principal Distribution Amount and (y) the excess, if any, of
(a)
the sum of (1) the aggregate Certificate Principal Balance of the Class A
Certificates (after taking into account the distribution of the Class A
Principal Distribution Amount on such Distribution Date), (2) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (3) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date) and (4) the Certificate Principal
Balance of the Class M-3 Certificates immediately prior to such Distribution
Date, over (b) the lesser of (1) the product of (x) 65.60% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the prior calendar month),
and (2) the aggregate Stated Principal Balance of the Mortgage Loans as of
the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the prior
calendar month) minus the Overcollateralization Floor.
Class
M-4 Certificate:
Any
Certificate designated as a “Class M-4 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class M-4 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
M-4 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the
Class M-2 Principal Distribution Amount and the Class M-3 Principal Distribution
Amount and (y) the excess, if any, of (a) the sum of (1) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount on such
Distribution Date), (2) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (3) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (4) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date) and (5) the Certificate Principal
Balance of the Class M-4 Certificates immediately prior to such Distribution
Date, over (b) the lesser of (1) the product of (x) 69.80% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the prior calendar month),
and (2) the aggregate Stated Principal Balance of the Mortgage Loans as of
the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the prior
calendar month) minus the Overcollateralization Floor.
Class
M-5 Certificate:
Any
Certificate designated as a “Class M-5 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class M-5 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
M-5 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the
Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution
Amount and the Class M-4 Principal Distribution Amount and (y) the excess,
if
any, of (a) the sum of (1) the aggregate Certificate Principal Balance of the
Class A Certificates (after taking into account the distribution of the Class
A
Principal Distribution Amount on such Distribution Date), (2) the Certificate
Principal Balance of the Class M-1 Certificates (after taking into account
the
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (3) the Certificate Principal Balance of the Class M-2 Certificates
(after taking into account the distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (4) the Certificate Principal
Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (5) the Certificate Principal 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 (6) the Certificate Principal
Balance of the Class M-5 Certificates immediately prior to such Distribution
Date, over (b) the lesser of (1) the product of (x) 73.30% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the prior calendar month),
and (2) the aggregate Stated Principal Balance of the Mortgage Loans as of
the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the prior
calendar month) minus the Overcollateralization Floor.
Class
M-6 Certificate:
Any
Certificate designated as a “Class M-6 Certificate” on the face thereof, in the
form of Exhibit A-2 hereto, representing the right to its Percentage Interest
of
distributions provided for the Class M-6 Certificates as set forth herein and
evidencing (i) a Regular Interest in REMIC III, (ii) the right to receive Basis
Risk Shortfall Carry Forward Amounts and (iii) the obligation to pay Class
IO
Distribution Amounts.
Class
M-6 Principal Distribution Amount:
For any
Distribution Date, an amount equal to the lesser of (x) the remaining Principal
Distribution Amount for such Distribution Date after distribution of the Class
A
Principal Distribution Amount, the Class M-1 Principal Distribution Amount,
the
Class M-2 Principal Distribution Amount, the Class M-3 Principal Distribution
Amount, the Class M-4 Principal Distribution Amount and the Class M-5 Principal
Distribution Amount and (y) the excess, if any, of (a) the sum of (1) the
aggregate Certificate Principal Balance of the Class A Certificates (after
taking into account the distribution of the Class A Principal Distribution
Amount on such Distribution Date), (2) the Certificate Principal Balance of
the
Class M-1 Certificates (after taking into account the distribution of the Class
M-1 Principal Distribution Amount on such Distribution Date), (3) the
Certificate Principal Balance of the Class M-2 Certificates (after taking into
account the distribution of the Class M-2 Principal Distribution Amount on
such
Distribution Date), (4) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the distribution of the Class M-3
Principal Distribution Amount on such Distribution Date), (5) the Certificate
Principal 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), (6) the Certificate Principal 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 (7) the Certificate Principal
Balance of the Class M-6 Certificates immediately prior to such Distribution
Date, over (b) the lesser of (1) the product of (x) 75.20% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the prior calendar month),
and (2) the aggregate Stated Principal Balance of the Mortgage Loans as of
the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period, and after reduction for Realized Losses incurred during the prior
calendar month) minus the Overcollateralization Floor.
Class
R Certificate:
Any of
the Class R-1, Class R-2, Class R-3 or Class RX Certificates.
Class
R-1 Certificate:
Any
Certificate designated a “Class R-1 Certificate” on the face thereof, in the
form set forth in Exhibit A-5 hereto, evidencing the Residual Interest in REMIC
I and representing the right to the Percentage Interest of distributions
provided for the Class R-1 Certificates as set forth herein.
Class
R-2 Certificate:
Any
Certificate designated a “Class R-2 Certificate” on the face thereof, in the
form set forth in Exhibit A-5 hereto, evidencing the Residual Interest in REMIC
II and representing the right to the Percentage Interest of distributions
provided for the Class R-2 Certificates as set forth herein.
Class
R-3 Certificate:
Any
Certificate designated a “Class R-3 Certificate” on the face thereof, in the
form set forth in Exhibit A-5 hereto, evidencing the Residual Interest in REMIC
III and representing the right to the Percentage Interest of distributions
provided for the Class R-3 Certificates as set forth herein.
Class
RX Certificate:
Any
Certificate designated a “Class RX Certificate” on the face thereof, in the form
set forth in Exhibit A-5 hereto, evidencing the ownership of the Class R-4
Interest and Class R-5 Interest and representing the right to the Percentage
Interest of distributions provided for the Class RX Certificates as set forth
herein.
Class
R-4 Interest:
The
uncertificated Residual Interest in REMIC IV.
Class
R-5 Interest:
The
uncertificated Residual Interest in REMIC V.
Class
X Certificate:
Any
Certificate designated as a “Class X Certificate” on the face thereof, in the
form of Exhibit A-6 hereto.
Closing
Date:
October
30, 2006.
Code:
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Combined
Loan-to-Value Ratio:
With
respect to any Mortgage Loan and as of any date of determination, the fraction
(expressed as a percentage) the numerator of which is the sum of (i) original
principal balance of the related Mortgage Loan at such date of determination
and
(ii) the unpaid principal balance of the related first lien Mortgage Loan as
of
the date of origination of that Mortgage Loan and the denominator of which
is
the applicable Appraised Value of the related Mortgaged Property at
origination.
Commission:
The
U.S. Securities and Exchange Commission.
Company:
EMC.
Company
Default:
As
defined in Section 9.05 hereof.
Compensating
Interest:
With
respect to any Distribution Date, (i) in the case of the Company or the
Servicer, an amount, not to exceed the Servicing Fee, to be deposited in the
Protected Account by the Company or the Servicer with respect to the payment
of
a Prepayment Interest Shortfall (in the case of the Company, related to a
voluntary prepayment as described in Section 6.02(a) hereof and in the case
of
the Servicer, related to a prepayment as described in the GMACM Servicing
Agreement) on a Mortgage Loan subject to this Agreement and (ii) in the case
of
the Master Servicer, an amount not to exceed that portion of the Master
Servicing Fee payable to the Master Servicer. If the Company or the Servicer
fails to make such payment, the Master Servicer shall be obligated to do so
to
the extent provided in Section 6.02(c) hereof.
Corporate
Trust Office:
(i)
With respect to the Trustee, the designated corporate trust office of the
Trustee, currently located at Citibank, N.A., 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, and (ii) with respect to the Securities Administrator,
the designated office of the Securities Administrator currently located at
000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 Attention: Global
Securities and Trust Services Group — SACO 2006-10 or at such other address as
the Trustee or Securities Administrator, as applicable, may designate from
time
to time by notice to the Certificateholders, the Depositor, the Trustee, the
Master Servicer, the Securities Administrator and EMC or at the principal
corporate trust office of any successor Trustee.
Corresponding
Certificate:
With
respect to each REMIC II Regular Interest (other than REMIC II Regular Interests
AA, ZZ and IO), the Certificate with the corresponding designation. With respect
to each REMIC III Regular Interest (other than the Class C Interest and the
Class IO Interest), the related Certificate representing an ownership
therein.
Cumulative
Realized Loss Percentage:
With
respect to the Certificates and any Distribution Date, the percentage obtained
by dividing (x) the aggregate Realized Losses on the Mortgage Loans incurred
since the related Cut-off Date through the end of the related Due Period by
(y)
the aggregate Stated Principal Balance of the Mortgage Loans as of the related
Cut-off Date.
Current
Interest:
As of
any Distribution Date, with respect to the Certificates (other than the Class
X
Certificates and the Residual Certificates) and interests of each class (other
than the Residual Interests), (i) the interest accrued on the Certificate
Principal Balance, or Certificate Notional Amount or Uncertificated Notional
Amount, as applicable, during the related Accrual Period at the applicable
Pass-Through Rate, plus any amount previously distributed with respect to
interest for such Certificate or interest that has been recovered as a voidable
preference by a trustee in bankruptcy minus (ii) the sum of (a) any Prepayment
Interest Shortfall for such Distribution Date, to the extent not covered by
Compensating Interest and (b) any Relief Act Interest Shortfalls during the
related Due Period, provided, however, that for purposes of calculating Current
Interest for any such class, amounts specified in clause (ii) hereof for any
such Distribution Date shall be allocated first to the Class C Certificates
and
the Class C Interest in reduction of amounts otherwise distributable to such
Certificates and interest on such Distribution Date and then any excess shall
be
allocated to each Class of Class A, Class M and Class B Certificates
pro
rata
based on
the respective amounts of interest accrued pursuant to clause (i) hereof for
each such Class on such Distribution Date.
Current
Specified Enhancement Percentage: With
respect to any Distribution Date, the percentage obtained by dividing (x) the
sum of (i) the aggregate Certificate Principal Balance of the Class M
Certificates and Class B Certificates and (ii) the Overcollateralization Amount,
in each case prior to the distribution of the Principal Distribution Amount on
such Distribution Date, by (y) the aggregate Stated Principal Balance of the
Mortgage Loans as of the end of the related Due Period (after giving effect
to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period, and after reduction for Realized Losses incurred
during the prior calendar month).
Custodial
Agreements:
The
LaSalle Custodial Agreement or Xxxxx Fargo Custodial Agreement, as applicable.
Custodians:
(i)
Xxxxx Fargo, or any successor custodian appointed pursuant to the provisions
hereof and the Xxxxx Fargo Custodial Agreement and (ii) LaSalle, or any
successor custodian appointed pursuant to the provisions hereof and the LaSalle
Custodial Agreement.
Cut-off
Date:
The
close of business on October 1, 2006.
Cut-off
Date Principal Balance:
As to
any Mortgage Loan, the unpaid principal balance thereof as of the close of
business on the Cut-off Date after application of all Principal Prepayments
received prior to the Cut-off Date and scheduled payments of principal due
on or
before the Cut-off Date, whether or not received, but without giving effect
to
any installments of principal received in respect of Due Dates after the Cut-off
Date. The aggregate Cut-off Date Principal Balance of the Mortgage Loans is
$301,443,943.04.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction by a court of competent jurisdiction
in a proceeding under the Bankruptcy Code in the Scheduled Payment for such
Mortgage Loan that became final and non-appealable, except such a reduction
resulting from a Deficient Valuation or any other reduction that results in
a
permanent forgiveness of principal.
Defaulting
Party:
A
“Defaulting Party” as defined in the Swap Agreement.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation by a court of competent jurisdiction
of the Mortgaged Property in an amount less than the then outstanding
indebtedness under such Mortgage Loan, or any reduction in the amount of
principal to be paid in connection with any Scheduled Payment that results
in a
permanent forgiveness of principal, which valuation or reduction results from
an
order of such court that is final and non-appealable in a proceeding under
the
Bankruptcy Code.
Definitive
Certificates:
As
defined in Section 7.06.
Deleted
Mortgage Loan:
A
Mortgage Loan replaced or to be replaced by a Replacement Mortgage
Loan.
Delinquent:
A
Mortgage Loan is “delinquent” if any payment due thereon is not made pursuant to
the terms of such Mortgage Loan by the close of business on the day such payment
is scheduled to be due. A Mortgage Loan is “30 days delinquent” if such payment
has not been received by the close of business on the corresponding day of
the
month immediately succeeding the month in which such payment was due, or, if
there is no such corresponding day (e.g., as when a 30-day month follows a
31-day month in which a payment was due on the 31st day of such month), then
on
the last day of such immediately succeeding month. Similarly for “60 days
delinquent,” “90 days delinquent” and so on.
Denomination:
With
respect to each Certificate, the amount set forth on the face thereof as the
“Initial Principal Balance or Initial Notional Amount of this
Certificate”.
Depositor:
Bear
Xxxxxxx Asset Backed Securities I LLC, a Delaware limited liability company,
or
its successor in interest.
Depository:
The
initial Depository shall be The Depository Trust Company (“DTC”), the nominee of
which is Cede & Co., or any other organization registered as a “clearing
agency” pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository shall initially be 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
Agreement:
With
respect to the Class of Book-Entry Certificates, the agreement between the
Issuing Entity and the initial Depository, dated as of the Closing Date,
substantially in the form of Exhibit H.
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.
Designated
Depository Institution:
A
depository institution (commercial bank, federal savings bank, mutual savings
bank or savings and loan association) or trust company (which may include the
Trustee, the Securities Administrator and the Master Servicer), the deposits
of
which are fully insured by the FDIC to the extent provided by law.
Determination
Date:
With
respect to any Distribution Date, the 15th
day of
the month of such Distribution Date or, if such 15th
day is
not a Business Day, the immediately preceding Business Day.
Distribution
Account:
The
segregated trust account or accounts created and maintained by the Securities
Administrator pursuant to Section 5.08 in the name of the Trustee for the
benefit of the Certificateholders, which shall be entitled “LaSalle Bank
National Association, as Securities Administrator, on behalf of Citibank, N.A.,
as Trustee, in trust for the registered holders of SACO I Trust 2006-10,
Mortgage-Backed Certificates, Series 2006-10.” The Distribution Account must be
an Eligible Account.
Distribution
Account Deposit Date:
Two
Business Days prior to each Distribution Date.
Distribution
Date:
The
25th day of each calendar month after the initial issuance of the Certificates,
or if such 25th day is not a Business Day, the next succeeding Business Day,
commencing in November 2006.
Due
Date:
As to
any Mortgage Loan, the date in each month on which the related Scheduled Payment
is due, as set forth in the related Mortgage Note.
Due
Period:
With
respect to any Distribution Date, the period from and including the second
day
of the calendar month preceding the calendar month in which such Distribution
Date occurs through close of business on the first day of the calendar month
in
which such Distribution Date occurs.
Eligible
Account:
Any of
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company, the long-term unsecured debt
obligations and short-term unsecured debt obligations of which (or, in the
case
of a depository institution or trust company that is the principal subsidiary
of
a holding company, the debt obligations of such holding company, so long as
Xxxxx’x is not a Rating Agency) are rated by each Rating Agency in one of its
two highest long-term and its highest short-term rating categories,
respectively, at the time any amounts are held on deposit therein, or (ii)
an
account or accounts in a depository institution or trust company in which such
accounts are insured by the FDIC (to the limits established by the FDIC) and
the
uninsured deposits in which accounts are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to and satisfactory to the Trustee,
the Securities Administrator and to each Rating Agency, the Certificateholders
have a claim with respect to the funds in such account or a perfected first
priority security interest against any collateral (which shall be limited to
Permitted Investments) securing such funds that is superior to claims of any
other depositors or creditors of the depository institution or trust company
in
which such account is maintained, or (iii) a trust account or accounts
maintained with the corporate trust department of a federal or state chartered
depository institution or trust company having capital and surplus of not less
than $50,000,000, acting in its fiduciary capacity or (iv) any other account
acceptable to each Rating Agency, as evidenced in writing. Eligible Accounts
may
bear interest, and may include, if otherwise qualified under this definition,
accounts maintained with the Trustee and the Securities
Administrator.
EMC:
EMC
Mortgage Corporation, a Delaware corporation, and its successors and
assigns.
EMC
Flow Loans:
The
Mortgage Loans purchased by EMC pursuant to a flow loan purchase
agreement.
EMC
Mortgage Loans:
Those
Mortgage Loans serviced by the Company pursuant to the terms of this
Agreement.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA
Restricted Certificates:
Any of
the Class C Certificates and Residual Certificates.
Estimated
Swap Termination Payment:
As
specified in the Swap Agreement.
Event
of Default:
As
defined in Section 9.01 hereof.
Excess
Cashflow:
With
respect to any Distribution Date, an amount, if any, equal to the sum of (a)
the
Remaining Excess Spread for such Distribution Date and (b) the
Overcollateralization Release Amount for such Distribution Date.
Excess
Liquidation Proceeds:
To the
extent not required by law to be paid to the related Mortgagor, the excess,
if
any, of any Liquidation Proceeds with respect to a Mortgage Loan over the Stated
Principal Balance of such Mortgage Loan and accrued and unpaid interest at
the
related Mortgage Rate through the last day of the month in which the Mortgage
Loan has been liquidated.
Exemption:
Prohibited Transaction Exemption 90-30, as amended from time to
time.
Excess
Spread:
With
respect to any Distribution Date, the excess, if any, of (i) the Interest Funds
for such Distribution Date over (ii) the sum of the Current Interest on the
Class A, Class M and Class B Certificates and Interest Carry Forward Amounts
on
the Class A Certificates (other than Interest Carry Forward Amounts paid
pursuant to Section 6.04(a)(3)(A)), in each case for such Distribution
Date.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
Extra
Principal Distribution Amount:
With
respect to any Distribution Date, the lesser of (i) the excess, if any, of
the
Overcollateralization Target Amount for such Distribution Date over the
Overcollateralization Amount for such Distribution Date (after giving effect
to
distributions of principal on the Certificates other than any Extra Principal
Distribution Amount) and (ii) the Excess Spread for such Distribution
Date.
Xxxxxx
Mae:
Xxxxxx
Xxx (formerly, Federal National Mortgage Association), or any successor
thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Final
Certification:
The
certification by a Custodian substantially in the form of Exhibit Three to the
related Custodial Agreement.
Final
Recovery Determination:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by EMC pursuant to or as contemplated
by
Section 2.03(d) or Section 11.01), a determination made by the Company pursuant
to this Agreement or the Servicer pursuant to the GMACM Servicing Agreement
that
all Insurance Proceeds, Liquidation Proceeds and other payments or recoveries
which the Company or the Servicer, in its reasonable good faith judgment,
expects to be finally recoverable in respect thereof have been so recovered.
The
Master Servicer shall maintain records, based solely on information provided
by
the Company and the Servicer, of each Final Recovery Determination made
thereby.
Fiscal
Quarter:
December 1 to February 29 (or the last day in such month), March 1 to May 31,
June 1 to August 31, or September 1 to November 30, as applicable.
Form
8-K Disclosure Information:
The
meaning set forth in Section 3.18(a)(iii).
Xxxxxxx
Mac:
Federal
Home Loan Mortgage Corporation, or any successor thereto.
Global
Certificate:
Any
Private Certificate registered in the name of the Depository or its nominee,
beneficial interests in which are reflected on the books of the Depository
or on
the books of a Person maintaining an account with such Depository (directly
or
as an indirect participant in accordance with the rules of such
depository).
GMAC
Mortgage Corporation or GMACM:
GMAC
Mortgage Corporation and any successor thereto.
GMACM
Assignment Agreement:
The
Assignment, Assumption and Recognition Agreement substantially in the form
of
Exhibit R-2, dated as of October 30, 2006, among EMC, the Trustee and GMACM,
evidencing the assignment of the GMACM Assignment Agreement to the
Trust.
GMACM
Loans:
Those
Mortgage Loans subject to this Agreement which were purchased by EMC from GMACM
pursuant to the GMACM Servicing Agreement.
GMACM
Servicing Agreement:
The
Servicing Agreement, dated as of May 1, 2001, as amended by Amendment No. 1,
dated as of October 1, 2001, Amendment No. 2, dated as of July 31, 2002 and
Amendment No. 3, dated as of December 20, 2005 substantially in the form of
Exhibit R-1, between EMC and GMACM.
Gross
Margin:
With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage set forth
in
the related Mortgage Note that is added to the Index on each Adjustment Date
in
accordance with the terms of the related Mortgage Note used to determine the
Mortgage Rate for such Mortgage Loan.
Indemnified
Persons:
The
Trustee, the Master Servicer, the Company, the Trust Fund and the Securities
Administrator, including LaSalle Bank National Association in its individual
capacity, and their respective officers, directors, agents and employees and,
with respect to the Trustee, any separate co-trustee and its officers,
directors, agents and employees.
Index:
With
respect to each Adjustable Rate Mortgage Loan and with respect to each related
Adjustment Date, the index as specified in the related Mortgage
Note.
Individual
Certificate:
Any
Private Certificate registered in the name of a Holder other than the Depository
or its nominee.
Initial
Certification:
The
certification by a Custodian substantially in the form of Exhibit One to the
related Custodial Agreement.
Initial
Certificate Principal Balance:
With
respect to any Certificate (other than the Class X Certificates), the
Certificate Principal Balance of such Certificate or any predecessor Certificate
on the Closing Date.
Institutional
Accredited Investor:
Any
Person meeting the requirements of Rule 501(a)(l), (2), (3) or (7) of Regulation
D under the Securities Act or any entity all of the equity holders in which
come
within such paragraphs.
Insurance
Policy:
With
respect to any Mortgage Loan included in the Trust Fund, any insurance policy,
including all riders and endorsements thereto in effect with respect to such
Mortgage Loan, including any replacement policy or policies for any Insurance
Policies.
Insurance
Proceeds:
Proceeds paid in respect of the Mortgage Loans pursuant to any Insurance Policy
and any other insurance policy covering a Mortgage Loan, to the extent such
proceeds are payable to the mortgagee under the Mortgage, the Company, the
Servicer or the Trustee under the deed of trust and are not applied to the
restoration of the related Mortgaged Property or released to the Mortgagor
in
accordance with the procedures that the Company or the Servicer would follow
in
servicing mortgage loans held for its own account, in each case other than
any
amount included in such Insurance Proceeds in respect of Insured
Expenses.
Insured
Expenses:
Expenses covered by any insurance policy with respect to the Mortgage
Loans.
Interest
Carry Forward Amount:
As of
any Distribution Date and with respect to each Class of Certificates (other
than
the Class C Certificates and the Residual Certificates), the sum of (i) the
excess of (a) the Current Interest for such Class with respect to such
Distribution Date and any prior Distribution Dates over (b) the amount actually
distributed to such Class of Certificates with respect to interest on such
Distribution Dates and (ii) interest thereon (to the extent permitted by
applicable law) at the applicable Pass-Through Rate for such Class for the
related Accrual Period including the Accrual Period relating to such
Distribution Date.
Interest
Determination Date:
Shall
mean the second LIBOR Business Day preceding the commencement of each Accrual
Period.
Interest
Funds:
With
respect to any Distribution Date (1) the sum, without duplication, of (a) all
scheduled interest during the related Due Period with respect to the Mortgage
Loans less the Servicing Fee and the Master Servicing Fee, if any, (b) all
Advances relating to interest with respect to the related Mortgage Loans made
on
or prior to the related Distribution Account Deposit Date, (c) all Compensating
Interest with respect to the Mortgage Loans and required to be remitted by
the
Company or the Master Servicer pursuant to this Agreement and by the Servicer
pursuant to the GMACM Servicing Agreement with respect to such Distribution
Date, (d) Liquidation Proceeds and Subsequent Recoveries with respect to the
related Mortgage Loans collected during the prior calendar month (to the extent
such Liquidation Proceeds and Subsequent Recoveries relate to interest), (e)
all
amounts relating to interest with respect to each Mortgage Loan repurchased
by
EMC pursuant to Sections 2.02 and 2.03 and by EMC pursuant to Section 3.05,
in
each case to the extent remitted by the Master Servicer to the Distribution
Account pursuant to this Agreement and (f) the interest portion of any proceeds
received from the exercise of a Optional Termination, minus (2)(i) all amounts
relating to interest required to be reimbursed pursuant to Sections 5.02 and
5.09 or as otherwise set forth in this Agreement and (ii) any Net Swap Payment
or Swap Termination Payment (not due to a Swap Provider Trigger Event and to
the
extent not paid by the Swap Administrator from any upfront payment received
pursuant to any replacement interest rate swap agreement that may be entered
into by the Supplemental Interest Trust Trustee) owed to the Swap Administrator
for payment to the Swap Provider for such Distribution Date and any such
payments remaining unpaid for any prior Distribution Dates.
Interim
Certification:
The
certification by a Custodian substantially in the form of Exhibit Two to the
related Custodial Agreement.
Issuing
Entity:
The
Trust designated as SACO I Trust 2006-10.
LaSalle:
LaSalle
Bank National Association, and any successor in interest.
LaSalle
Custodial Agreement:
The
Custodial Agreement, dated as of October 30, 2006, among the Depositor, EMC,
as
Seller, the Master Servicer, the Securities Administrator, the Trustee and
LaSalle as Custodian relating to the Mortgage Loans identified in such Custodial
Agreement.
Last
Scheduled Distribution Date:
Solely
for purposes of the face of the Certificates, the Distribution Date in October
2036.
Latest
Possible Maturity Date:
The
Distribution Date in the month following the final scheduled maturity date
of
the Mortgage Loan in the Trust Fund having the latest scheduled maturity date
as
of the Cut-off Date. For purposes of the Treasury regulations under Sections
860A through 860G of the Code, the latest possible maturity date of each Regular
Interest issued by REMIC I, REMIC II, REMIC III, REMIC IV and REMIC V shall
be
the Latest Possible Maturity Date.
LIBOR
Business Day:
Shall
mean a day on which banks are open for dealing in foreign currency and exchange
in London and New York City.
Liquidated
Loan:
With
respect to any Distribution Date, a defaulted Mortgage Loan that has been
liquidated through deed-in-lieu of foreclosure, foreclosure sale, trustee’s sale
or other realization as provided by applicable law governing the real property
subject to the related Mortgage and any security agreements and as to which
the
Company or the Servicer has made a Final Recovery Determination with respect
thereto.
Liquidation
Proceeds:
Amounts, other than Insurance Proceeds, received in connection with the partial
or complete liquidation of a Mortgage Loan, whether through trustee’s sale,
foreclosure sale or otherwise, or in connection with any condemnation or partial
release of a Mortgaged Property and any other proceeds received with respect
to
an REO Property, less the sum of related unreimbursed Advances, Servicing Fees
and Servicing Advances and all expenses of liquidation, including property
protection expenses and foreclosure and sale costs, including court and
reasonable attorneys fees.
Majority
Class C Certificateholder:
The
Holder of a 50.01% or greater Percentage Interest in the Class C
Certificates.
Marker
Rate:
With
respect to the Class C Interest and any Distribution Date, a per annum rate
equal to two (2) times the weighted average of the Uncertificated REMIC II
Pass-Through Rates for the REMIC II Regular Interests (other than REMIC II
Regular Interests AA and IO), with the rate on each such REMIC II Regular
Interest (other than REMIC II Regular Interests ZZ, X-0, X-0, X-0 and B-4)
subject to a cap equal to the least of (i) the One-Month LIBOR Pass-Through
Rate
for the Corresponding Certificate, (ii) 11.00% per annum and (iii) the related
Net WAC Cap Rate for the REMIC III
Regular
Interest the ownership of which is represented by the Corresponding Certificate
for the purpose of this calculation for such Distribution Date, with the rate
on
each of the REMIC II Regular Interests X-0, X-0, X-0 and B-4 subject to a cap
equal to the lesser of (i) the per annum fixed rate specified in the definition
of “Pass-Through Rate” for the Corresponding Certificate, and (ii) the related
Net WAC Cap Rate for the REMIC III Regular Interest the ownership of which
is
represented by the Corresponding Certificate for the purpose of this calculation
for such Distribution Date, and with the rate on REMIC II Regular Interest
ZZ
subject to a cap of zero for the purpose of this calculation; provided, however,
that solely for this purpose, the related cap with respect to each REMIC II
Regular Interest (other than REMIC II Regular Interests AA, ZZ, X-0, X-0, X-0,
X-0 and IO) shall be multiplied by a fraction, the numerator of which is 30
and
the denominator of which is the actual number of days in the related Accrual
Period.
Master
Servicer:
LaSalle
Bank National Association, in its capacity as master servicer, and its
successors and assigns or any Successor Master Servicer appointed as herein
provided.
Master
Servicer Collection Account:
The
trust accounts or accounts created and maintained pursuant to Section 5.06
hereof, which shall be entitled “LaSalle Bank National Association, as master
servicer, on behalf of Citibank, N.A., as Trustee f/b/o holders of SACO I Trust
2006-10, Mortgage-Backed Certificates, Series 2006-10 - Master Servicer
Collection Account”. The Master Servicer Collection Account may be a sub-account
of the Distribution Account.
Master
Servicer Information:
As
defined in Section 3.18.
Master
Servicing Compensation:
For any
Distribution Date, the Master Servicing Fee for such Distribution
Date.
Master
Servicing Fee:
As to
each Mortgage Loan and any Distribution Date, an amount equal to 1/12th of
the
Master Servicing Fee Rate multiplied by the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the month preceding the month in which
such
Distribution Date occurs.
Master
Servicing Fee Rate:
0.0350%
per annum.
Master
Servicing Officer:
Any
officer of the Master Servicer responsible for the master servicing of the
Mortgage Loans.
Maximum
Mortgage Rate:
With
respect to each Adjustable Rate Mortgage Loan, the percentage set forth in
the
related Mortgage Note as the maximum Mortgage Rate thereunder.
Maximum
Probable Exposure:
With
respect to each Distribution Date and the Swap Agreement, the amount calculated
by the Depositor in accordance with the Seller’s internal risk management
process in respect of similar instruments, such calculation to be performed
as
agreed by the Securities Administrator and the Depositor.
Maximum
Uncertificated Accrued Interest Deferral Amount:
With
respect to any Distribution Date, the excess of (i) accrued interest at the
Uncertificated REMIC II Pass-Through Rate applicable to REMIC II Regular
Interest ZZ for such Distribution Date on a balance equal to the Uncertificated
Principal Balance of REMIC II Regular Interest ZZ minus the REMIC II
Overcollateralization Amount, in each case for such Distribution Date, over
(ii)
the aggregate amount of Uncertificated Accrued Interest for such Distribution
Date on the REMIC II Regular Interests (other than REMIC II Regular Interests
AA, ZZ and IO), with the rate on each such REMIC II Regular Interest (other
than
REMIC II Regular Interests X-0, X-0, X-0 and B-4) subject to a cap equal to
the
least of (x) the One-Month LIBOR Pass Through Rate for the Corresponding
Certificate, (y) 11.00% per annum and (z) the Net WAC Cap Rate for the REMIC
III
Regular Interest the ownership of which is represented by the Corresponding
Certificate for the purpose of this calculation for such Distribution Date,
and
with the rate on each of the REMIC II Regular Interests X-0, X-0, X-0 and B-4
subject to a cap equal to the lesser of (i) the per annum fixed rate specified
in the definition of “Pass-Through Rate” for the Corresponding Certificate, and
(ii) the related Net WAC Cap Rate for the REMIC III Regular Interest the
ownership of which is represented by the Corresponding Certificate for the
purpose of this calculation for such Distribution Date; provided, however,
that
solely for this purpose, the related cap with respect to each REMIC II Regular
Interest (other than REMIC II Regular Interests AA, ZZ, X-0, X-0, X-0, X-0
and
IO) shall be multiplied by a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the related Accrual
Period.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS®
System:
The
system of recording transfers of Mortgages electronically maintained by
MERS.
MIN:
The
Mortgage Identification Number for Mortgage Loans registered with MERS on the
MERS® System.
Minimum
Mortgage Rate:
With
respect to each Adjustable Rate Mortgage Loan, the percentage set forth in
the
related Mortgage Note as the minimum Mortgage Rate thereunder.
MOM
Loan:
With
respect to any Mortgage Loan, MERS acting as the mortgagee of such Mortgage
Loan, solely as nominee for the originator of such Mortgage Loan and its
successors and assigns, at the origination thereof.
Monthly
Statement:
The
statement prepared and delivered by the Securities Administrator pursuant to
Section 6.06.
Moody’s:
Xxxxx’x
Investors Service, Inc., and any successor thereto.
Mortgage:
The
mortgage, deed of trust or other instrument creating a second lien on or second
priority ownership interest in an estate in fee simple in real property securing
a Mortgage Note.
Mortgage
File:
The
mortgage documents listed in Section 2.01 hereof pertaining to a particular
Mortgage Loan and any additional documents delivered to the related Custodian
to
be added to the Mortgage File pursuant to this Agreement and the related
Custodial Agreement.
Mortgage
Loan Purchase Agreement:
The
Mortgage Loan Purchase Agreement, dated as of October 30, 2006, between EMC
as
Seller and the Depositor as purchaser, in the form attached hereto as Exhibit
L.
Mortgage
Loan Purchase Price:
The
price, calculated as set forth in Section 11.01, to be paid in connection with
the repurchase of the Mortgage Loans pursuant to Section 11.01.
Mortgage
Loans:
Such of
the mortgage loans transferred and assigned to the Trustee pursuant to the
provisions hereof, as from time to time are held as a part of the Trust Fund
(including any REO Property), notwithstanding foreclosure or other acquisition
of title of the related Mortgaged Property.
Mortgage
Loan Schedule:
The
list of Mortgage Loans (as from time to time amended by the Company or the
Master Servicer to reflect the deletion of Deleted Mortgage Loans and the
addition of Replacement Mortgage Loans pursuant to the provisions of this
Agreement) transferred to the Trustee as part of the Trust Fund and from time
to
time subject to this Agreement, the Mortgage Loan Schedule being attached hereto
as Exhibit B, with respect to the Mortgage Loans and as amended from time to
time to reflect the repurchase or substitution of Mortgage Loans pursuant to
this Agreement or the Mortgage Loan Purchase Agreement, as the case may be,
setting forth the following information with respect to each Mortgage
Loan:
(a) the
city,
state and zip code of the Mortgaged Property;
(b) the
property type;
(c) the
Mortgage Interest Rate;
(d) the
Servicing Fee Rate;
(e) the
Master Servicer's Fee Rate;
(f) the
LPMI
Fee; if applicable;
(g) the
Net
Rate;
(h) the
maturity date;
(i) the
stated original term to maturity;
(j) the
stated remaining term to maturity;
(k) the
original Principal Balance;
(l) the
first
payment date;
(m) the
principal and interest payment in effect as of the Cut-off Date;
(n) the
unpaid Principal Balance as of the Cut-off Date;
(o) the
Loan-to-Value Ratio at origination;
(p) the
insurer of any Primary Mortgage Insurance Policy;
(q) the
MIN
with respect to each MOM Loan;
(r) the
Gross
Margin, if applicable;
(s) the
next
Adjustment Date, if applicable;
(t) the
Maximum Mortgage Rate, if applicable;
(u) the
Minimum Mortgage Rate, if applicable;
(v) the
Periodic Rate Cap, if applicable;
(w) the
Loan
Group, if applicable;
(x) a
code
indicating whether the Mortgage Loan is negatively amortizing;
(y) which
Mortgage Loans adjust after an initial fixed-rate period of one, two, three,
five, seven or ten years or any other period;
(z) the
Prepayment Charge, if any;
(aa) lien
position (e.g., first lien or second lien);
(bb) a
code
indicating whether the Mortgage Loan is has a balloon payment;
(cc) a
code
indicating whether the Mortgage Loan is an interest-only loan;
(dd) the
interest-only term, if applicable;
(ee) the
Mortgage Loan Seller; and
(ff) the
original amortization term.
Such
schedule also shall set forth for all of the Mortgage Loans, the total number
of
Mortgage Loans, the total of each of the amounts described under (m) and (n)
above, the weighted average by principal balance as of the Cut-off Date of
each
of the rates described under (c) through (h) above, and the weighted average
remaining term to maturity by unpaid principal balance as of the Cut-off
Date.
Mortgage
Note:
The
original executed note or other evidence of indebtedness of a Mortgagor under
a
Mortgage Loan.
Mortgage
Rate:
With
respect to each fixed rate Mortgage Loan, the rate set forth in the related
Mortgage Note. With respect to each Adjustable Rate Mortgage Loan, the annual
rate at which interest accrues on such Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage Note, which rate (A)
as
of any date of determination until the first Adjustment Date following the
Cut-off Date shall be the rate set forth in the Mortgage Loan Schedule as the
Mortgage Rate in effect immediately following the Cut-off Date and (B) as of
any
date of determination thereafter shall be the rate as adjusted on the most
recent Adjustment Date, to equal the sum, rounded to the next highest or nearest
0.125% (as provided in the Mortgage Note), of the Index, determined as set
forth
in the related Mortgage Note, plus the related Gross Margin subject to the
limitations set forth in the related Mortgage Note. With respect to each
Mortgage Loan that becomes an REO Property, as of any date of determination,
the
annual rate determined in accordance with the immediately preceding sentence
as
of the date such Mortgage Loan became an REO Property.
Mortgaged
Property:
The
underlying property securing a Mortgage Loan.
Mortgagor:
The
obligors on a Mortgage Note.
Net
Mortgage Rate:
As to
each Mortgage Loan, and at any time, the per annum rate equal to the related
Mortgage Rate less the sum of (i) the Servicing Fee Rate and (ii) the Master
Servicing Fee Rate.
Net
Swap Payment:
With
respect to each Distribution Date, the net payment required to be made pursuant
to the terms of the Swap Agreement by either the Swap Provider or the Swap
Administrator, which net payment shall not take into account any Swap
Termination Payment.
Net
WAC Cap Rate:
With
respect to any Distribution Date and any Class of Class A, Class M or Class
B
Certificates, a per annum rate equal to the excess, if any, of (A) the weighted
average of the Net Mortgage Rates on the then outstanding Mortgage Loans,
weighted based on their Stated Principal Balances as of the related Due Date
prior to giving effect to any reduction in the Stated Principal Balances of
such
Mortgage Loans on such Due Date, over (B) a per annum rate equal to the sum
of
the Net Swap Payment and Swap Termination Payment not due to a Swap Provider
Trigger Event payable to the Swap Provider, in each case on such Distribution
Date (to the extent not paid by the Supplemental Interest Trust from any upfront
payment received pursuant to any replacement interest rate swap agreement that
may be entered into by the Supplemental Interest Trust Trustee), divided by
the
outstanding
Stated
Principal Balance of the Mortgage Loans
as of
the related Due Date prior to giving effect to any reduction in the Stated
Principal Balances of such Mortgage Loans on such due date, multiplied by
12.
The Net
WAC Cap Rate for such Classes of Certificates (other than the Class B
Certificates) will be calculated based on a 360-day year and the actual number
of days elapsed in the related Accrual Period. With respect to any Distribution
Date and each REMIC III Regular Interest the ownership of which is represented
by a Class A, Class M or Class B Certificate, a per annum rate equal to the
weighted average (adjusted for the actual number of days elapsed in the related
Accrual Period, except in the case of each REMIC III Regular Interest the
ownership of which is represented by the Class B Certificates) of the
Uncertificated REMIC II Pass-Through Rates on the REMIC II Regular Interests
(other than REMIC II Regular Interest IO), weighted on the basis of the
Uncertificated Principal Balances of each such REMIC II Regular Interest
immediately prior to such Distribution Date.
Non-Book-Entry
Certificate:
Any
Certificate other than a Book-Entry Certificate.
Nonrecoverable
Advance:
Any
portion of an Advance previously made or proposed to be made by the Company
or
the Master Servicer pursuant to this Agreement that, in the good faith judgment
of the Company or the Master Servicer, will not or, in the case of a proposed
advance, would not, be ultimately recoverable by it from the related Mortgagor,
related Liquidation Proceeds, Insurance Proceeds or otherwise.
Notional
Amount:
With
respect to each Distribution Date and the Swap Agreement, the notional amount
for the related calculation period as set forth in the related schedule set
forth in Exhibit N.
Offered
Certificates:
Any of
the Class A, Class M, Class B-1, Class B-2 and Class B-3
Certificates.
Officer’s
Certificate:
A
certificate (i) signed by the Chairman of the Board, the Vice Chairman of the
Board, the President, a Vice President (however denominated), an Assistant
Vice
President, the Treasurer, the Secretary, or one of the assistant treasurers
or
assistant secretaries of the Depositor, the Seller or the Master Servicer (or
any other officer customarily performing functions similar to those performed
by
any of the above designated officers and also to whom, with respect to a
particular matter, such matter is referred because of such officer’s knowledge
of and familiarity with a particular subject) or (ii), if provided for in this
Agreement, signed by a Servicing Officer, as the case may be, and delivered
to
the Depositor, the Seller, the Securities Administrator, the Master Servicer
and/or the Trustee, as the case may be, as required by this
Agreement.
One-Month
LIBOR:
With
respect to any Accrual Period and the Class A Certificates and Class M
Certificates, the rate determined by the Securities Administrator on the related
Interest Determination Date on the basis of the rate for U.S. dollar deposits
for one month that appears on Telerate Screen Page 3750 as of 11:00 a.m. (London
time) on such Interest Determination Date. If such rate does not appear on
such
page (or such other page as may replace that page on that service, or if such
service is no longer offered, such other service for displaying One-Month LIBOR
or comparable rates as may be reasonably selected by the Securities
Administrator), One-Month LIBOR for the applicable Accrual Period will be the
Reference Bank Rate. If no such quotations can be obtained by the Securities
Administrator and no Reference Bank Rate is available, One-Month LIBOR will
be
One-Month LIBOR applicable to the preceding Accrual Period. The establishment
of
One-Month LIBOR on each Interest Determination Date by the Securities
Administrator and the Securities Administrator’s calculation of the rate of
interest applicable to the Class A Certificates and Class M Certificates for
the
related Accrual Period shall, in the absence of manifest error, be final and
binding.
One-Month
LIBOR Pass-Through Rate:
With
respect to each Class A Certificate and Class M Certificate and, for purposes
of
the definitions of “Marker Rate”, “Maximum Uncertificated Accrued Interest
Deferral Amount”, the related REMIC III Regular Interest for which such
Certificate is the Corresponding Certificate, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
Opinion
of Counsel:
A
written opinion of counsel, who may be counsel for EMC, the Depositor, the
Company or the Master Servicer, reasonably acceptable to each addressee of
such
opinion; provided that with respect to Section 2.05, 8.05, 8.07 or 12.01, or
the
interpretation or application of the REMIC Provisions, such counsel must (i)
in
fact be independent of EMC, Depositor, the Company and the Master Servicer,
(ii)
not have any direct financial interest in EMC, the Depositor, the Company or
the
Master Servicer or in any affiliate of either, and (iii) not be connected with
EMC, the Depositor, the Company or the Master Servicer as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions.
Optional
Termination:
The
termination of the Trust created hereunder as a result of the purchase of all
of
the Mortgage Loans and any REO Property pursuant to Section 11.01
hereof.
Optional
Termination Date:
The
Distribution Date on which the aggregate Stated Principal Balance of all of
the
Mortgage Loans is equal to or less than 20% of the aggregate Stated Principal
Balance of all of the Mortgage Loans as of the Cut-off Date.
Original
Value:
The
value of the property underlying a Mortgage Loan based, in the case of the
purchase of the underlying Mortgaged Property, on the lower of an appraisal
or
the sales price of such property or, in the case of a refinancing, on an
appraisal.
Outstanding:
With
respect to the Certificates as of any date of determination, all Certificates
theretofore executed and authenticated under this Agreement except:
(a) Certificates
theretofore canceled by the Securities Administrator or delivered to the
Securities Administrator for cancellation; and
(b) 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 date of determination, a Mortgage Loan with a Stated Principal Balance
greater than zero that was not the subject of a Principal Prepayment in full,
and that did not become a Liquidated Loan, prior to the end of the related
Prepayment Period.
Overcollateralization
Amount:
With
respect to any Distribution Date, the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after
giving effect to scheduled payments of principal due during the related Due
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period, and after reduction
for
Realized Losses incurred during the prior calendar month) over
the
aggregate Certificate Principal Balance of the Certificates (other than the
Class C Certificates) on such Distribution Date (after taking into account
the
payment of principal other than any Extra Principal Distribution Amount on
such
Certificates).
Overcollateralization
Floor:
With
respect to the Certificates, an amount equal to 0.50% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
Overcollateralization
Release Amount:
With
respect to any Distribution Date, the lesser of (x) the Principal Funds for
such
Distribution Date and (y) the excess, if any, of (i) the Overcollateralization
Amount for such Distribution Date (assuming that 100% of the Principal Funds
is
applied as a principal payment on such Distribution Date) over (ii) the
Overcollateralization Target Amount for such Distribution Date (with the amount
pursuant to clause (y) deemed to be $0 if the Overcollateralization Amount
is
less than or equal to the Overcollateralization Target Amount on that
Distribution Date).
Overcollateralization
Target Amount:
With
respect to any Distribution Date (a) prior to the Stepdown Date, 4.70% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date,
(b) on or after the Stepdown Date and if a Trigger Event is not in effect,
the
greater of (i) the lesser of (1) 4.70% of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date and (2) 9.40% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period, and
after reduction for Realized Losses incurred during the prior calendar month)
and (ii) the Overcollateralization Floor or (c) on or after the Stepdown Date
and if a Trigger Event is in effect, the Overcollateralization Target Amount
for
the immediately preceding Distribution Date.
Ownership
Interest:
As to
any 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.
Pass-Through
Rate:
With
respect to the Class A Certificates and Class M Certificates and any
Distribution Date, a rate per annum equal to the least of (i) the related
One-Month LIBOR Pass-Through Rate for such Distribution Date, (ii) 11.00% per
annum and (iii) the related Net WAC Cap Rate for such Distribution Date.
With
respect to the Class B-1 Certificates, and for purposes of the definitions
of
“Marker Rate” and “Maximum Uncertificated Accrued Interest Deferral Amount”,
REMIC II Regular Interest B-1, and (A) any Distribution Date which occurs on
or
prior to the Optional Termination Date, a fixed rate equal to the lesser of
(i)
7.210% per annum and (ii) the related Net WAC Cap Rate for such Distribution
Date, and (B) for each Distribution Date which occurs thereafter, a fixed rate
equal to the lesser of (i) 7.710% per annum and (ii) the related Net WAC Cap
Rate for such Distribution Date
With
respect to the Class B-2 Certificates, and for purposes of the definitions
of
“Marker Rate” and “Maximum Uncertificated Accrued Interest Deferral Amount”,
REMIC II Regular Interest B-2, and (A) any Distribution Date which occurs on
or
prior to the Optional Termination Date, a fixed rate equal to the lesser of
(i)
7.960% per annum and (ii) the related Net WAC Cap Rate for such Distribution
Date, and (B) for each Distribution Date which occurs thereafter, a fixed rate
equal to the lesser of (i) 8.460% per annum and (ii) the related Net WAC Cap
Rate for such Distribution Date
With
respect to the Class B-3 Certificates, and for purposes of the definitions
of
“Marker Rate” and “Maximum Uncertificated Accrued Interest Deferral Amount”,
REMIC II Regular Interest B-3, and (A) any Distribution Date which occurs on
or
prior to the Optional Termination Date, a fixed rate equal to the lesser of
(i)
8.500% per annum and (ii) the related Net WAC Cap Rate for such Distribution
Date, and (B) for each Distribution Date which occurs thereafter, a fixed rate
equal to the lesser of (i) 9.000% per annum and (ii) the related Net WAC Cap
Rate for such Distribution Date
With
respect to the Class B-4 Certificates, and for purposes of the definitions
of
“Marker Rate” and “Maximum Uncertificated Accrued Interest Deferral Amount”,
REMIC II Regular Interest B-4, and (A) any Distribution Date which occurs on
or
prior to the Optional Termination Date, a fixed rate equal to the lesser of
(i)
9.500% per annum and (ii) the related Net WAC Cap Rate for such Distribution
Date, and (B) for each Distribution Date which occurs thereafter, a fixed rate
equal to the lesser of (i) 10.000% per annum and (ii) the related Net WAC Cap
Rate for such Distribution Date
With
respect to the Class C Interest and any Distribution Date, a rate per annum
equal to the percentage equivalent of a fraction, the numerator of which is
the
sum of the amount determined for each REMIC II Regular Interest (other than
REMIC II Regular Interest IO) equal to the product of (a) the excess, if any,
of
the Uncertificated REMIC II Pass-Through Rate for such REMIC II Regular Interest
over the Marker Rate and (b) a notional amount equal to the Uncertificated
Principal Balance of such REMIC II Regular Interest, and the denominator of
which is the aggregate Uncertificated Principal Balance of such REMIC II Regular
Interests.
With
respect to the Class C Certificate, the Class C Certificate shall not have
a
Pass-Through Rate, but Current Interest for such Certificate and each
Distribution Date shall be an amount equal to 100% of the amounts distributable
to the Class C Interest for such Distribution Date.
With
respect to the Class IO Interest, Class IO Interest shall not have a
Pass-Through Rate, but Current Interest for such interest and each Distribution
Date shall be an amount equal to 100% of the amounts distributable to REMIC
II
Regular Interest IO for such Distribution Date.
With
respect to REMIC V Regular Interest IO, REMIC V Regular Interest IO shall not
have a Pass-Through Rate, but Current Interest for such Regular Interest and
each Distribution Date shall be an amount equal to 100% of the amounts
distributable to the Class IO Interest for such Distribution Date.
Pass-Through
Transfer:
Any
transaction involving either (1) a sale or other transfer of mortgage loans
directly or indirectly to an issuing entity in connection with an issuance
of
publicly offered or privately placed, rated or unrated mortgage-backed
securities or (2) an issuance of publicly offered or privately placed, rated
or
unrated securities, the payments on which are determined primarily by reference
to one or more portfolios of residential mortgage loans.
Percentage
Interest:
With
respect to any Certificate of a specified Class, the Percentage Interest set
forth on the face thereof or the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the Denominations of all
Certificates of such Class.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan and any Adjustment Date therefor,
the fixed percentage set forth in the related Mortgage Note, which is the
maximum amount by which the Mortgage Rate for such Mortgage Loan may increase
or
decrease (without regard to the Maximum Mortgage Rate or the Minimum Mortgage
Rate) on such Adjustment Date from the Mortgage Rate in effect immediately
prior
to such Adjustment Date.
Permitted
Investments:
At any
time, any one or more of the following obligations and securities:
(i) obligations
of the United States or any agency thereof, provided such obligations are backed
by the full faith and credit of the United States;
(ii) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt rating of each
Rating Agency, or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by each Rating
Agency, as evidenced in writing;
(iii) commercial
or finance company paper which is then receiving the highest commercial or
finance company paper rating of each Rating Agency, or such lower rating as
will
not result in the downgrading or withdrawal of the ratings then assigned to
the
Certificates by each Rating Agency, as evidenced in writing;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and examination
by federal and/or state banking authorities (including the Trustee, the Master
Servicer and the Securities Administrator in its commercial banking capacity),
provided that the commercial paper and/or long term unsecured debt obligations
of such depository institution or trust company are then rated one of the two
highest long-term and the highest short-term ratings of each Rating Agency
for
such securities, or such lower ratings as will not result in the downgrading
or
withdrawal of the rating then assigned to the Certificates by each Rating
Agency, as evidenced in writing;
(v) guaranteed
reinvestment agreements issued by any bank, insurance company or other
corporation containing, at the time of the issuance of such agreements, such
terms and conditions as will not result in the downgrading or withdrawal of
the
rating then assigned to the Certificates by each Rating Agency, as evidenced
in
writing;
(vi) repurchase
obligations with respect to any security described in clauses (i) and (ii)
above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (v) above;
(vii) securities
(other than stripped bonds, stripped coupons or instruments sold at a purchase
price in excess of 115% of the face amount thereof) bearing interest or sold
at
a discount issued by any corporation incorporated under the laws of the United
States or any state thereof which, at the time of such investment, have one
of
the two highest short term ratings of each Rating Agency (except if the Rating
Agency is Moody’s, such rating shall be the highest commercial paper rating of
Moody’s for any such securities), such lower rating as will not result in the
downgrading or withdrawal of the rating then assigned to the Certificates by
any
Rating Agency, as evidenced by a signed writing delivered by each Rating
Agency;
(viii) interests
in any money market fund (including any such fund managed or advised by the
Master Servicer and the Securities Administrator or any affiliate thereof)
which
at the date of acquisition of the interests in such fund and throughout the
time
such interests are held in such fund has the highest applicable short term
rating by each Rating Agency rating such fund, such lower rating as will not
result in the downgrading or withdrawal of the ratings then assigned to the
Certificates by each Rating Agency, as evidenced in writing;
(ix) short
term investment funds sponsored by any trust company or banking association
incorporated under the laws of the United States or any state thereof (including
any such fund managed or advised by the Trustee or the Master Servicer or the
Securities Administrator or any affiliate thereof) which on the date of
acquisition has been rated by each Rating Agency in their highest applicable
rating category or such lower rating as will not result in the downgrading
or
withdrawal of the ratings then assigned to the Certificates by each Rating
Agency, as evidenced in writing; and
(x) such
other investments having a specified stated maturity and bearing interest or
sold at a discount acceptable to each Rating Agency and will not result in
the
downgrading or withdrawal of the rating then assigned to the Certificates by
each Rating Agency, as evidenced by a signed writing delivered by each Rating
Agency;
provided,
that no such instrument shall be a Permitted Investment if such instrument
(i)
evidences the right to receive interest only payments with respect to the
obligations underlying such instrument, (ii) is purchased at a premium or (iii)
is purchased at a deep discount; provided further that no such instrument shall
be a Permitted Investment (A) if such instrument evidences principal and
interest payments derived from obligations underlying such instrument and the
interest payments with respect to such instrument provide a yield to maturity
of
greater than 120% of the yield to maturity at par of such underlying
obligations, or (B) if it may be redeemed at a price below the purchase price
(the foregoing clause (B) not to apply to investments in units of money market
funds pursuant to clause (viii) above); provided further that no amount
beneficially owned by any REMIC may be invested in investments (other than
money
market funds) treated as equity interests for federal income tax purposes,
unless the Securities Administrator shall receive an Opinion of Counsel, at
the
expense of the Securities Administrator, to the effect that such investment
will
not adversely affect the status of any such REMIC as a REMIC under the Code
or
result in the imposition of a tax on any such REMIC. Permitted Investments
that
are subject to prepayment or call may not be purchased at a price in excess
of
par.
Permitted
Transferee:
Any
person (x) other than (i) the United States, any State or political subdivision
thereof, any possession of the United States 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) that
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 or (v) an electing large partnership within
the meaning of Section 775(a) of the Code, (y) that is a citizen or resident
of
the United States, a corporation, partnership (other than a partnership that
has
any direct or indirect foreign partners) or other entity (treated as a
corporation or a partnership for federal income tax purposes), created or
organized in or under the laws of the United States, any State thereof or the
District of Columbia, an estate whose income from sources without the United
States is includible in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States, or 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 United States persons have authority to control all substantial decisions
of the trust or if it has a valid election in effect under applicable U.S.
Treasury regulations to be treated as a United States person and (z) other
than
any other Person so designated by the Securities Administrator based upon an
Opinion of Counsel addressed to the Securities Administrator and the Trustee
(which shall not be an expense of the Trustee or the Securities Administrator)
that states that the Transfer of an Ownership Interest in a Residual Certificate
to such Person may cause REMIC I, REMIC II, REMIC III, REMIC IV or REMIC V
to
fail to qualify as a REMIC at any time that any 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, joint- stock
company, limited liability company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
Piggyback
Loan:
A
second lien Mortgage Loan originated by the same originator to the same borrower
at the same time as the first lien Mortgage Loan, each secured by the same
Mortgaged Property.
Prepayment
Assumption:
A
prepayment rate for the Mortgage Loans of 35% CPR.
Prepayment
Charge:
Any
prepayment premium, penalty or charge payable by a Mortgagor in connection
with
any Principal Prepayment on a Mortgage Loan pursuant to the terms of the related
Mortgage Note.
Prepayment
Charge Waiver Amount:
Any
amount paid by the Company to the Master Servicer in respect of a waived
Prepayment Charge pursuant to Section 5.01(a) or by the Servicer to the Master
Servicer pursuant to the GMACM Servicing Agreement.
Prepayment
Interest Excess:
With
respect to any Distribution Date, for each EMC Mortgage Loan that was the
subject of a Principal Prepayment in full during the portion of the related
Prepayment Period occurring between the first day of the calendar month in
which
such Distribution Date occurs and the Determination Date of the calendar month
in which such Distribution Date occurs, an amount equal to interest (to the
extent received) at the applicable Net Mortgage Rate on the amount of such
Principal Prepayment for the number of days commencing on the first day of
the
calendar month in which such Distribution Date occurs and ending on the last
date through which interest is collected from the related
Mortgagor.
Prepayment
Interest Shortfall:
With
respect to any Distribution Date, for each Mortgage Loan that was the subject
of
a partial Principal Prepayment during the related Prepayment Period, or a
Principal Prepayment in full during the related Prepayment Period, or that
became a Liquidated Loan during the prior calendar month, (other than a
Principal Prepayment in full resulting from the purchase of a Mortgage Loan
pursuant to Section 2.02, 2.03, 3.05 or 11.01 hereof), the amount, if any,
by
which (i) one month’s interest at the applicable Net Mortgage Rate on the Stated
Principal Balance of such Mortgage Loan immediately prior to such Principal
Prepayment (or liquidation) or in the case of a partial Principal Prepayment
on
the amount of such prepayment (or liquidation proceeds) exceeds (ii) the amount
of interest paid or collected in connection with such Principal Prepayment
or
such liquidation proceeds less the sum of (a) the Master Servicing Fee and
(b)
the Servicing Fee.
Prepayment
Period:
As
to any
Distribution Date (except the first Distribution Date) and each Mortgage Loan,
for each Principal Prepayment in full, the period commencing on the 16th day
of
the month prior to the month in which the related Distribution Date occurs
and
ending on the 15th day of the month in which such Distribution Date occurs
(as
to the first Distribution Date and any Mortgage Loan, the period commencing
on
the Cut-off Date and ending on the 15th day of the month in which such
Distribution Date occurs) and for each partial Principal Prepayment, the
calendar month prior to the month in which such Distribution Date
occurs.
Principal
Distribution Amount:
With
respect to any Distribution Date, an amount equal to (x) the sum of (1) the
Principal Funds for such Distribution Date and (2) any Extra Principal
Distribution Amount for such Distribution Date minus (y) the amount of any
Overcollateralization Release Amount for such Distribution Date.
Principal
Funds:
With
respect to any Distribution Date, (1) the sum, without duplication, of (a)
all
scheduled principal collected during the related Due Period, (b) all Advances
relating to principal made on or before the Distribution Account Deposit Date,
(c) Principal Prepayments exclusive of prepayment charges or penalties collected
during the related Prepayment Period, (d) the Stated Principal Balance of each
Mortgage Loan that was repurchased by EMC pursuant to Sections 2.02, 2.03 and
by
EMC pursuant to Section 3.05, (e) the aggregate of all Substitution Adjustment
Amounts for the related Determination Date in connection with the substitution
of any Mortgage Loans pursuant to Section 2.03(d), (f) all Liquidation Proceeds
and Subsequent Recoveries collected during the prior calendar month (to the
extent such Liquidation Proceeds and Subsequent Recoveries relate to principal),
in each case to the extent remitted by the Master Servicer to the Distribution
Account pursuant to this Agreement and (g) the principal portion of any proceeds
received from the exercise of a Optional Termination, pursuant to Section 11.01,
minus (2)(i) all amounts required to be reimbursed pursuant to Sections 5.02
and
5.09 or as otherwise set forth in this Agreement and (ii) any Net Swap Payments
or Swap Termination Payments (not due to a Swap Provider Trigger Event and
to
the extent not paid by the Swap Administrator from any upfront payment received
pursuant to any replacement interest rate swap agreement that may be entered
into by the Supplemental Interest Trust Trustee) owed to the Swap Administrator
for payment to the Swap Provider for such Distribution Date and any such
payments remaining unpaid for any prior Distribution Dates, in each case to
the
extent not paid from Interest Funds.
Principal
Prepayment:
Any
Mortgagor payment or other recovery of (or proceeds with respect to) principal
on a Mortgage Loan (including loans purchased or repurchased under Sections
2.02, 2.03, 3.05 and 11.01 hereof) that is received in advance of its scheduled
Due Date and is not accompanied by an amount as to interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment. Partial Principal Prepayments shall be applied by
the
Company or the Servicer, as appropriate, in accordance with the terms of the
related Mortgage Note.
Private
Certificates:
Any of
the Class B-4, Class X, Class C and Residual Certificates.
Prospectus
Supplement:
The
Prospectus Supplement dated October 30, 2006 relating to the public offering
of
the Offered Certificates.
Protected
Account:
Each
account established with respect to receipts on the Mortgage Loans and REO
Property in accordance with Section 5.01 hereof or by the Servicer in accordance
with the GMACM Servicing Agreement. Each Protected Account shall be an Eligible
Account.
PUD:
A
Planned Unit Development.
Purchase
Price:
With
respect to any Mortgage Loan (x) required to be repurchased by the Seller
pursuant to Section 2.02 or 2.03 hereof or (y) that EMC has a right to purchase
pursuant to Section 3.05 hereof, an amount equal to the sum of (i) 100% of
the
outstanding principal balance of the Mortgage Loan as of the date of such
purchase (or if the related Mortgaged Property was acquired with respect
thereto, 100% of the outstanding principal balance at the date of the
acquisition), plus (ii) accrued interest thereon at the applicable Mortgage
Rate
through the first day of the month in which the Purchase Price is to be
distributed to Certificateholders, reduced by any portion of the Servicing
Fee,
Servicing Advances and Advances payable to the purchaser of the Mortgage Loan
plus and (iii) any costs and damages (if any) incurred by the Trust in
connection with any violation of such Mortgage Loan of any anti-predatory
lending laws.
QIB:
A
Qualified Institutional Buyer as defined in Rule 144A promulgated under the
Securities Act.
Rating
Agency:
Each of
S&P and Xxxxx’x. If any such organization or its successor is no longer in
existence, “Rating Agency” shall be a nationally recognized statistical rating
organization, or other comparable Person, designated by the Depositor, notice
of
which designation shall be given to the Trustee and the Securities
Administrator. References herein to a given rating category of each Rating
Agency shall mean such rating category without giving effect to any
modifiers.
Realized
Loss:
With
respect to each Mortgage Loan as to which a Final Recovery Determination has
been made, an amount (not less than zero) equal to (i) the unpaid principal
balance of such Mortgage Loan as of the commencement of the calendar month
in
which the Final Recovery Determination was made, plus (ii) accrued interest
from
the Due Date as to which interest was last paid by the Mortgagor or advanced
through the end of the calendar month in which such Final Recovery Determination
was made, calculated in the case of each calendar month during such period
(A)
at an annual rate equal to the annual rate at which interest was then accruing
on such Mortgage Loan and (B) on a principal amount equal to the Stated
Principal Balance of such Mortgage Loan as of the close of business on the
Distribution Date during such calendar month, minus (iii) the proceeds, if
any,
received in respect of such Mortgage Loan during the calendar month in which
such Final Recovery Determination was made, net of amounts that are payable
therefrom to the Company pursuant to this Agreement or the Servicer pursuant
to
the GMACM Servicing Agreement which have not been previously reimbursed.
Any charged off Mortgage Loan will give rise to a Realized Loss at the time
it
is charged off, as described in Section 6.01. With respect to each Mortgage
Loan
which is the subject of a Servicing Modification, (a) (1) the amount by which
the interest portion of a monthly payment or the principal balance of such
Mortgage Loan was reduced or (2) the sum of any other amounts owing under the
Mortgage Loan that were forgiven and that constitute Servicing Advances that
are
reimbursable to the Company or the Servicer, and (b) any such amount with
respect to a monthly payment that was or would have been due in the month
immediately following the month in which a Principal Prepayment or the Purchase
Price of such Mortgage Loan is received or is deemed to have been received
and
not paid due to a Servicing Modification. In addition, to the extent the
Company, the Servicer or the Master Servicer receives Subsequent Recoveries
with
respect to any Mortgage Loan, the amount of the Realized Loss with respect
to
that Mortgage Loan will be reduced to the extent such recoveries are distributed
to any Class of Certificates or applied to increase the Excess Spread on any
Distribution Date.
With
respect to any REO Property as to which a Final Recovery Determination has
been
made, an amount (not less than zero) equal to (i) the unpaid principal balance
of the related Mortgage Loan as of the date of acquisition of such REO Property
on behalf of REMIC I, plus (ii) accrued interest from the Due Date as to which
interest was last paid by the Mortgagor in respect of the related Mortgage
Loan
through the end of the calendar month immediately preceding the calendar month
in which such REO Property was acquired, calculated in the case of each calendar
month during such period (A) at an annual rate equal to the annual rate at
which
interest was then accruing on the related Mortgage Loan and (B) on a principal
amount equal to the Stated Principal Balance of the related Mortgage Loan as
of
the close of business on the Distribution Date during such calendar month,
plus
(iii) REO Imputed Interest for such REO Property for each calendar month
commencing with the calendar month in which such REO Property was acquired
and
ending with the calendar month in which such Final Recovery Determination was
made, minus (iv) the aggregate of all unreimbursed Advances and Servicing
Advances.
With
respect to each Mortgage Loan which has become the subject of a Deficient
Valuation, the difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and the principal
balance of the Mortgage Loan as reduced by the Deficient Valuation.
With
respect to each Mortgage Loan which has become the subject of a Debt Service
Reduction, the portion, if any, of the reduction in each affected Monthly
Payment attributable to a reduction in the Mortgage Rate imposed by a court
of
competent jurisdiction. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
Record
Date:
With
respect to any Distribution Date and the Class A Certificates and Class M
Certificates, so long as such Classes of Certificates are Book-Entry
Certificates, the Business Day preceding such Distribution Date, and otherwise,
the close of business on the last Business Day of the month preceding the month
in which such Distribution Date occurs. With respect to any Distribution Date
and the Class B, Class C, Class X and Residual Certificates, the close of
business on the last Business Day of the month preceding the month in which
such
Distribution Date occurs.
Reference
Banks:
Shall
mean leading banks selected by the Securities Administrator and engaged in
transactions in Eurodollar deposits in the international Eurocurrency market
(i)
with an established place of business in London, (ii) which have been designated
as such by the Securities Administrator and (iii) which are not controlling,
controlled by, or under common control with, the Depositor, the Seller or the
Master Servicer.
Reference
Bank Rate:
With
respect to any Accrual Period shall mean the arithmetic mean, rounded upwards,
if necessary, to the nearest whole multiple of 0.03125%, of the offered rates
for United States dollar deposits for one month that are quoted by the Reference
Banks as of 11:00 a.m., New York City time, on the related Interest
Determination Date to prime banks in the London interbank market for a period
of
one month in an amount approximately equal to the aggregate Certificate
Principal Balance of the Class A Certificates and Class M Certificates for
such
Accrual Period, provided that at least two such Reference Banks provide such
rate. If fewer than two offered rates appear, the Reference Bank Rate will
be
the arithmetic mean, rounded upwards, if necessary, to the nearest whole
multiple of 0.03125%, of the rates quoted by one or more major banks in New
York
City, selected by the Securities Administrator, as of 11:00 a.m., New York
City
time, on such date for loans in United States dollars to leading European banks
for a period of one month in amounts approximately equal to the aggregate
Certificate Principal Balance of the Class A Certificates and Class M
Certificates for such Accrual Period.
Regular
Certificate:
Any
Certificate other than a Residual Certificate or a Class X
Certificate.
Regular
Interest:
A
“regular interest” in a REMIC within the meaning of Section 860G(a)(1) of the
Code.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Relief
Act:
The
Servicemembers Civil Relief Act, as amended, or similar state law.
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 Relief Act.
Remaining
Excess Spread:
With
respect to any Distribution Date, the Excess Spread less any Extra Principal
Distribution Amount, in each case for such Distribution Date.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of section 860D of the
Code.
REMIC
I:
The
segregated pool of assets described in the Preliminary Statement and Section
6.07(a).
REMIC
I Regular Interest:
Any of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. Each REMIC I Regular
Interest shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto. The designations for the respective
REMIC I Regular Interests are set forth in the Preliminary Statement hereto.
The
REMIC I Regular Interests consist of REMIC I Regular Interests I-1-A through
REMIC I Regular Interest I-45-B, each as designated in the Preliminary Statement
hereto.
REMIC
II:
The
segregated pool of assets described in the Preliminary Statement and Section
6.07(a).
REMIC
II Regular Interest:
Any of
the separate non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a Regular Interest in REMIC II. Each REMIC II
Regular Interest shall accrue interest at the related Uncertificated REMIC
II
Pass-Through Rate in effect from time to time, and (other than REMIC II Regular
Interest IO) shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto. The designations for the respective REMIC II Regular Interests are
set
forth in the Preliminary Statement hereto.
REMIC
II Interest Loss Allocation Amount:
With
respect to any Distribution Date, an amount (subject to adjustment based on
the
actual number of days elapsed in the respective Accrual Period) equal to (a)
the
product of (i) the aggregate Stated Principal Balance of the Mortgage Loans
and
the related REO Properties then outstanding and (ii) the Uncertificated REMIC
II
Pass-Through Rate for REMIC II Regular Interest AA minus the Marker Rate,
divided by (b) 12.
REMIC
II Overcollateralization Amount:
With
respect to any date of determination, (i) 1.00% of the aggregate Uncertificated
Principal Balance of the REMIC II Regular Interests (other than REMIC II Regular
Interest IO) minus (ii) the aggregate Uncertificated Principal Balance of each
REMIC II Regular Interest for which a Class A, Class M or Class B Certificate
is
a Corresponding Certificate, in each case as of such date of
determination.
REMIC
II Principal Loss Allocation Amount:
With
respect to any Distribution Date, an amount equal to the product of (i) the
aggregate Stated Principal Balance of the Mortgage Loans and the related REO
Properties then outstanding and (ii) 1 minus a fraction, the numerator of which
is two (2) times the aggregate Uncertificated Principal Balance of each REMIC
II
Regular Interest for which a Class A, Class M or Class B Certificate is a
Corresponding Certificate and the denominator of which is the aggregate
Uncertificated Principal Balance of each REMIC II Regular Interest for which
a
Class A, Class M or Class B Certificate is a Corresponding Certificate and
REMIC
II Regular Interest ZZ.
REMIC
II Required Overcollateralization Amount:
1.00%
of the Overcollateralization Target Amount.
REMIC
III:
The
segregated pool of assets described in the Preliminary Statement and Section
6.07(a).
REMIC
III Regular Interest:
The
Class C Interest, Class IO Interest or any Regular Interest in REMIC III the
ownership of which is represented by any of the Class A, Class M and Class
B
Certificates.
REMIC
IV:
The
segregated pool of assets consisting of the Class C Interest conveyed in trust
to the Trustee, for the benefit of the Holders of the Class C Certificates
and
the Class RX Certificate (in respect of the Class R-4 Interest), with respect
to
which a separate REMIC election is to be made.
REMIC
V:
The
segregated pool of assets consisting of the Class IO Interest conveyed in trust
to the Trustee, for the benefit of the holders of REMIC V Regular Interest
IO
and the Class RX Certificate (in respect of the Class R-5 Interest), with
respect to which a separate REMIC election is to be made.
REMIC
Opinion:
Shall
mean an Opinion of Counsel to the effect that the proposed action will not
cause
any of REMIC I, REMIC II, REMIC III, REMIC IV or REMIC V to fail to qualify
as a
REMIC at any time that any Certificates are outstanding.
REMIC
Provisions:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at Sections 860A through 860G of the Code,
and
related provisions, and proposed, temporary and final regulations and published
rulings, notices and announcements promulgated thereunder, as the foregoing
may
be in effect from time to time, as well as provisions of applicable state
laws.
REMIC
Regular Interests:
The
REMIC I Regular Interests and REMIC II Regular Interests.
Remittance
Date:
Shall
mean (i) with respect to the Company, the Distribution Account Deposit Date
and
(ii) with respect to the Servicer, the Business Day as specified in the GMACM
Servicing Agreement.
Remittance
Report:
Shall
mean a report to the Securities Administrator in an electronic format (or by
such other means as the Master Servicer and the Securities Administrator may
agree from time to time) containing such data and information, as agreed to
by
the Master Servicer and the Securities Administrator such as to permit the
Securities Administrator to prepare the Monthly Statement to
Certificateholders.
REO
Imputed Interest:
As to
any REO Property, for any calendar month during which such REO Property was
at
any time part of REMIC I, one month’s interest at the applicable Net Mortgage
Rate on the Stated Principal Balance of such REO Property (or, in the case
of
the first such calendar month, of the related Mortgage Loan, if appropriate)
as
of the close of business on the Distribution Date in such calendar
month.
REO
Property:
A
Mortgaged Property acquired by the Company or the Servicer on behalf of the
Trust Fund through foreclosure or deed-in-lieu of foreclosure in connection
with
a defaulted Mortgage Loan.
Replacement
Mortgage Loan:
A
Mortgage Loan or Mortgage Loans in the aggregate substituted by the Seller
for a
Deleted Mortgage Loan, which must, on the date of such substitution, as
confirmed in a Request for Release, (i) have a Stated Principal Balance, after
deduction of the principal portion of the Scheduled Payment due in the month
of
substitution, not in excess of, and not less than 90% of, the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) if the Replacement Mortgage Loan
is a
fixed rate Mortgage Loan, have a fixed Mortgage Rate not less than or more
than
1% per annum higher than the Mortgage Rate of the Deleted Mortgage Loan; (iii)
have the same or higher credit quality characteristics than that of the Deleted
Mortgage Loan; (iv) have a Combined Loan-to-Value Ratio no higher than that
of
the Deleted Mortgage Loan; (v) have a remaining term to maturity no greater
than
(and not more than one year less than) that of the Deleted Mortgage Loan; (vi)
not permit conversion of the Mortgage Rate from a fixed rate to a variable
rate;
(vii) have the same lien priority as the Deleted Mortgage Loan; (viii)
constitute the same occupancy type as the Deleted Mortgage Loan or be owner
occupied; (ix) if the Replacement Mortgage Loan is an Adjustable Rate Mortgage
Loan, have a Maximum Mortgage Rate not less than the Maximum Mortgage Rate
on
the Deleted Mortgage Loan, (x) if the Replacement Mortgage Loan is an Adjustable
Rate Mortgage Loan, have a Minimum Mortgage Rate not less than the Minimum
Mortgage Rate of the Deleted Mortgage Loan, (xi) if the Replacement Mortgage
Loan is an Adjustable Rate Mortgage Loan, have a Gross Margin equal to or
greater than the Gross Margin of the Deleted Mortgage Loan, (xii) if the
Replacement Mortgage Loan is an Adjustable Rate Mortgage Loan, have a next
Adjustment Date not more than two months later than the next Adjustment Date
on
the Deleted Mortgage Loan, (xiii) comply with each representation and warranty
set forth in Section 7 of the Mortgage Loan Purchase Agreement and (xiv) the
Custodian has delivered a Final Certification noting no defects or
exceptions.
Reportable
Event:
The
meaning set forth in Section 3.18(a)(iii).
Repurchase
Price:
With
respect to each Mortgage Loan, a price equal to (i) the outstanding principal
balance of such Mortgage Loan, plus (ii) interest on such outstanding principal
balance at the Mortgage Rate (net of the Servicing Fee Rate) from the last
date
through which interest has been paid to the end of the month of repurchase,
less
(iii) amounts advanced by the Company, the Servicer or the Master Servicer
in
respect of such repurchased Mortgage Loan which are being held in the Master
Servicer Collection Account for remittance to the Securities Administrator
plus
(iv) any costs and damages (if any) incurred by the Trust in connection with
any
violation of such Mortgage Loan of any anti-predatory lending laws.
Request
for Release:
The
Request for Release to be submitted by the Seller, the Company, the Servicer
or
the Master Servicer to the respective Custodian substantially in the form of
Exhibit G hereto or other form attached as an exhibit to the related Custodial
Agreement. Each Request for Release furnished to the respective Custodian by
the
Seller, the Company, the Servicer or the Master Servicer shall be in duplicate
and shall be executed by an officer of such Person or a Servicing Officer (or,
if furnished electronically to the respective Custodian, shall be deemed to
have
been sent and executed by an officer of such Person or a Servicing Officer)
of
the Seller, the Company, the Servicer or the Master Servicer, as
applicable.
Required
Insurance Policy:
With
respect to any Mortgage Loan, any insurance policy that is required to be
maintained from time to time under this Agreement or the GMACM Servicing
Agreement.
Reserve
Fund:
Shall
mean the separate trust account created and maintained by the Securities
Administrator pursuant to Section 4.12 hereof.
Reserve
Fund Deposit:
With
respect to the Reserve Fund, an amount equal to $5,000, which the Depositor
shall initially deposit into the Reserve Fund pursuant to Section 4.12
hereof.
Residual
Certificates:
The
Class R-1, Class R-2, Class R-3 and Class RX Certificates (representing
ownership of the Class R-4 Interest and Class R-5 Interest), each evidencing
the
sole class of Residual Interests in the related REMIC.
Residual
Interest:
The
sole class of Residual Interests in a REMIC within the meaning of Section
860G(a)(2) of the Code.
Responsible
Officer:
With
respect to the Trustee and the Securities Administrator, any Vice President,
any
Assistant Vice President, the Secretary, any Assistant Secretary, or any Trust
Officer in its respective Corporate Trust Office with specific responsibility
for the transactions contemplated hereby, any other officer customarily
performing functions similar to those performed by any of the above designated
officers or other officers of the Trustee or the Securities Administrator as
specified by the Trustee or the Securities Administrator, respectively, as
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.
S&P:
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc., and any
successor thereto.
Xxxxxxxx-Xxxxx
Act:
The
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
Xxxxxxxx-Xxxxx
Certification:
The
meaning set forth in Section 3.18(a)(iv).
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.
Securities
Act:
The
Securities Act of 1933, as amended, and the rules and regulations
thereunder.
Securities
Administrator:
LaSalle
Bank National Association, in its capacity as securities administrator
hereunder, and its successors and assigns.
Securities
Act:
The
Securities Act of 1933, as amended, and the rules and regulations
thereunder.
Seller:
EMC in
its capacity as seller of the Mortgage Loans to the Depositor.
Senior
Certificates:
The
Class A Certificates.
Servicer:
GMACM.
Servic(es)(ing):
In
accordance with Regulation AB, the act of servicing and administering the
Mortgage Loans or any other assets of the Trust by an entity that meets the
definition of “servicer’ set forth in Item 1101 of Regulation AB and is subject
to the disclosure requirements set forth in 1108 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall have
the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable legal fees) incurred in the performance by the Servicer
or
the Company of their servicing obligations hereunder or under the GMACM
Servicing Agreement, including, but not limited to, the cost of (i) the
preservation, restoration and protection of a Mortgaged Property, (ii) any
enforcement or judicial proceedings, including foreclosures, and including
any
expenses incurred in relation to any such proceedings that result from the
Mortgage Loan being registered in the MERS® System, (iii) the management and
liquidation of any REO Property (including, without limitation, realtor’s
commissions) and (iv) compliance with any obligations under Section 3.07 hereof
to cause insurance to be maintained.
Servicing
Criteria:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
Servicing
Fee:
As to
each EMC Mortgage Loan and any Distribution Date, an amount equal to
1/12th
of the
Servicing Fee Rate multiplied by the Stated Principal Balance of such EMC
Mortgage Loan payable solely from interest collections as of the Due Date in
the
month preceding the month in which such Distribution Date occurs. As to each
Mortgage Loan serviced by the Servicer and any Distribution Date, an amount
equal to 1/12th
of the
Servicing Fee Rate multiplied by the unpaid principal balance of each such
mortgage loan payable solely from interest collections, as of the Due Date
in
the month preceding the month in which such Distribution Date
occurs.
Servicing
Fee Rate:
0.5000%
per annum.
Servicing
Modification:
With respect to any Mortgage Loan that is in default or, in the reasonable
judgment of the Company or the Servicer, as to which default is reasonably
foreseeable, any modification which is effected by the Company or the Servicer
in accordance with the terms of this Agreement or the GMACM Servicing Agreement
which results in any change in the outstanding Stated Principal Balance, any
change in the Mortgage Rate or any extension of the term of such Mortgage
Loan.
Servicing
Officer:
Any
officer of the Company or the Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans (i) in the case of the
Company, whose name and facsimile signature appear on a list of servicing
officers furnished to the Master Servicer by the Company on the Closing Date
pursuant to this Agreement, as such list may from time to time be amended and
(ii) in the case of the Servicer, as to which evidence reasonably acceptable
to
the Master Servicer or the Trustee, of due authorization, by such party has
been
furnished from time to time to the Master Servicer or the Trustee.
Significance
Estimate:
With
respect to any Distribution Date, and in accordance with Item 1115 of Regulation
AB, shall be an amount determined based on the reasonable good-faith estimate
by
the Seller or its affiliate of the aggregate Maximum Probable Exposure of the
outstanding Class A, Class M and Class B Certificates to the Swap Agreement.
Significance
Percentage:
With
respect to any Distribution Date, and in accordance with Item 1115 of Regulation
AB, shall be a percentage equal to the Significance Estimate divided by the
aggregate outstanding Certificate Principal Balance of the Class A, Class M
and
Class B Certificates, prior to the distribution of the Principal Distribution
Amount on such Distribution Date.
Sixty-Day
Plus Delinquency Percentage:
With
respect to any Distribution Date, is the arithmetic average for each of the
three successive Distribution Dates ending with the applicable Distribution
Date
of the percentage equivalent of a fraction, the numerator of which is the
aggregate Stated Principal Balance of the Mortgage Loans that are 60 or more
days delinquent in the payment of principal or interest for the relevant
Distribution Date, including any Mortgage Loans in foreclosure, REO and Mortgage
Loans with a related Mortgagor subject to bankruptcy proceedings, and the
denominator of which is the aggregate Stated Principal Balance of all of the
Mortgage Loans immediately preceding such Distribution Date.
Seller:
EMC.
Sponsor:
EMC
Mortgage Corporation, in its capacity as sponsor hereunder.
Startup
Day:
The
Startup Day for each REMIC formed hereunder shall be the Closing
Date.
Stated
Principal Balance:
With
respect to any Mortgage Loan or related REO Property and any Distribution Date,
the Cut-off Date Principal Balance thereof minus the sum of (i) the principal
portion of the Scheduled Payments due with respect to such Mortgage Loan during
each Due Period ending prior to such Distribution Date (and irrespective of
any
delinquency in their payment), (ii) all Principal Prepayments with respect
to
such Mortgage Loan received prior to or during the related Prepayment Period
(iii) all Liquidation Proceeds to the extent applied by the Company or the
Servicer as recoveries of principal in accordance with Section 3.12 or the
GMACM
Servicing Agreement with respect to such Mortgage Loan, that were received
by
the Company or the Servicer as of the close of business on the last day of
the
calendar month immediately preceding such Distribution Date and (iv) any
Realized Losses on such Mortgage Loan incurred during the prior calendar month.
The Stated Principal Balance of a Liquidated Loan equals zero.
Stepdown
Date:
The
earlier to occur of, (I) the first Distribution Date following the Distribution
Date for which the Certificate Principal Balance for each of the Class A
Certificates has been reduced to zero, and (II) the later to occur of (a)
the
Distribution Date in November 2009 or (b) the first Distribution Date on which
the Current Specified Enhancement Percentage is greater than or equal to
58.90%.
Subordinated
Certificates:
The
Class M, Class B, Class C and Residual Certificates.
Subsequent
Recoveries:
As of
any Distribution Date, amounts received by the Master Servicer (net of any
related expenses permitted to be reimbursed pursuant to Section 5.02) or surplus
amounts held by the Master Servicer, Company and the Servicer to cover estimated
expenses (including, but not limited to, recoveries in respect of the
representations and warranties made by EMC pursuant to the Mortgage Loan
Purchase Agreement) specifically related to a Mortgage Loan that was the subject
of a liquidation or final disposition of any REO Property as of the end of
the
prior calendar month that resulted in a Realized Loss.
Subservicing
Agreement:
Any
agreement entered into between the Company and a subservicer with respect to
the
subservicing of any Mortgage Loan hereunder by such subservicer.
Substitution
Adjustment Amount:
The
meaning ascribed to such term pursuant to Section 2.03(d).
Successor
Master Servicer:
The
meaning ascribed to such term pursuant to Section 8.06.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 4.12 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Swap Administration Agreement, the Swap Account and REMIC V
Regular Interest IO. For the avoidance of doubt, the Supplemental Interest
Trust, the Swap Agreement, the Swap Account and the Swap Administration
Agreement do not constitute parts of the Trust Fund or any REMIC.
Supplemental
Interest Trust Trustee:
LaSalle
not in its individual capacity but solely in its capacity as Supplemental
Interest Trust Trustee and any successor thereto, and any corporation or
national banking association resulting from or surviving any consolidation
or
merger to which it or its successors may be a party and any successor
Supplemental Interest Trust Trustee as may from time to time be serving as
successor Supplemental Interest Trust Trustee.
Swap
Account:
The
separate trust account created and maintained by the Swap Administrator, and
held within the Supplemental Interest Trust, pursuant to the Swap Administration
Agreement.
Swap
Administrator:
LaSalle
acting as swap administrator under the Swap Administration
Agreement.
Swap
Administration Agreement:
The
Swap Administration Agreement, dated October 30, 2006, pursuant to which the
Swap Administrator will make payments to the Swap Provider and the Class A,
Class M and Class B Certificateholders, and certain other payments, as such
agreement may be amended or supplemented from time to time.
Swap
Agreement:
The
interest rate swap agreement between the Swap Provider and Supplemental Interest
Trust Trustee, acting as trustee on behalf of the Supplemental Interest Trust,
together with any schedules, confirmations or other agreements relating thereto,
attached hereto as Exhibit N.
Swap
LIBOR:
For any
Distribution Date, a per annum rate equal to the Floating Rate Option (as
defined in the Swap Agreement) for the related Calculation Period (as defined
in
the Swap Agreement).
Swap
Optional Termination Payment:
As
defined in Section 11.01.
Swap
Provider:
The
swap provider under the Swap Agreement either (a) entitled to receive payments
from the Swap Administrator from amounts payable by the Trust Fund under this
Agreement or (b) required to make payments to the Swap Administrator for
distribution as provided herein, in either case pursuant to the terms of the
Swap Agreement, and any successor in interest or assign. Initially, the Swap
Provider shall be Bear Xxxxxxx Financial Products Inc.
Swap
Provider Trigger Event:
With
respect to any Distribution Date, (i) an Event of Default under the Swap
Agreement with respect to which the Swap Provider is a Defaulting Party, (ii)
a
Termination Event under the Swap Agreement with respect to which the Swap
Provider is the sole Affected Party, or (iii) an Additional Termination Event
under the Swap Agreement with respect to which the Swap Provider is the sole
Affected Party.
Swap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Swap Agreement,
the payment to be made by the Swap Administrator to the Swap Provider from
payments from the Trust Fund, or by the Swap Provider to the Swap Administrator
for payment to the Trust Fund, as applicable, pursuant to the terms of the
Swap
Agreement.
Tax
Matters Person:
The
person designated as “tax matters person” in the manner provided under Treasury
Regulation Sections 1.860F-4(d) and 301.6231(a)(7)-1T. The holder of the
greatest Percentage Interest in a Class of Residual Certificates shall be the
Tax Matters Person for the related REMIC. The Securities Administrator, or
any
successor thereto or assignee thereof, shall serve as tax administrator
hereunder and as agent for the related Tax Matters Person.
Transfer:
Any
direct or indirect transfer or sale of any Ownership Interest in a
Certificate.
Transfer
Affidavit:
As
defined in Section 7.02(c)(ii).
Trigger
Event:
With
respect to any Distribution Date, a “ Trigger Event” shall have occurred if any
of the following tests is not satisfied: (i) the Sixty-Day Plus Delinquency
Percentage is less than 13.58% of the Current Specified Enhancement Percentage,
or (ii) (A) for any Distribution Date from and including the Distribution Date
in November 2008 to and including the Distribution Date in October 2009, the
Cumulative Realized Loss Percentage for such Distribution Date is less than
2.40% plus an additional 1/12th of 2.95% for each Distribution Date thereafter
up to and including the Distribution Date in October 2009, (B) for any
Distribution Date from and including the Distribution Date in November 2009
to
and including the Distribution Date in October 2010, the Cumulative Realized
Loss Percentage for such Distribution Date is less than 5.35% plus an additional
1/12th of 2.95% for each Distribution Date thereafter up to and including the
Distribution Date in October 2010, (C) for any Distribution Date from and
including the Distribution Date in November 2010 to and including the
Distribution Date in October 2011, the Cumulative Realized Loss Percentage
for
such Distribution Date is less than 8.30% plus an additional 1/12th of 2.20%
for
each Distribution Date thereafter up to and including the Distribution Date
in
October 2011, (D) for any Distribution Date from and including the Distribution
Date in November 2011 to and including the Distribution Date in October 2012,
the Cumulative Realized Loss Percentage for such Distribution Date is less
than
10.50% plus an additional 1/12th of 0.50% for each Distribution Date thereafter
up to and including the Distribution Date in October 2012, and (E) for any
Distribution Date thereafter, the Cumulative Realized Loss Percentage for such
Distribution Date is less than 11.00%.
Trust:
As
defined in Section 2.07.
Trust
Fund:
The
corpus of the trust created hereunder consisting of (i) the Mortgage Loans
and
all interest accruing and principal due with respect thereto after the Cut-off
Date to the extent not applied in computing the Cut-off Date Principal Balance
thereof; (ii) the Distribution Account, the Reserve Fund, the Master Servicer
Collection Account maintained by the Master Servicer and the Protected Accounts
maintained by the Company and the Servicer and all amounts deposited therein
pursuant to the applicable provisions of this Agreement and the GMACM Servicing
Agreement; (iii) property that secured a Mortgage Loan and has been acquired
by
foreclosure, deed in lieu of foreclosure or otherwise; (iv) the mortgagee’s
rights under the Insurance Policies with respect to the Mortgage Loans; (v)
the
GMACM Servicing Agreement and the GMACM Assignment Agreement; (vii) the rights
under the Swap Administration Agreement; (viii) the rights under the Mortgage
Loan Purchase Agreement; and (ix) all proceeds of the foregoing, including
proceeds of conversion, voluntary or involuntary, of any of the foregoing into
cash or other liquid property. The Reserve Fund shall constitute an asset of
the
Trust Fund but will not be included in REMIC I, REMIC II, REMIC III, REMIC
IV or
REMIC V.
Trustee:
Citibank, N.A., a national banking association, as trustee for the benefit
of
the Certificateholders under this Agreement, and any successor thereto, and
any
corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee as may from time to time be serving as successor trustee
hereunder.
Uncertificated
Accrued Interest:
With
respect to each REMIC Regular Interest on each Distribution Date, an amount
equal to one month’s interest at the related Uncertificated Pass-Through Rate on
the related Uncertificated Principal Balance or related Uncertificated Notional
Amount of such REMIC Regular Interest. In each case, Uncertificated Accrued
Interest will be reduced by any Prepayment Interest Shortfalls and Relief Act
Interest Shortfalls (allocated to such REMIC Regular Interests as set forth
in
Section 1.02).
Uncertificated
Notional Amount:
With
respect to the Class C Interest and any Distribution Date, an amount equal
to
the aggregate Uncertificated Principal Balance of the REMIC II Regular Interests
(other than REMIC II Regular Interest IO) for such Distribution
Date.
With
respect to REMIC II Regular Interest IO and each Distribution Date listed below,
the aggregate Uncertificated Principal Balance of the REMIC I Regular Interests
ending with the designation “A” listed below:
|
Distribution
Date
|
REMIC
I Regular Interests
|
|
1
|
I-1-A
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through X-00-X
|
|
0
|
X-0-X
xxxxxxx X-00-X
|
|
0
|
X-0-X
through I-45-A
|
|
10
|
I-10-A
through I-45-A
|
|
11
|
I-11-A
through I-45-A
|
|
12
|
I-12-A
through I-45-A
|
|
13
|
I-13-A
through I-45-A
|
|
14
|
I-14-A
through I-45-A
|
|
15
|
I-15-A
through I-45-A
|
|
16
|
I-16-A
through I-45-A
|
|
17
|
I-17-A
through I-45-A
|
|
18
|
I-18-A
through I-45-A
|
|
19
|
I-19-A
through I-45-A
|
|
20
|
I-20-A
through I-45-A
|
|
21
|
I-21-A
through I-45-A
|
|
22
|
I-22-A
through I-45-A
|
|
23
|
I-23-A
through I-45-A
|
|
24
|
I-24-A
through I-45-A
|
|
25
|
I-25-A
through I-45-A
|
|
26
|
I-26-A
through I-45-A
|
|
27
|
I-27-A
through I-45-A
|
|
28
|
I-28-A
through I-45-A
|
|
29
|
I-29-A
through I-45-A
|
|
30
|
I-30-A
through I-45-A
|
|
31
|
I-31-A
through I-45-A
|
|
32
|
I-32-A
through I-45-A
|
|
33
|
I-33-A
through I-45-A
|
|
34
|
I-34-A
through I-45-A
|
|
35
|
I-35-A
through I-45-A
|
|
36
|
I-36-A
through I-45-A
|
|
37
|
I-37-A
through I-45-A
|
|
38
|
I-38-A
through I-45-A
|
|
39
|
I-39-A
through I-45-A
|
|
40
|
I-40-A
through I-45-A
|
|
41
|
I-41-A
through I-45-A
|
|
42
|
I-42-A
through I-45-A
|
|
43
|
I-43-A
through I-45-A
|
|
44
|
I-44-A
through I-45-A
|
|
45
|
I-45-A
|
|
thereafter
|
$0.00
|
With
respect to the Class IO Interest and any Distribution Date, an amount equal
to
the Uncertificated Notional Amount of the REMIC II Regular Interest IO. With
respect to REMIC V Regular Interest IO, an amount equal to the Uncertificated
Notional Amount of the Class IO Interest.
Uncertificated
Pass-Through Rate:
The
Uncertificated REMIC I Pass-Through Rate or Uncertificated REMIC II Pass-Through
Rate.
Uncertificated
Principal Balance:
The
amount of REMIC Regular Interests and Class C Interest outstanding as of any
date of determination. As of the Closing Date, the Uncertificated Principal
Balance of each REMIC Regular Interest and Class C Interest shall equal the
amount set forth in the Preliminary Statement hereto as its initial
uncertificated principal balance. On each Distribution Date, the Uncertificated
Principal Balance of the REMIC Regular Interests shall be reduced by all
distributions of principal made on such REMIC Regular Interests on such
Distribution Date pursuant to Section 6.07 and, if and to the extent necessary
and appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 6.05, and the Uncertificated Principal Balance
of
REMIC II Regular Interest ZZ shall be increased by interest deferrals as
provided in Section 6.07(c)(1)(ii). The Uncertificated Principal Balance of
each
REMIC Regular Interest and Class C Interest shall never be less than zero.
With
respect to the Class C Interest as of any date of determination, an amount
equal
to the excess, if any, of (A) the then aggregate Uncertificated Principal
Balance of the REMIC II Regular Interests over (B) the then aggregate
Certificate Principal Balance of the Class A, Class M and Class B Certificates
then outstanding.
Uncertificated
REMIC I Pass-Through Rate:
With
respect to each REMIC I Regular Interest ending with the designation “A” and any
Distribution Date, a per annum rate equal to the weighted average Net Mortgage
Rate of the Mortgage Loans multiplied by 2, subject to a maximum rate of
10.3340%. With respect to each REMIC I Regular Interest ending with the
designation “B” and any Distribution Date, the greater of (x) a per annum rate
equal to the excess, if any, of (1) 2 multiplied by the weighted average Net
Mortgage Rate of the Mortgage Loans over (2) 10.3340%, and (y) 0.00% per annum.
Uncertificated
REMIC II Pass-Through Rate:
With
respect to each REMIC II Regular Interest (other than REMIC II Regular Interest
IO), and any Distribution Date, a per annum rate equal to the weighted average
of (x) the Uncertificated REMIC I Pass-Through Rates for the REMIC I Regular
Interests ending with the designation “B” for such Distribution Date and (y) the
rates listed below for the REMIC I Regular Interests ending with the designation
“A” for such Distribution Date, in each case weighted on the basis of the
Uncertificated Principal Balances of each such REMIC I Regular Interest for
such
Distribution Date:
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
|
1
|
I-1-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
2
|
I-2-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
3
|
I-3-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-2-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
4
|
I-4-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-3-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
5
|
I-5-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-4-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
6
|
I-6-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-5-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
7
|
I-7-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-6-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
8
|
I-8-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-7-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
9
|
I-9-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-8-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
10
|
I-10-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-9-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
11
|
I-11-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-10-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
12
|
I-12-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-11-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
13
|
I-13-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-12-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
14
|
I-14-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-13-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
15
|
I-15-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-14-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
16
|
I-16-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-15-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
17
|
I-17-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-16-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
18
|
I-18-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-17-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
19
|
I-19-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-18-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
20
|
I-20-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-19-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
21
|
I-21-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-20-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
22
|
I-22-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-21-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
23
|
I-23-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-22-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
24
|
I-24-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-23-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
25
|
I-25-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-24-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
26
|
I-26-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
27
|
I-27-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-26-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
28
|
I-28-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-27-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
29
|
I-29-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-28-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
30
|
I-30-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-29-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
31
|
I-31-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-30-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
32
|
I-32-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-31-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
33
|
I-33-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-32-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
34
|
I-34-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-33-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
35
|
I-35-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-34-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
36
|
I-36-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-35-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
37
|
I-37-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-36-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
38
|
I-38-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-37-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
39
|
I-39-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-38-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
40
|
I-40-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-39-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
41
|
I-41-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-40-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
42
|
I-42-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-41-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
43
|
I-43-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-42-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
44
|
I-44-A
through I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-43-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
45
|
I-45-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC I Pass-Through Rate
|
|
I-1-A
through I-44-A
|
Uncertificated
REMIC I Pass-Through Rate
|
|
|
thereafter
|
I-1-A
through I-45-A
|
Uncertificated
REMIC I Pass-Through Rate
|
With
respect to REMIC II Regular Interest IO and any Distribution Date, a per annum
rate equal to the excess, if any, of (x) the weighted average of the
Uncertificated REMIC I Pass-Through Rates for the REMIC I Regular Interests
ending with the designation “A” for such Distribution Date, over (y) 2
multiplied by Swap LIBOR.
Unpaid
Realized Loss Amount:
With
respect to the Class A Certificates and as to any Distribution Date is the
excess of Applied Realized Loss Amounts with respect to such Class over the
sum
of all distributions in reduction of the Applied Realized Loss Amounts on all
previous Distribution Dates. Any amounts distributed to the Class A Certificates
in respect of any Unpaid Realized Loss Amount shall not be applied to reduce
the
Certificate Principal Balance of such Class.
Voting
Rights:
The
portion of the voting rights of all the Certificates that is allocated to any
Certificate for purposes of the voting provisions hereunder. Voting Rights
shall
be allocated (i) 92% to the Class A, Class M and Class B Certificates, (ii)
3%
to the Class C Certificates until paid in full, (iii) 1% to each of the Class
X,
Class R-1, Class R-2, Class R-3 Certificates and Class RX Certificates, with
the
allocation among the Certificates (other than the Class X, Class C and Residual
Certificates) to be in proportion to the Certificate Principal Balance of each
Class relative to the Certificate Principal Balance of all other such Classes.
Voting Rights will be allocated among the Certificates of each such Class in
accordance with their respective Percentage Interests.
Xxxxx
Fargo:
Xxxxx
Fargo Bank, National Association, and any successor in interest.
Xxxxx
Fargo Custodial Agreement:
The
Custodial Agreement, dated as of October 30, 2006, among the Depositor, EMC,
as
Seller, the Master Servicer, the Securities Administrator, the Trustee and
Xxxxx
Fargo Bank, National Association as Custodian relating to the Mortgage Loans
identified in such Custodial Agreement.
Section
1.02 Allocation
of Certain Interest Shortfalls.
For
purposes of calculating the amount of Current Interest for the Class A, Class
M,
Class B and Class C Certificates for any Distribution Date, the aggregate amount
of any Prepayment Interest Shortfalls (to the extent not covered by payments
by
the Company or the Master Servicer pursuant to Section 6.02) and any Relief
Act
Interest Shortfalls incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated first, to the Class C Interest based on,
and to the extent of, one month’s interest at the then applicable Pass-Through
Rate on the Uncertificated Notional Amount thereof, and thereafter, among the
Class A, Class M and Class B Certificates, in each case on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rates on the respective Certificate Principal Balances
of each such Certificate.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC I Regular Interests for any Distribution Date, the aggregate amount of
any
Prepayment Interest Shortfalls (to the extent not covered by payments by the
Company or the Master Servicer pursuant to Section 6.02) and any Relief Act
Interest Shortfalls incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated first, to REMIC I Regular Interests ending
with the designation “B, pro
rata,
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC I Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC I Regular Interest, and second, to REMIC
I
Regular Interests ending with the designation “A”, pro
rata,
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC I Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC I Regular Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC II Regular Interests for any Distribution Date, the aggregate amount
of
any Prepayment Interest Shortfalls (to the extent not covered by payments by
the
Company or the Master Servicer pursuant to Section 6.02) and any Relief Act
Interest Shortfalls incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated first, to Uncertificated Accrued Interest
payable to REMIC II Regular Interest AA and REMIC II Regular Interest ZZ up
to
an aggregate amount equal to the REMIC II Interest Loss Allocation Amount,
98%
and 2%, respectively, and thereafter, among REMIC II Regular Interest AA, each
REMIC II Regular Interest for which a Class A, Class M or Class B Certificate is
the Corresponding Certificate and REMIC II Regular Interest ZZ, pro
rata,
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC II Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC II Regular Interest.
[TPW:
NYLEGAL:580271.6] 17297-00471 11/10/2006 11:58 AM
ARTICLE
II
CONVEYANCE
OF TRUST FUND
REPRESENTATIONS
AND WARRANTIES
Section
2.01 Conveyance
of Trust Fund.
Pursuant
to the Mortgage Loan Purchase Agreement, the Seller sold, transferred, assigned,
set over and otherwise conveyed to the Depositor, without recourse, all the
right, title and interest of the Seller in and to the assets sold by it in
the
Trust Fund.
EMC
has
entered into this Agreement in consideration for the purchase of the Mortgage
Loans by the Depositor pursuant to the Mortgage Loan Purchase Agreement and
has
agreed to take the actions specified herein.
The
Depositor, concurrently with the execution and delivery hereof, hereby sells,
transfers, assigns, sets over and otherwise conveys to the Trustee for the
use
and benefit of the Certificateholders, without recourse, all the right, title
and interest of the Depositor in and to the Trust Fund.
In
connection with such sale, the Depositor has delivered to, and deposited with,
or caused to be delivered to and deposited with, the Trustee or the related
Custodian, as its agent, the following documents or instruments with respect
to
each Mortgage Loan so assigned: (i) the original Mortgage Note, including any
riders thereto, endorsed without recourse (A) in blank or to order of “Citibank,
N.A., as Trustee for Certificateholders of SACO I Trust 2006-10, Mortgage-Backed
Certificates, Series 2006-10,” or (B) in the case of a loan registered on the
MERS system, in blank and showing an unbroken chain of endorsements from the
original payee thereof to the Person endorsing it to the Trustee, (ii) the
original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the
presence of the MIN and language indicating that such Mortgage Loan is a MOM
Loan, which shall have been recorded (or, for Mortgage Loans other than the
EMC
Flow Loans, if the original is not available, a copy), with evidence of such
recording indicated thereon (or if clause (x) in the proviso below applies,
shall be in recordable form), (iii) unless the Mortgage Loan is either a MOM
Loan or has been assigned in the name of MERS®, the assignment (either an
original or a copy, which may be in the form of a blanket assignment if
permitted in the jurisdiction in which the Mortgaged Property is located) to
the
Trustee of the Mortgage with respect to each Mortgage Loan in the name of
“Citibank, N.A., as Trustee for Certificateholders of SACO I Trust 2006-10,
Mortgage-Backed Certificates, Series 2006-10,” which shall have been recorded
(or if clause (x) in the proviso below applies, shall be in recordable form),
(iv) an original or a copy of all intervening assignments of the Mortgage,
if
any, with evidence of recording thereon, (v) with respect to any Mortgage Loan
(other than any Piggyback Loan), the original policy of title insurance
or
mortgagee’s certificate of title insurance or commitment or binder for title
insurance or,
in
the event such original title policy has not been received from the title
insurer, such title policy will be delivered within one year of the Closing
Date
or, in the event such original title policy is unavailable, a photocopy of
such
title policy or, in lieu thereof, a current lien search on the related Mortgaged
Property; and with respect to any Piggyback Loan, the original policy of
title insurance or mortgagee’s certificate of title insurance or commitment or
binder for title insurance issued as to the related first lien Mortgage Loan
or, in lieu thereof, a lien search on the related Mortgaged Property that
was conducted in connection with the related first lien Mortgage Loan and (vi)
originals or copies of all available assumption, modification or substitution
agreements, if any; provided, however, that in lieu of the foregoing, the Seller
may deliver the following documents, under the circumstances set forth below:
(x) in lieu of the original Mortgage (other than the Mortgages related to the
EMC Flow Loans), assignment thereof to the Trustee or intervening assignments
thereof have been delivered or are being delivered to recording offices for
recording and have not been returned in time to permit their delivery as
specified above, the Depositor may deliver, or cause to be delivered, a true
copy thereof with a certification by such Seller or the title company issuing
the commitment for title insurance, on the face of such copy, substantially
as
follows: “Certified to be a true and correct copy of the original, which has
been transmitted for recording”; (y) in lieu of the original Mortgage (other
than the Mortgages related to the EMC Flow Loans), assignment to the Trustee
or
in blank or intervening assignments thereof, if the applicable jurisdiction
retains the originals of such documents (as evidenced by a certification from
the Depositor to such effect) the Depositor may deliver, or cause to be
delivered, photocopies of such documents containing an original certification
by
the judicial or other governmental authority of the jurisdiction where such
documents were recorded; and (z) in lieu of the Mortgage Notes relating to
the
Mortgage Loans identified in the list set forth in Exhibit I, the Depositor
may
deliver, or cause to be delivered, a lost note affidavit and indemnity and
a
copy of the original note, if available; and provided, further, however, that
in
the case of Mortgage Loans which have been prepaid in full after the Cut-off
Date and prior to the Closing Date, the Depositor, in lieu of delivering the
above documents, may deliver, or cause to be delivered, to the Trustee and
the
related Custodian a certification of a Servicing Officer to such effect and
in
such case shall deposit all amounts paid in respect of such Mortgage Loans,
in
the Master Servicer Collection Account or in the Distribution Account on the
Closing Date. In the case of the documents referred to in clause (x) above,
the
Depositor shall deliver, or cause to be delivered, such documents to the Trustee
or the related Custodian promptly after they are received. EMC shall cause,
at
its expense, the Mortgage and intervening assignments, if any, and to the extent
required in accordance with the foregoing, the assignment of the Mortgage to
the
Trustee to be submitted for recording promptly after the Closing Date; provided
that EMC need not cause to be recorded (a) any assignment in any jurisdiction
under the laws of which, as evidenced by an Opinion of Counsel addressed to
the
Trustee delivered by EMC to the Trustee, the Custodians and each Rating Agency,
the recordation of such assignment is not necessary to protect the Trustee’s
interest in the related Mortgage Loan or (b) if MERS is identified on the
Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee
of record solely as nominee for the related Seller and its successors and
assigns. In the event that either Seller, the Depositor or the Master Servicer
or the Securities Administrator gives written notice to the Trustee that a
court
has recharacterized the sale of the Mortgage Loans as a financing, EMC shall
submit or cause to be submitted for recording as specified above each such
previously unrecorded assignment to be submitted for recording as specified
above at the expense of the Trust. In the event a Mortgage File is released
to
the Company or the Servicer as a result of such Person having completed a
Request for Release, the related Custodian shall, if not so completed, complete
the assignment of the related Mortgage in the manner specified in clause (iii)
above.
In
connection with the assignment of any Mortgage Loan registered on the MERS®
System, EMC further agrees that it will cause, at EMC’s own expense, within 30
days after the Closing Date, the MERS® System to indicate that such Mortgage
Loans have been assigned by EMC to the Depositor and by the Depositor to the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
which are repurchased in accordance with this Agreement) in such computer files
(a) the code in the field which identifies the specific Trustee and (b) the
code
in the field “Pool Field” which identifies the series of the Certificates issued
in connection with such Mortgage Loans. EMC further agrees that it will not,
and
will not permit the Company or the Master Servicer to, and the Master Servicer
agrees that it will not, alter the codes referenced in this paragraph with
respect to any Mortgage Loan during the term of this Agreement unless and until
such Mortgage Loan is repurchased in accordance with the terms of this Agreement
or the Mortgage Loan Purchase Agreement.
All
original documents relating to the Mortgage Loans that are not delivered to
the
Trustee or the related Custodian on its behalf are and shall be held by or
on
behalf of the Seller or the Depositor, as the case may be, in trust for the
benefit of the Trustee on behalf of the Certificateholders. Any such original
document delivered to or held by the Depositor, shall be delivered promptly
to
the Custodian on the Trustee’s behalf.
Whenever
it is provided for in this Agreement that any document, evidence or information
relating to a Mortgage Loan to be included in a Mortgage File be delivered
or
supplied to the Trustee, such delivery or supply shall be made to the
appropriate Custodian pursuant to the related Custodial Agreement.
Section
2.02 Acceptance
of the Mortgage Loans.
(a) Based
on
the Initial Certification received by it from the related Custodian, the Trustee
acknowledges receipt of, subject to the further review and exceptions reported
by the related Custodian pursuant to the procedures described below, the
documents (or certified copies thereof) delivered to the Trustee or the related
Custodian on its behalf pursuant to Section 2.01 and declares that it holds
and
will continue to hold directly or through a custodian those documents and any
amendments, replacements or supplements thereto and all other assets of the
Trust Fund delivered to it in trust for the use and benefit of all present
and
future Holders of the Certificates. On the Closing Date, the Trustee or the
related Custodian on its behalf will deliver one or more Initial Certifications,
each in the form of Exhibit One to the Custodial Agreement, to the parties
indicated on such exhibit confirming whether or not it has received the Mortgage
File for each Mortgage Loan, but without review of such Mortgage File, except
to
the extent necessary to confirm whether such Mortgage File contains the original
Mortgage Note or a lost note affidavit and indemnity in lieu thereof. No later
than 90 days after the Closing Date, the Trustee or the related Custodian on
its
behalf shall, for the benefit of the Certificateholders, review each Mortgage
File delivered to it and execute and deliver to EMC and the Master Servicer
and,
if reviewed by the related Custodian, to the Trustee, one or more Interim
Certifications, each substantially in the form of Exhibit Two to the related
Custodial Agreement. In conducting such review, the Trustee or the related
Custodian on its behalf will ascertain whether all required documents have
been
executed and received and whether those documents relate, determined on the
basis of the Mortgagor name, original principal balance and loan number, to
the
Mortgage Loans identified in Exhibit B to this Agreement, as supplemented
(provided, however, that with respect to those documents described in subclauses
(iv) and (vi) of Section 2.01, such obligations shall extend only to documents
actually delivered pursuant to such subclauses). In performing any such review,
the Trustee and the related Custodian may conclusively rely on the purported
due
execution and genuineness of any such document and on the purported genuineness
of any signature thereon. If the Trustee or the related Custodian on its behalf
finds any document constituting part of the Mortgage File not to have been
executed or received, or to be unrelated to the Mortgage Loans identified in
Exhibit B or to appear to be defective on its face, the Trustee or the related
Custodian on its behalf shall include such information in the exception report
attached to the Interim Certification. EMC shall correct or cure any such defect
or, if prior to the end of the second anniversary of the Closing Date, EMC
may
substitute for the related Mortgage Loan a Replacement Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth in Section 2.03 or shall deliver to the Securities Administrator
and
the Trustee an Opinion of Counsel addressed to the Trustee to the effect that
such defect does not materially or adversely affect the interests of the
Certificateholders in such Mortgage Loan within 90 days from the date of notice
from the Trustee of the defect and if EMC fails to correct or cure the defect
or
deliver such opinion within such period, EMC will, subject to Section 2.03,
purchase such Mortgage Loan at the Purchase Price; provided, however, that
if
such defect relates solely to the inability of EMC to deliver the Mortgage,
assignment thereof to the Trustee, or intervening assignments thereof with
evidence of recording thereon because such documents have been submitted for
recording and have not been returned by the applicable jurisdiction, EMC shall
not be required to purchase such Mortgage Loan if EMC delivers such documents
promptly upon receipt, but in no event later than 360 days after the Closing
Date.
(b) No
later
than 180 days after the Closing Date, the Trustee or the related Custodian
on
its behalf will review, for the benefit of the Certificateholders, the Mortgage
Files and will execute and deliver or cause to be executed and delivered to
EMC,
and the Master Servicer and, if reviewed by the related Custodian, to the
Trustee, one or more Final Certifications, each substantially in the form of
Exhibit Three to the related Custodial Agreement. In conducting such review,
the
Trustee or the related Custodian on its behalf will ascertain whether each
document required to be recorded has been returned from the recording office
with evidence of recording thereon and the Trustee or the related Custodian
on
its behalf has received either an original or a copy thereof, as required in
Section 2.01 (provided, however, that with respect to those documents described
in subclauses (iv) and (vi) of Section 2.01, such obligations shall extend
only
to documents actually delivered pursuant to such subclauses). If the Trustee
or
the related Custodian on its behalf finds any document with respect to a
Mortgage Loan has not been received, or to be unrelated, determined on the
basis
of the Mortgagor name, original principal balance and loan number, to the
Mortgage Loans identified in Exhibit B or to appear defective on its face,
the
Trustee or the related Custodian on its behalf shall note such defect in the
exception report attached to the Final Certification and shall promptly notify
EMC. EMC shall correct or cure any such defect or, if prior to the end of the
second anniversary of the Closing Date, EMC may substitute for the related
Mortgage Loan a Replacement Mortgage Loan, which substitution shall be
accomplished in the manner and subject to the conditions set forth in Section
2.03 or shall deliver to the Trustee and the Securities Administrator an Opinion
of Counsel addressed to the Trustee and the Securities Administrator to the
effect that such defect does not materially or adversely affect the interests
of
Certificateholders in such Mortgage Loan within 90 days from the date of notice
from the Trustee of the defect and if EMC is unable within such period to
correct or cure such defect, or to substitute the related Mortgage Loan with
a
Replacement Mortgage Loan or to deliver such opinion, EMC shall, subject to
Section 2.03, purchase such Mortgage Loan at the Purchase Price; provided,
however, that if such defect relates solely to the inability of EMC to deliver
the Mortgage, assignment thereof to the Trustee or intervening assignments
thereof with evidence of recording thereon, because such documents have not
been
returned by the applicable jurisdiction, EMC shall not be required to purchase
such Mortgage Loan, if EMC delivers such documents promptly upon receipt, but
in
no event later than 360 days after the Closing Date. Notwithstanding anything
to
the contrary, the Trustee shall have no responsibility with respect to the
custody or review of Mortgage Files, all of which shall be performed by the
related Custodian pursuant to the related Custodial Agreement, and the Trustee
is hereby authorized and directed to enter into each such Custodial Agreement.
Performance by the Custodians of their obligations under the respective
Custodial Agreement shall satisfy all responsibilities for custody and review
of
Mortgage Files hereunder. The Trustee shall have no liability for the failure
of
the Custodians to perform their respective obligations under the related
Custodial Agreement.
(c) In
the
event that a Mortgage Loan is repurchased by EMC in accordance with subsections
2.02(a) or (b) above or Section 2.03, EMC shall remit the applicable Purchase
Price to the Master Servicer for deposit in the Master Servicer Collection
Account and shall provide written notice to the Securities Administrator and
the
Trustee detailing the components of the Purchase Price, signed by a Servicing
Officer. Upon deposit of the Purchase Price in the Master Servicer Collection
Account and upon receipt of a Request for Release with respect to such Mortgage
Loan, the related Custodian will release to EMC the related Mortgage File and
the Trustee shall execute and deliver all instruments of transfer or assignment,
without recourse, representation or warranty furnished to it by the related
Seller, as are necessary to vest in EMC title to and rights under the Mortgage
Loan. Such purchase shall be deemed to have occurred on the date on which the
deposit into the Master Servicer Collection Account was made. The Securities
Administrator shall promptly use its best efforts to notify each Rating Agency
of such repurchase in accordance with Section 12.05. The obligation of EMC
to
cure, repurchase or substitute for any Mortgage Loan as to which a defect in
a
constituent document exists shall be the sole remedies respecting such defect
available to the Certificateholders or to the Trustee on their
behalf.
(d) EMC
shall
deliver to the Trustee or the related Custodian on its behalf, and Trustee
agrees to accept the Mortgage Note and other documents constituting the Mortgage
File with respect to any Replacement Mortgage Loan, which the Trustee or the
related Custodian will review as provided in subsections 2.02(a) and 2.02(b),
provided, that the Closing Date referred to therein shall instead be the date
of
delivery of the Mortgage File with respect to each Replacement Mortgage
Loan.
Section
2.03 Representations,
Warranties and Covenants of the Company, the Master Servicer, and EMC as
Seller.
(a) The
Company hereby represents and warrants to the Master Servicer, the Depositor,
the Securities Administrator and the Trustee as follows, as of the Closing
Date:
(i) It
is
duly organized and is validly existing and in good standing under the laws
of
the State of Delaware and is duly authorized and qualified to transact any
and
all business contemplated by this Agreement to be conducted by it in any state
in which a Mortgaged Property related to an EMC Mortgage Loan is located or
is
otherwise not required under applicable law to effect such qualification and,
in
any event, is in compliance with the doing business laws of any such state,
to
the extent necessary to ensure its ability to enforce each EMC Mortgage Loan,
to
service the EMC Mortgage Loans in accordance with the terms of the Mortgage
Loan
Purchase Agreement and this Agreement and to perform any of its other
obligations under this Agreement in accordance with the terms hereof or
thereof.
(ii) It
has
the full corporate power and authority to service each Mortgage Loan, and to
execute, deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary
corporate action on its part the execution, delivery and performance of this
Agreement, assuming the due authorization, execution and delivery hereof by
the
other parties hereto or thereto, as applicable, constitutes its legal, valid
and
binding obligation, enforceable against it in accordance with its terms, except
that (a) the enforceability hereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors’ rights
generally and (b) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(iii) The
execution and delivery of this Agreement, the servicing of the Mortgage Loans
by
it under this Agreement, the consummation of any other of the transactions
contemplated by this Agreement, and the fulfillment of or compliance with the
terms hereof and thereof are in its ordinary course of business and will not
(A)
result in a breach of any term or provision of its charter or by-laws or (B)
conflict with, result in a breach, violation or acceleration of, or result
in a
default under, the terms of any other material agreement or instrument to which
it is a party or by which it may be bound, or (C) constitute a violation of
any
statute, order or regulation applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it; and
it
is not in breach or violation of any material indenture or other material
agreement or instrument, or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair its ability
to perform or meet any of its obligations under this Agreement.
(iv) It
is an
approved servicer of conventional mortgage loans for Xxxxxx Xxx and Xxxxxxx
Mac
and is a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to sections 203 and 211 of the National Housing Act.
(v) No
litigation is pending or, to the best of its knowledge, threatened, against
it
that would materially and adversely affect (a) the execution, delivery or
enforceability of this Agreement (b) its ability to service the EMC Mortgage
Loans, (c) to perform any of its other obligations under this Agreement in
accordance with the terms hereof, (d) its business operations, financial
conditions, or properties or assets owned by it, or (e) its ability to carry
on
its business as now conducted.
(vi) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for its execution, delivery and performance of, or compliance
with, this Agreement or the consummation of the transactions contemplated hereby
or thereby, or if any such consent, approval, authorization or order is
required, it has obtained the same.
(vii) The
servicing practices used by the Company in respect of each Mortgage Loan have
been, and will continue to be, compliant in all material respects with
applicable laws and regulations.
(viii) As
of the Closing Date and except as has been otherwise disclosed to the Master
Servicer and the Depositor, or disclosed in any public filing: (1) no default
or
servicing related performance trigger has occurred as to any other Pass-Through
Transfer due to any act or failure to act of the Company; (2) no material
noncompliance with applicable servicing criteria as to any other Pass-Through
Transfer has occurred, been disclosed or reported by the Company; (3) the
Company has not been terminated as servicer in a residential mortgage loan
Pass-Through Transfer, either due to a servicing default or to application
of a
servicing performance test or trigger; (4) no material changes to the Company’s
servicing policies and procedures for similar loans have occurred in the
preceding three years outside of the normal changes warranted by regulatory
and
product type changes in the portfolio; (5) there are no aspects of the Company’s
financial condition that could have a material adverse impact on the performance
by the Company of its obligations hereunder; (6) there are no legal proceedings
pending, or known to be contemplated by governmental authorities, against the
Company that could be material to investors in the securities issued in such
Pass-Through Transfer; and (7) there are no affiliations, relationships or
transactions relating to the Company of a type that are described under Item
1119 of Regulation AB.
(ix) If
so requested by the Depositor or the Master Servicer on any date, the Company
shall, within five Business Days following such request, confirm in writing
the
accuracy of the representations and warranties set forth in clause (a)(viii)
of
this Section or, if any such representation and warranty is not accurate as
of
the date of such request, provide reasonably adequate disclosure of the
pertinent facts, in writing, to the requesting party.
(x) As
a condition to the succession to the Company or any subservicer as servicer
or
subservicer under this Agreement by any Person (i) into which the Company or
such subservicer may be merged or consolidated, or (ii) which may be appointed
as a successor to the Company or any subservicer, the Company shall provide
to
the Master Servicer and the Depositor, at least 15 calendar days prior to the
effective date of such succession or appointment, (x) written notice to the
Master Servicer and the Depositor of such succession or appointment and (y)
in
writing and in form and substance reasonably satisfactory to the Master Servicer
and the Depositor, all information reasonably requested by the Master Servicer
or the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to any class of asset-backed
securities.
(b) LaSalle
Bank National Association, in its capacity as Master Servicer and Securities
Administrator hereby represents and warrants to the Seller, the Depositor and
the Trustee as follows, as of the Closing Date:
(i) It
is a
national banking association duly formed, validly existing and in good standing
under the laws of the United States of America and is duly authorized and
qualified to transact any and all business contemplated by this Agreement to
be
conducted by the Master Servicer and the Securities Administrator and, is in
compliance with the doing business laws of any state, to the extent necessary
to
ensure its ability to perform any of its other obligations under this Agreement
in accordance with the terms hereof;
(ii) It
has
the full corporate power and authority to execute, deliver and perform, and
to
enter into and consummate the transactions contemplated by this Agreement and
has duly authorized by all necessary corporate action on its part the execution,
delivery and performance of this Agreement; and this Agreement, assuming the
due
authorization, execution and delivery hereof by the other parties hereto,
constitutes its legal, valid and binding obligation, enforceable against it
in
accordance with its terms, except that (a) the enforceability hereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors’ rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(iii) The
execution and delivery of this Agreement by it, the consummation of any other
of
the transactions contemplated by this Agreement, and the fulfillment of or
compliance with the terms hereof are in its ordinary course of business and
will
not (A) result in a material breach of any term or provision of its charter
or
by-laws or (B) materially conflict with, result in a material breach, violation
or acceleration of, or result in a material default under, the terms of any
other material agreement or instrument to which it is a party or by which it
may
be bound, or (C) constitute a material violation of any statute, order or
regulation applicable to it of any court, regulatory body, administrative agency
or governmental body having jurisdiction over it; and it is not in breach or
violation of any material indenture or other material agreement or instrument,
or in violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction over it
which breach or violation may materially impair its ability to perform or meet
any of its obligations under this Agreement.
(iv) No
litigation is pending or, to the best of its knowledge, threatened, against
it
that would materially and adversely affect the execution, delivery or
enforceability of this Agreement or its ability to perform any of its other
obligations under this Agreement in accordance with the terms
hereof.
(v) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for its execution, delivery and performance of, or compliance
with, this Agreement or the consummation of the transactions contemplated
hereby, or if any such consent, approval, authorization or order is required,
it
has obtained the same.
(c) EMC
(in
its capacity as Seller) hereby represents and warrants to the Depositor and
the
Trustee as follows, as of the Closing Date:
(i) EMC
is
duly organized as a Delaware corporation and is validly existing and in good
standing under the laws of the State of Delaware and is duly authorized and
qualified to transact any and all business contemplated by this Agreement to
be
conducted by EMC in any state in which a Mortgaged Property is located or is
otherwise not required under applicable law to effect such qualification and,
in
any event, is in compliance with the doing business laws of any such state,
to
the extent necessary to ensure its ability to enforce each Mortgage Loan, to
sell the Mortgage Loans in accordance with the terms of the Mortgage Loan
Purchase Agreement and to perform any of its other obligations under this
Agreement in accordance with the terms hereof.
(ii) EMC
has
the full corporate power and authority to sell each Mortgage Loan, and to
execute, deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary
corporate action on the part of EMC the execution, delivery and performance
of
this Agreement, assuming the due authorization, execution and delivery hereof
by
the other parties hereto or thereto, as applicable, constitutes a legal, valid
and binding obligation of EMC, enforceable against EMC in accordance with its
terms, except that (a) the enforceability hereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors’ rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(iii) The
execution and delivery of this Agreement by EMC, the sale of the Mortgage Loans
by EMC under the Mortgage Loan Purchase Agreement, the consummation of any
other
of the transactions contemplated by this Agreement, and the fulfillment of
or
compliance with the terms hereof and thereof are in the ordinary course of
business of EMC and will not (A) result in a material breach of any term or
provision of the charter or by-laws of EMC or (B) conflict with, result in
a
breach, violation or acceleration of, or result in a default under, the terms
of
any other material agreement or instrument to which EMC is a party or by which
it may be bound, or (C) constitute a violation of any statute, order or
regulation applicable to EMC of any court, regulatory body, administrative
agency or governmental body having jurisdiction over EMC; and EMC is not in
breach or violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair EMC’s ability to perform
or meet any of its obligations under this Agreement.
(iv) EMC
is an
approved Seller of conventional mortgage loans for Xxxxxx Xxx and Xxxxxxx Mac
and is a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to sections 203 and 211 of the National Housing Act.
(v) No
litigation is pending or, to the best of EMC’s knowledge, threatened, against
EMC that would materially and adversely affect the execution, delivery or
enforceability of this Agreement or the ability of EMC to sell the Mortgage
Loans or to perform any of its other obligations under this Agreement in
accordance with the terms hereof or thereof.
(vi) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by EMC of, or
compliance by EMC with, this Agreement or the consummation of the transactions
contemplated hereby, or if any such consent, approval, authorization or order
is
required, EMC has obtained the same.
(vii) With
respect to each Mortgage Loan as of the Closing Date (or such other date as
may
be specified in Section 7 of the Mortgage Loan Purchase Agreement), EMC hereby
remakes and restates each of the representations and warranties set forth in
Section 7 of the Mortgage Loan Purchase Agreement to the Depositor and the
Trustee to the same extent as if fully set forth herein.
(d) Upon
discovery by any of the parties hereto of a breach of a representation or
warranty set forth in the Mortgage Loan Purchase Agreement with respect to
the
Mortgage Loans that materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach
shall
give prompt written notice thereof to the other parties. EMC, in its capacity
as
Seller, hereby covenants with respect to the representations and warranties
set
forth in the Mortgage Loan Purchase Agreement with respect to the Mortgage
Loans, that within 90 days of the discovery of a breach of any representation
or
warranty set forth therein that materially and adversely affects the interests
of the Certificateholders in any Mortgage Loan, it shall cure such breach in
all
material respects and, if such breach is not so cured, (i) if such 90 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 Replacement Mortgage Loan, in the manner and subject to the
conditions set forth in this Section; or (ii) repurchase the affected Mortgage
Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner
set
forth below; provided that any such substitution pursuant to (i) above or
repurchase pursuant to (ii) above shall not be effected prior to the delivery
to
the Trustee and the Securities Administrator of an Opinion of Counsel if
required by Section 2.05 hereof and any such substitution pursuant to (i) above
shall not be effected prior to the additional delivery to the applicable
Custodian of a Request for Release. The Trustee shall give prompt written notice
to the parties hereto of EMC’s failure to cure such breach as set forth in the
preceding sentence. EMC shall promptly reimburse the Master Servicer and the
Trustee for any expenses reasonably incurred by the Master Servicer or the
Trustee in respect of enforcing the remedies for such breach. To enable the
Master Servicer to amend the Mortgage Loan Schedule, EMC shall, unless it cures
such breach in a timely fashion pursuant to this Section 2.03, promptly notify
the Master Servicer whether it intends either to repurchase, or to substitute
for, the Mortgage Loan affected by such breach. With respect to the
representations and warranties with respect to the Mortgage Loans that are
made
to the best of EMC’s knowledge, if it is discovered by any of the Depositor, the
Master Servicer, EMC, the Securities Administrator or the Trustee that the
substance of such representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related Mortgage Loan,
notwithstanding EMC’s lack of knowledge with respect to the substance of such
representation or warranty, EMC (in its capacity as Seller) shall nevertheless
be required to cure, substitute for or repurchase the affected Mortgage Loan
in
accordance with the foregoing.
With
respect to any Replacement Mortgage Loan or Loans, EMC (in its capacity as
Seller) shall deliver to the Trustee or the related Custodian on its behalf
for
the benefit of the Certificateholders such documents and agreements as are
required by Section 2.01. No substitution will be made in any calendar month
after the Determination Date for such month. Notwithstanding the foregoing,
such
substitution must be done within two years of the Closing Date. Scheduled
Payments due with respect to Replacement Mortgage Loans in the Due Period
related to the Distribution Date on which such proceeds are to be distributed
shall not be part of the Trust Fund and will be retained by EMC (in its capacity
as Seller). For the month of substitution, distributions to Certificateholders
will include the Scheduled Payment due on any Deleted Mortgage Loan for the
related Due Period and thereafter EMC (in its capacity as Seller) shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit
of the Certificateholders to reflect the removal of each such Deleted Mortgage
Loan and the substitution of the Replacement Mortgage Loan or Loans and the
Master Servicer shall deliver the amended Mortgage Loan Schedule to the
Securities Administrator, the Trustee and the related Custodian. Upon such
substitution, the Replacement Mortgage Loan or Loans shall be subject to the
terms of this Agreement in all respects, and EMC shall be deemed to have made
with respect to such Replacement Mortgage Loan or Loans, as of the date of
substitution, the representations and warranties set forth in Section 7 or
Section 8 of the Mortgage Loan Purchase Agreement with respect to such Mortgage
Loan. Upon any such substitution and the deposit into the Master Servicer
Collection Account of the amount required to be deposited therein in connection
with such substitution as described in the following paragraph and receipt
by
the related Custodian of a Request for Release for such Mortgage Loan, the
related Custodian shall release to EMC the Mortgage File relating to such
Deleted Mortgage Loan and held for the benefit of the Certificateholders and
the
Trustee shall execute and deliver at EMC’s direction such instruments of
transfer or assignment as have been prepared by EMC, in each case without
recourse, representation or warranty as shall be necessary to vest in EMC,
or
its respective designee, title to the Trustee’s interest in any Deleted Mortgage
Loan substituted for pursuant to this Section 2.03.
For
any
month in which EMC substitutes one or more Replacement Mortgage Loans for a
Deleted Mortgage Loan, the Master Servicer will determine the amount (if any)
by
which the aggregate principal balance of all the Replacement Mortgage Loans
as
of the date of substitution is less than the Stated Principal Balance (after
application of the principal portion of the Scheduled Payment due in the month
of substitution) of such Deleted Mortgage Loan. An amount equal to the aggregate
of such deficiencies, described in the preceding sentence for any Distribution
Date (such amount, the “Substitution Adjustment Amount”) shall be deposited into
the Master Servicer Collection Account, by EMC upon its delivering such
Replacement Mortgage Loan on the Determination Date for the Distribution Date
relating to the Prepayment Period during which the related Mortgage Loan became
required to be purchased or replaced hereunder.
In
the
event that EMC (in its capacity as Seller) shall have repurchased a Mortgage
Loan, the Purchase Price therefor shall be deposited into the Master Servicer
Collection Account maintained by the Master Servicer, on the Determination
Date
for the Distribution Date in the month following the month during which EMC
became obligated to repurchase or replace such Mortgage Loan and upon such
deposit of the Purchase Price, the delivery of an Opinion of Counsel if required
by Section 2.05 and the receipt of a Request for Release, the related Custodian
shall release the related Mortgage File held for the benefit of the
Certificateholders to EMC, and the Trustee shall execute and deliver at such
Person’s direction the related instruments of transfer or assignment prepared by
EMC, in each case without recourse, representation or warranty, as shall be
necessary to transfer title from the Trustee for the benefit of the
Certificateholders and transfer the Trustee’s interest to EMC to any Mortgage
Loan purchased pursuant to this Section 2.03. It is understood and agreed that
the obligation under this Agreement of EMC to cure, repurchase or replace any
Mortgage Loan as to which a breach has occurred and is continuing shall
constitute the sole remedies against EMC (in its capacity as Seller) respecting
such breach available to the Certificateholders, the Depositor or the
Trustee.
(e) The
representations and warranties set forth in this Section 2.03 hereof shall
survive delivery of the respective Mortgage Loans and Mortgage Files to the
Trustee or the related Custodian for the benefit of the
Certificateholders.
Section
2.04 Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to the Master Servicer, the Securities
Administrator and the Trustee as follows, as of the date hereof and as of the
Closing Date:
(i) The
Depositor is duly organized and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware and has full
power and authority necessary to own or hold its properties and to conduct
its
business as now conducted by it and to enter into and perform its obligations
under this Agreement.
(ii) The
Depositor has the full power and authority to execute, deliver and perform,
and
to enter into and consummate the transactions contemplated by, this Agreement
and has duly authorized, by all necessary corporate action on its part, the
execution, delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery hereof by the other
parties hereto, constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its terms,
subject, as to enforceability, to (i) bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors’ rights generally and (ii)
general principles of equity, regardless of whether enforcement is sought in
a
proceeding in equity or at law.
(iii) The
execution and delivery of this Agreement by the Depositor, the consummation
of
the transactions contemplated by this Agreement, and the fulfillment of or
compliance with the terms hereof and thereof are in the ordinary course of
business of the Depositor and will not (A) result in a material breach of any
term or provision of the certificate of formation or limited liability company
agreement of the Depositor or (B) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material default under,
the
terms of any other material agreement or instrument to which the Depositor
is a
party or by which it may be bound or (C) constitute a material violation of
any
statute, order or regulation applicable to the Depositor of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Depositor; and the Depositor is not in breach or violation of any
material indenture or other material agreement or instrument, or in violation
of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which breach or
violation may materially impair the Depositor’s ability to perform or meet any
of its obligations under this Agreement.
(iv) No
litigation is pending, or, to the best of the Depositor’s knowledge, threatened,
against the Depositor that would materially and adversely affect the execution,
delivery or enforceability of this Agreement or the ability of the Depositor
to
perform its obligations under this Agreement in accordance with the terms hereof
or thereof.
(v) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Depositor
of, or compliance by the Depositor with this Agreement or the consummation
of
the transactions contemplated hereby or thereby, or if any such consent,
approval, authorization or order is required, the Depositor has obtained the
same.
(vi) The
Depositor 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 Depositor was required to file such reports) and it has been subject to
such
filing requirement for the past 90 days.
The
Depositor hereby represents and warrants to the Trustee as of the Closing Date,
following the transfer of the Mortgage Loans to it by the Seller, the Depositor
had good title to the Mortgage Loans and the related Mortgage Notes were subject
to no offsets, claims, defenses or counterclaims.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04 shall survive delivery of the Mortgage Files to the Trustee or
the
related Custodian for the benefit of the Certificateholders. Upon discovery
by
the Depositor or the Trustee of a breach of such representations and warranties,
the party discovering such breach shall give prompt written notice to the others
and to each Rating Agency.
Section
2.05 Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
(a) Notwithstanding
any contrary provision of this Agreement, with respect to any Mortgage Loan
that
is not in default or as to which default is not reasonably foreseeable, no
repurchase or substitution pursuant to Sections 2.02 or 2.03 shall be made
unless EMC delivers to the Trustee and the Securities Administrator an Opinion
of Counsel, addressed to the Trustee and the Securities Administrator, to the
effect that such repurchase or substitution would not (i) result in the
imposition of the tax on “prohibited transactions” of REMIC I, REMIC II, REMIC
III, REMIC IV or REMIC V or contributions after the Closing Date, as defined
in
Sections 860F(a)(2) and 860G(d) of the Code, respectively, or (ii) cause any
of
REMIC I, REMIC II, REMIC III, REMIC IV or REMIC V to fail to qualify as a REMIC
at any time that any Certificates are outstanding. Any Mortgage Loan as to
which
repurchase or substitution was delayed pursuant to this paragraph shall be
repurchased or the substitution therefor shall occur (subject to compliance
with
Sections 2.02 or 2.03) upon the earlier of (a) the occurrence of a default
or a
default becoming reasonably foreseeable with respect to such Mortgage Loan
and
(b) receipt by the Trustee of an Opinion of Counsel addressed to the Trustee
and
the Securities Administrator to the effect that such repurchase or substitution,
as applicable, will not result in the events described in clause (i) or clause
(ii) of the preceding sentence.
(b) Upon
discovery by the Depositor, EMC or the Master Servicer that any Mortgage Loan
does not constitute a “qualified mortgage” within the meaning of Section
860G(a)(3) of the Code, the party discovering such fact shall promptly (and
in
any event within 5 Business Days of discovery) give written notice thereof
to
the other parties and the Trustee and the Securities Administrator. In
connection therewith, EMC shall either (i) substitute, if the conditions in
Section 2.03 with respect to substitutions are satisfied, a Replacement Mortgage
Loan for the affected Mortgage Loan, or (ii) repurchase the affected Mortgage
Loan within 90 days of such discovery in the same manner as it would a Mortgage
Loan for a breach of representation or warranty in accordance with Section
2.03.
The Trustee shall reconvey to EMC the Mortgage Loan to be released pursuant
hereto (and the related Custodian shall deliver the related Mortgage File)
in
the same manner, and on the same terms and conditions, as it would a Mortgage
Loan repurchased for breach of a representation or warranty in accordance with
Section 2.03.
Section
2.06 Countersignature
and Delivery of Certificates.
(a) The
Trustee acknowledges the sale, transfer and assignment to it of the Trust Fund
and, concurrently with such transfer and assignment, and the Securities
Administrator has executed, countersigned and delivered, to or upon the order
of
the Depositor, the Certificates in authorized denominations evidencing 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 and to perform the duties set forth in this
Agreement in accordance with its terms.
(b) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
I Regular Interests and the other assets of REMIC II for the benefit of the
holders of the REMIC II Regular Interests and the Class R-2 Certificates. The
Trustee acknowledges receipt of the REMIC I Regular Interests (which are
uncertificated) and the other assets of REMIC II and declares that it holds
and
will hold the same in trust for the exclusive use and benefit of the holders
of
the REMIC II Regular Interests and the Class R-2 Certificates.
(c) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
II Regular Interests and the other assets of REMIC III for the benefit of the
holders of the Regular Certificates (other than the Class C Certificates),
the
Class C Interest, the Class IO Interest and the Class R-3 Certificates. The
Trustee acknowledges receipt of the REMIC II Regular Interests (which are
uncertificated) and the other assets of REMIC III and declares that it holds
and
will hold the same in trust for the exclusive use and benefit of the holders
of
the Regular Certificates (other than the Class C Certificates), the Class C
Interest, the Class IO Interest and the Class R-3 Certificates.
(d) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
C Interest for the benefit of the Holders of the Class C Certificates and Class
RX Certificates (in respect of the Class R-4 Interest). The Trustee acknowledges
receipt of the Class C Interest (which is uncertificated) and declares that
it
holds and will hold the same in trust for the exclusive use and benefit of
the
Holders of the Class C Certificates and Class RX Certificates (in respect of
the
Class R-4 Interest).
(e) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
IO Interest for the benefit of the holders of the REMIC V Regular Interest
IO
and Class RX Certificates (in respect of the Class R-5 Interest). The Trustee
acknowledges receipt of the Class IO Interest (which is uncertificated) and
declares that it holds and will hold the same in trust for the exclusive use
and
benefit of the holders of the REMIC V Regular Interest IO and Class RX
Certificates (in respect of the Class R-5 Interest).
Section
2.07 Purposes
and Powers of the Trust.
The
purpose of the common law trust, created hereunder (the “Trust”), is to engage
in the following activities:
(a) acquire
and hold the Mortgage Loans and the other assets of the Trust Fund and the
proceeds therefrom for the benefit of the Certificateholders;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage Loans and
the other assets of the Trust Fund;
(c) to
make
distributions on the Certificates;
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
The
Trust
is hereby authorized to engage in the foregoing activities. The Trust shall
not
engage in any activity other than in connection with the foregoing or other
than
as required or authorized by the terms of this Agreement while any Certificate
is outstanding.
ARTICLE
III
ADMINISTRATION
AND SERVICING OF EMC MORTGAGE LOANS BY THE COMPANY
Section
3.01 The
Company.
The
Company shall service and administer the EMC Mortgage Loans in accordance with
this Agreement and with customary and usual standards of practice of prudent
mortgage loan servicers in the respective states in which the related Mortgaged
Properties are located. In connection with such servicing and administration,
the Company shall have full power and authority, acting alone and/or through
subservicers as provided in Section 3.03, to do or cause to be done any and
all
things that it may deem necessary or desirable and consistent with the terms
of
this Agreement and customary servicing practices in connection with such
servicing and administration, including but not limited to, the power and
authority, subject to the terms hereof (i) to execute and deliver, on behalf
of
the Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any related Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages (but only
in the manner provided herein), (iii) to collect any Insurance Proceeds and
other Liquidation Proceeds or Subsequent Recoveries, and (iv) subject to Section
3.12, to effectuate foreclosure or other conversion of the ownership of the
Mortgaged Property securing any EMC Mortgage Loan; provided that the Company
shall take no action that is inconsistent with or prejudices the interests
of
the Trust Fund, or the Certificateholders or this Agreement in any EMC Mortgage
Loan or the rights and interests of the Depositor, the Master Servicer or the
Trustee under this Agreement.
Without
limiting the generality of the foregoing, the Company, in its own name or in
the
name of the Trust, the Depositor or the Trustee, is hereby authorized and
empowered by the Trust, the Depositor and the Trustee, when the Company believes
it appropriate in its reasonable judgment, to execute and deliver, on behalf
of
the Trustee, the Depositor, the Certificateholders or any of them, 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 EMC Mortgage
Loans, and with respect to the related Mortgaged Properties held for the benefit
of the Certificateholders. The Company shall prepare and deliver to the
Depositor and/or the Trustee such documents requiring execution and delivery
by
any or all of them as are necessary or appropriate to enable the Company to
service and administer the EMC Mortgage Loans. Upon receipt of such documents,
the Depositor and/or the Trustee shall execute such documents and deliver them
to the Company.
In
accordance with the standards of the first paragraph of this Section 3.01,
the
Company shall advance or cause to be advanced funds as necessary for the purpose
of effecting the payment of taxes and assessments on the Mortgaged Properties
relating to the EMC Mortgage Loans, which advances shall be reimbursable in
the
first instance from related collections from the Mortgagors pursuant to Section
5.04, and further as provided in Section 5.02. All costs incurred by the
Company, if any, in effecting the timely payments of taxes and assessments
on
the Mortgaged Properties relating to the EMC Mortgage Loans and related
insurance premiums shall not, for the purpose of calculating monthly
distributions to the Certificateholders, be added to the Stated Principal
Balance under the related EMC Mortgage Loans, notwithstanding that the terms
of
such Mortgage Loans so permit.
If
the
Mortgage relating to a Mortgage Loan had a lien senior to the Mortgage Loan
on
the related Mortgaged Property as of the Cut-off Date, then the Company may
consent to the refinancing of the prior senior lien, provided that the following
requirements are met:
(i) the
resulting Combined Loan-to-Value Ratio of such Mortgage Loan is no higher than
the Combined Loan-to-Value Ratio prior to such refinancing; and
(ii) the
interest rate, or, in the case of an adjustable rate existing senior lien,
the
maximum interest rate, for the loan evidencing the refinanced senior lien is
no
more than 2.0% higher than the interest rate or the maximum interest rate,
as
the case may be, on the loan evidencing the existing senior lien immediately
prior to the date of such refinancing; and
(iii) the
loan
evidencing the refinanced senior lien is not subject to negative
amortization.
The
Trustee shall furnish the Company and the Servicer with any powers of attorney
and other documents in form as provided to it necessary or appropriate to enable
the Company and the Servicer to service and administer the related Mortgage
Loans and REO Property, to execute and deliver instruments of satisfaction
or
cancellation, or of partial or full release or discharge, and to foreclose
upon
or otherwise liquidate Mortgaged Property, and to appeal, prosecute or defend
in
any court action relating to the Mortgage Loans or the Mortgaged Property,
in
accordance with the GMACM Servicing Agreement and this Agreement.
Section
3.02 Due-on-Sale
Clauses; Assumption Agreements.
(a) Except
as
otherwise provided in this Section 3.02, when any property subject to a Mortgage
has been or is about to be conveyed by the Mortgagor, the Company shall to
the
extent that it has knowledge of such conveyance, enforce any due-on-sale clause
contained in any Mortgage Note or Mortgage, to the extent permitted under
applicable law and governmental regulations, but only to the extent that such
enforcement will not adversely affect or jeopardize coverage under any Required
Insurance Policy. Notwithstanding the foregoing, the Company is not required
to
exercise such rights with respect to an EMC Mortgage Loan if the Person to
whom
the related Mortgaged Property has been conveyed or is proposed to be conveyed
satisfies the terms and conditions contained in the Mortgage Note and Mortgage
related thereto and the consent of the mortgagee under such Mortgage Note or
Mortgage is not otherwise so required under such Mortgage Note or Mortgage
as a
condition to such transfer. In the event that the Company is prohibited by
law
from enforcing any such due-on-sale clause, or if coverage under any Required
Insurance Policy would be adversely affected, or if nonenforcement is otherwise
permitted hereunder, the Company is authorized, subject to Section 3.02(b),
to
take or enter into an assumption and modification agreement from or with the
person to whom such property has been or is about to be conveyed, pursuant
to
which such person becomes liable under the Mortgage Note and, unless prohibited
by applicable state law, the Mortgagor remains liable thereon, provided that
the
Mortgage Loan shall continue to be covered (if so covered before the Company
enters such agreement) by the applicable Required Insurance Policies. The
Company, subject to Section 3.02(b), is also authorized with the prior approval
of the insurers under any Required Insurance Policies 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
Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, the Company shall not be deemed to be in default under this Section
3.02(a) by reason of any transfer or assumption that the Company reasonably
believes it is restricted by law from preventing.
(b) Subject
to the Company’s duty to enforce any due-on-sale clause to the extent set forth
in Section 3.02(a), in any case in which a Mortgaged Property has been conveyed
to a Person by a Mortgagor, and such Person is to enter into an assumption
agreement or modification agreement or supplement to the Mortgage Note or
Mortgage that requires the signature of the Trustee, or if an instrument of
release signed by the Trustee is required releasing the Mortgagor from liability
on the related EMC Mortgage Loan, the Company shall prepare and deliver or
cause
to be prepared and delivered to the Trustee for signature and shall direct,
in
writing, the Trustee to execute the assumption agreement with the Person to
whom
the Mortgaged Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or Mortgage
or otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to such Person. In connection with any such
assumption, no material term of the Mortgage Note (including, but not limited
to, the Mortgage Rate, the amount of the Scheduled Payment and any other term
affecting the amount or timing of payment on the EMC Mortgage Loan) may be
changed. In addition, the substitute Mortgagor and the Mortgaged Property must
be acceptable to the Company in accordance with its servicing standards as
then
in effect. The Company shall notify the Trustee that any such substitution
or
assumption agreement has been completed by forwarding to the Trustee the
original (and to the Master Servicer a copy) of such substitution or assumption
agreement, which in the case of the original 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. Any fee collected by the Company for entering into an assumption
or substitution of liability agreement will be retained by the Company as
additional servicing compensation.
Section
3.03 Subservicers.
The
Company shall perform all of its servicing responsibilities hereunder or may
cause a subservicer to perform any such servicing responsibilities on its
behalf, but the use by the Company of a subservicer shall not release the
Company from any of its obligations hereunder and the Company shall remain
responsible hereunder for all acts and omissions of each subservicer as fully
as
if such acts and omissions were those of the Company. The Company shall pay
all
fees of each subservicer from its own funds, and a subservicer’s fee shall not
exceed the Servicing Fee payable to the Company hereunder.
At
the
cost and expense of the Company, without any right of reimbursement from its
Protected Account, the Company shall be entitled to terminate the rights and
responsibilities of a subservicer and arrange for any servicing responsibilities
to be performed by a successor subservicer; provided, however, that nothing
contained herein shall be deemed to prevent or prohibit the Company, at the
Company’s option, from electing to service the related Mortgage Loans itself. In
the event that the Company’s responsibilities and duties under this Agreement
are terminated pursuant to Section 9.01, the Company shall at its own cost
and
expense terminate the rights and responsibilities of each subservicer effective
as of the date of termination of the Company. The Company shall pay all fees,
expenses or penalties necessary in order to terminate the rights and
responsibilities of each subservicer from the Company’s own funds without
reimbursement from the Trust Fund.
Notwithstanding
the foregoing, the Company shall not be relieved of its obligations hereunder
and shall be obligated to the same extent and under the same terms and
conditions as if it alone were servicing and administering the EMC Mortgage
Loans. The Company shall be entitled to enter into an agreement with a
subservicer for indemnification of the Company by the subservicer and nothing
contained in this Agreement shall be deemed to limit or modify such
indemnification.
Any
subservicing agreement and any other transactions or services relating to the
EMC Mortgage Loans involving a subservicer shall be deemed to be between such
subservicer and the Company alone, and neither the Master Servicer nor the
Trustee shall have any obligations, duties or liabilities with respect to such
subservicer including any obligation, duty or liability of either the Master
Servicer or the Trustee to pay such subservicer’s fees and expenses. For
purposes of remittances to the Securities Administrator pursuant to this
Agreement, the Company shall be deemed to have received a payment on an EMC
Mortgage Loan when a subservicer has received such payment.
Section
3.04 Documents,
Records and Funds in Possession of the Company to Be Held for
Trustee.
Notwithstanding
any other provisions of this Agreement, the Company shall transmit to the
Trustee or the related Custodian on behalf of the Trustee as required by this
Agreement all documents and instruments in respect of an EMC Mortgage Loan
coming into the possession of the Company from time to time and shall account
fully to the Master Servicer for any funds received by the Company or that
otherwise are collected by the Company as Liquidation Proceeds, Insurance
Proceeds or Subsequent Recoveries in respect of any such Mortgage Loan. All
Mortgage Files and funds collected or held by, or under the control of, the
Company in respect of any EMC Mortgage Loans, whether from the collection of
principal and interest payments or from Liquidation Proceeds, Insurance Proceeds
or Subsequent Recoveries, including but not limited to, any funds on deposit
in
the Protected Account maintained by the Company, shall be held by the Company
for and on behalf of the Trustee and shall be and remain the sole and exclusive
property of the Trustee, subject to the applicable provisions of this Agreement.
The Company also agrees that it shall not create, incur or subject any Mortgage
File or any funds that are deposited in the Protected Account maintained by
the
Company or in any Escrow Account, or any funds that otherwise are or may become
due or payable to the Trustee for the benefit of the Certificateholders, to
any
claim, lien, security interest, judgment, levy, writ of attachment or other
encumbrance, or assert by legal action or otherwise any claim or right of set
off against any Mortgage File or any funds collected on, or in connection with,
an EMC Mortgage Loan, except, however, that the Company shall be entitled to
set
off against and deduct from any such funds any amounts that are properly due
and
payable to the Company under this Agreement.
All
funds
collected or held by, or under the control of, the Company, in respect of any
Mortgage Loans, whether from the collection of principal and interest payments
or from Liquidation Proceeds, Subsequent Recoveries or Insurance Proceeds,
shall
be held by the Company for and on behalf of the Trustee and the
Certificateholders and shall be and remain the sole and exclusive property
of
the Trustee; provided, however, that the Company shall be entitled to setoff
against, and deduct from, any such funds any amounts that are properly due
and
payable to the Company under this Agreement.
Section
3.05 Optional
Purchase of Certain Mortgage Loans.
With
respect to any Mortgage Loan which as of the first day of a Fiscal Quarter
is
delinquent in payment by 90 days or more or is an REO Property, EMC shall have
the right to purchase any such Mortgage Loan or REO Property from the Trust
at a
price equal to the Purchase Price; provided however (i) that such Mortgage
Loan
is still 90 days or more delinquent or is an REO Property as of the date of
such
purchase and (ii) this purchase option, if not theretofore exercised, shall
terminate on the date prior to the last day of the related Fiscal Quarter.
This
purchase option, if not exercised, shall not be thereafter reinstated unless
the
delinquency is cured and the Mortgage Loan thereafter again becomes 90 days
or
more delinquent or becomes an REO Property, in which case the option shall
again
become exercisable as of the first day of the related Fiscal Quarter. This
right
may be assigned by EMC to a third party, including a holder of a Class of
Certificates.
If
at any time EMC remits to the Master Servicer a payment for deposit in the
Master
Servicer Collection
Account covering the amount of the Purchase Price for such a Mortgage Loan,
and
EMC provides to the Master Servicer and Trustee an Officer’s Certificate stating
that the amount of such payment has been deposited in the Master
Servicer Collection
Account, then the Trustee shall execute the assignment of such Mortgage Loan
prepared and delivered to the Trustee, at the request of EMC, without recourse,
representation or warranty, to EMC which shall succeed to all the Trustee’s
right, title and interest in and to such Mortgage Loan, and all security and
documents relative thereto. Such assignment shall be an assignment outright
and
not for security. EMC will thereupon own such Mortgage, and all such security
and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto.
Section
3.06 Release
of Mortgage Files.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
the Company or the Servicer of a notification that payment in full has been
escrowed in a manner customary for such purposes for payment to
Certificateholders on the next Distribution Date, the Company or the Servicer
(pursuant to the GMACM Servicing Agreement), as applicable, will (or if the
Company or the Servicer does not, the Master Servicer may), promptly furnish
to
the Custodian, on behalf of the Trustee, two copies of a certification
substantially in the form of Exhibit G hereto signed by a Servicing Officer
or
Master Servicing Officer (as applicable) or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from a
Servicing Officer or Master Servicing Officer (which certification shall include
a statement to the effect that all amounts received in connection with such
payment that are required to be deposited in the Protected Account maintained
by
the Company pursuant to Article V or by the Servicer pursuant to the GMACM
Servicing Agreement have been or will be so deposited) and shall request that
the Custodian, on behalf of the Trustee, deliver to the Company or the Ser