Exhibit 99.1
EXECUTION COPY
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GSAA HOME EQUITY TRUST 2006-17
ASSET-BACKED CERTIFICATES
SERIES 2006-17
MASTER SERVICING
and
TRUST AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
Depositor,
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee,
THE BANK OF NEW YORK,
DEUTSCHE BANK NATIONAL TRUST COMPANY,
and
U.S. BANK NATIONAL ASSOCIATION,
Custodians
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
Master Servicer and Securities Administrator
Dated October 1, 2006
-------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS............................................................................................16
Section 1.01 Definitions...........................................................................16
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES 48
Section 2.01 Conveyance of Mortgage Loans..........................................................48
Section 2.02 Acceptance by the Custodians of the Mortgage Loans....................................50
Section 2.03 Execution and Delivery of Certificates................................................52
Section 2.04 REMIC Matters.........................................................................52
Section 2.05 Representations and Warranties of the Depositor.......................................52
Section 2.06 Representations and Warranties of BNY.................................................54
Section 2.07 Representations and Warranties of Deutsche Bank.......................................54
Section 2.08 Representations and Warranties of U.S. Bank...........................................55
ARTICLE III TRUST ACCOUNTS 56
Section 3.01 Excess Reserve Fund Account; Distribution Account.....................................56
Section 3.02 Investment of Funds in the Distribution Account.......................................57
ARTICLE IV DISTRIBUTIONS 59
Section 4.01 Priorities of Distribution............................................................59
Section 4.02 Monthly Statements to Certificateholders..............................................64
Section 4.03 Allocation of Applied Realized Loss Amounts...........................................66
Section 4.04 Certain Matters Relating to the Determination of LIBOR................................67
Section 4.05 Supplemental Interest Trust...........................................................67
Section 4.06 Trust's Obligations under the Interest Rate Swap Agreement;
Replacement and Termination of the Interest Rate Swap
Agreement.............................................................................69
ARTICLE V THE CERTIFICATES 70
Section 5.01 The Certificates......................................................................70
Section 5.02 Certificate Register; Registration of Transfer and Exchange of
Certificates..........................................................................70
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.....................................76
Section 5.04 Persons Deemed Owners.................................................................76
Section 5.05 Access to List of Certificateholders' Names and Addresses.............................76
Section 5.06 Maintenance of Office or Agency.......................................................77
ARTICLE VI THE DEPOSITOR 77
Section 6.01 Liabilities of the Depositor..........................................................77
i
Section 6.02 Merger or Consolidation of the Depositor..............................................77
Section 6.03 Limitation on Liability of the Depositor and Others...................................77
Section 6.04 Servicing Compliance Review...........................................................78
Section 6.05 Option to Purchase Defaulted Mortgage Loans...........................................78
ARTICLE VII SERVICER DEFAULT 78
Section 7.01 Events of Default.....................................................................78
Section 7.02 Master Servicer to Act; Appointment of Successor......................................79
Section 7.03 Master Servicer to Act as Servicer....................................................80
Section 7.04 Notification to Certificateholders....................................................80
ARTICLE VIII CONCERNING THE TRUSTEE AND THE CUSTODIANS 80
Section 8.01 Duties of the Trustee and the Custodians..............................................80
Section 8.02 [Reserved]............................................................................81
Section 8.03 Certain Matters Affecting the Trustee and the Custodians..............................81
Section 8.04 Trustee and Custodians................................................................83
Section 8.05 Trustee May Own Certificates..........................................................84
Section 8.06 Trustee's Fees and Expenses...........................................................84
Section 8.07 Eligibility Requirements for the Trustee..............................................85
Section 8.08 Resignation and Removal of the Trustee................................................85
Section 8.09 Successor Trustee.....................................................................86
Section 8.10 Merger or Consolidation of the Trustee or the Custodians..............................86
Section 8.11 Appointment of Co-Trustee or Separate Trustee.........................................87
Section 8.12 Tax Matters...........................................................................88
Section 8.13 [Reserved]............................................................................91
Section 8.14 Tax Classification of the Excess Reserve Fund Account and the
Interest Rate Swap Agreement..........................................................91
Section 8.15 Custodial Responsibilities............................................................92
ARTICLE IX ADMINISTRATION OF THE MORTGAGE LOANS BY THE MASTER SERVICER 93
Section 9.01 Duties of the Master Servicer; Enforcement of Servicer's
Obligations .........................................................................93
Section 9.02 Maintenance of Fidelity Bond and Errors and Omissions Insurance.......................95
Section 9.03 Representations and Warranties of the Master Servicer.................................95
Section 9.04 Master Servicer Events of Default.....................................................97
Section 9.05 Waiver of Default.....................................................................99
Section 9.06 Successor to the Master Servicer......................................................99
Section 9.07 Compensation of the Master Servicer..................................................100
Section 9.08 Merger or Consolidation..............................................................100
Section 9.09 Resignation of the Master Servicer...................................................101
Section 9.10 Assignment or Delegation of Duties by the Master Servicer............................101
Section 9.11 Limitation on Liability of the Master Servicer.......................................101
Section 9.12 Indemnification; Third Party Claims..................................................102
ii
ARTICLE X CONCERNING THE SECURITIES ADMINISTRATOR 103
Section 10.01 Duties of the Securities Administrator...............................................103
Section 10.02 Certain Matters Affecting the Securities Administrator...............................104
Section 10.03 Securities Administrator Not Liable for Certificates or Mortgage
Loans................................................................................106
Section 10.04 Securities Administrator May Own Certificates........................................106
Section 10.05 Securities Administrator's Fees and Expenses.........................................106
Section 10.06 Eligibility Requirements for the Securities Administrator............................107
Section 10.07 Resignation and Removal of the Securities Administrator..............................108
Section 10.08 Successor Securities Administrator...................................................109
Section 10.09 Merger or Consolidation of the Securities Administrator..............................109
Section 10.10 Assignment or Delegation of Duties by the Securities
Administrator........................................................................109
ARTICLE XI TERMINATION 110
Section 11.01 Termination upon Liquidation or Purchase of the Mortgage Loans.......................110
Section 11.02 Final Distribution on the Certificates...............................................111
Section 11.03 Additional Termination Requirements..................................................112
ARTICLE XII MISCELLANEOUS PROVISIONS 113
Section 12.01 Amendment............................................................................113
Section 12.02 Recordation of Agreement; Counterparts...............................................115
Section 12.03 Governing Law...........................................................................
Section 12.04 Intention of Parties.................................................................116
Section 12.05 Notices..............................................................................116
Section 12.06 Severability of Provisions...........................................................118
Section 12.07 Limitation on Rights of Certificateholders...........................................118
Section 12.08 Certificates Nonassessable and Fully Paid............................................118
Section 12.09 Waiver of Jury Trial.................................................................119
Section 12.10 Rights of the Swap Provider..........................................................119
ARTICLE XIII EXCHANGE ACT REPORTING 119
Section 13.01 Filing Obligations...................................................................119
Section 13.02 Form 8-K Filings.....................................................................120
Section 13.03 Form 10-D Filings....................................................................121
Section 13.04 Form 10-K Filings....................................................................122
Section 13.05 Form 15 Filing.......................................................................124
Section 13.06 Xxxxxxxx-Xxxxx Certification.........................................................125
Section 13.07 Report on Assessment of Compliance and Attestation...................................125
Section 13.08 Use of Subservicers and Subcontractors...............................................126
iii
SCHEDULES
Schedule I Mortgage Loan Schedule
EXHIBITS
Exhibit A Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class P Certificates
Exhibit C Form of Class R, Class RC and Class RX Certificates
Exhibit D Form of Class X Certificate
Exhibit E Form of Initial Certification of Custodian
Exhibit F Form of Document Certification and Exception Report of
Custodian
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I Form of Rule 144A Letter
Exhibit J-1 Form of Back-up Certification (Master Servicer)
Exhibit J-2 Form of Back-up Certification (Securities Administrator)
Exhibit K Form of Servicing Criteria to be Addressed in Assessment of
Compliance Statement
Exhibit L Form of Request for Release of Documents (U.S. Bank National
Trust Company)
Exhibit L-1 Form of Request for Release of Documents (Deutsche Bank
National Trust Company)
Exhibit L-2 Form of Request for Release of Documents (The Bank of New
York)
Exhibit M Form 8-K Disclosure Information
Exhibit N Additional Form 10-D Disclosure
Exhibit O Additional Form 10-K Disclosure
Exhibit P Form of Master Loan Purchase Agreement, between various
sellers and Xxxxxxx Xxxxx Mortgage Company
Exhibit Q Flow Servicing Agreement, dated as of January 1, 2006,
between Avelo Mortgage, L.L.C. and Xxxxxxx Sachs Mortgage
Company
iv
Exhibit R Servicing Agreement, dated as of July 1, 2004, between
Countrywide Home Loans Servicing LP and Xxxxxxx Xxxxx
Mortgage Company
Exhibit S Master Mortgage Loan Purchase Agreement, dated as of July 1,
2004, between Countrywide Home Loans, Inc. and Xxxxxxx Sachs
Mortgage Company
Exhibit T Amendment Reg AB, dated as of January 1, 2006, between
Xxxxxxx Xxxxx Mortgage Company and Countrywide Home Loans,
Inc.
Exhibit U Amended and Restated Master Mortgage Loan Purchase Agreement,
dated as of November 1, 2005, between GreenPoint Mortgage
Funding, Inc. and Xxxxxxx Sachs Mortgage Company
Exhibit V Servicing Agreement, dated as of November 1, 2005, between
GreenPoint Mortgage Funding, Inc. and Xxxxxxx Xxxxx Mortgage
Company
Exhibit W Amended and Restated Servicing Agreement, dated as of
November 1, 2005, between IndyMac Bank, F.S.B. and Xxxxxxx
Sachs Mortgage Company
Exhibit X Second Amended and Restated Master Mortgage Loan Purchase
Agreement, dated as of March 1, 2006, between IndyMac Bank,
F.S.B. and Xxxxxxx Xxxxx Mortgage Company
Exhibit Y Amendment No. 1, dated as of June 1, 2006, between Xxxxxxx
Sachs Mortgage Company and IndyMac Bank, F.S.B.
Exhibit Z Amended and Restated Flow Seller's Warranties and Servicing
Agreement, dated as of December 1, 2005, between SunTrust
Mortgage, Inc. and Xxxxxxx Xxxxx Mortgage Company
Exhibit AA Amendment No. 1, dated as of July 1, 2006, between Xxxxxxx
Sachs Mortgage Company and SunTrust Mortgage, Inc.
v
THIS MASTER SERVICING AND TRUST AGREEMENT, dated as of October
1, 2006 (this "Agreement"), is hereby executed by and among GS MORTGAGE
SECURITIES CORP., a Delaware corporation (the "Depositor"), DEUTSCHE BANK
NATIONAL TRUST COMPANY ("Deutsche Bank"), as trustee (in such capacity, the
"Trustee"), THE BANK OF NEW YORK ("BNY"), as a custodian, DEUTSCHE BANK NATIONAL
TRUST COMPANY ("Deutsche Bank"), as a custodian, U.S. BANK NATIONAL ASSOCIATION
("U.S. Bank"), as a custodian, (BNY, Deutsche Bank and U.S. Bank, each as a
"Custodian" and together the "Custodians") and XXXXX FARGO BANK, NATIONAL
ASSOCIATION ("Xxxxx Fargo"), as master servicer (in such capacity, the "Master
Servicer") and as securities administrator (in such capacity, the "Securities
Administrator").
W I T N E S S E T H:
- - - - - - - - - -
In consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
PRELIMINARY STATEMENT
The Securities Administrator on behalf of the Trust shall
elect that four segregated asset pools within the Trust Fund be treated for
federal income tax purposes as comprising four REMICs (each, a "Trust REMIC" or,
in the alternative, the "Lower-Tier REMIC", the "Middle-Tier REMIC", the
"Upper-Tier REMIC" and the "Class X REMIC", respectively). The Class UT-Swap IO
Interest, the Class X Interest and each Class of LIBOR Certificates (other than
the right of each Class of LIBOR Certificates to receive Basis Risk Carry
Forward Amounts), represents ownership of a regular interest in the Upper-Tier
REMIC for purposes of the REMIC Provisions. The Class R Certificates represent
ownership of the sole class of residual interest in the Upper-Tier REMIC, the
Class RC Certificates represent ownership of the sole class of residual interest
in the Lower-Tier REMIC and the Middle-Tier REMIC, and the Class RX Certificates
represent ownership of the sole class of residual interest in the Class X REMIC
for purposes of the REMIC Provisions. The Startup Day for each REMIC described
herein is the Closing Date. The latest possible maturity date for each
Certificate is the latest date referenced in Section 2.04. The Class X REMIC
shall hold as assets the Class X Interest and the Class UT-Swap-IO Interest as
set out below. The Upper-Tier REMIC shall hold as assets the several classes of
uncertificated Middle-Tier Regular Interests, set out below. The Middle-Tier
REMIC shall hold as assets the several classes of uncertificated Lower-Tier
Regular Interests, set out below. The Lower-Tier REMIC shall hold as assets the
assets described in the definition of "Trust Fund" herein (other than the
Prepayment Premiums and the Excess Reserve Fund Account). Each Lower-Tier
Regular Interest is hereby designated as a regular interest in the Lower-Tier
REMIC. Each Middle-Tier Regular Interest is hereby designated as a regular
interest in the Middle-Tier REMIC. The Class MT-A-1, Class MT-A-2, Class
MT-A-3A, Class MT-A-3B, Class MT-M-1, Class MT-M-2, Class MT-M-3, Class MT-M-4,
Class MT-M-5, Class MT-M-6, Class MT-B-1 and Class MT-B-2 Interests are hereby
designated the MT-Accretion Directed Classes (the "MT Accretion Directed
Classes"). The Class P Certificates represent beneficial ownership of the
Prepayment Premiums, each Class of Certificates (excluding the Class P, Class X
and each class of Residual Certificates) represents beneficial ownership of a
regular interest in the Upper-Tier REMIC and the right to receive Basis Risk
Carry Forward Amounts and the Class X Certificates represent beneficial
ownership of a regular interest in the Class X REMIC and the Excess Reserve Fund
Account, which portions of the Trust Fund shall be treated as a grantor trust.
2
The Lower-Tier REMIC
The Lower-Tier REMIC Interests will have the Initial Principal Balances
and Pass-Through Rates as set forth in the following table:
----------------------------------- ------------------------ ------------------
Lower-Tier Initial Principal Pass-Through
REMIC Interests Balance(1) Rate
----------------------------------- ------------------------ ------------------
Class LT-1A $ 15,918,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-1B $ 15,918,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-2A $ 25,082,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-2B $ 25,082,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-3A $ 23,861,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-3B $ 23,861,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-4A $ 22,700,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-4B $ 22,700,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-5A $ 21,595,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-5B $ 21,595,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-6A $ 20,545,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-6B $ 20,545,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-7A $ 19,544,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-7B $ 19,544,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-8A $ 18,594,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-8B $ 18,594,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-9A $ 17,688,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-9B $ 17,688,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-10A $ 16,827,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-10B $ 16,827,500.00 (2)
----------------------------------- ------------------------ ------------------
3
----------------------------------- ------------------------ ------------------
Class LT-11A $ 16,009,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-11B $ 16,009,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-12A $ 15,229,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-12B $ 15,229,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-13A $ 14,488,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-13B $ 14,488,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-14A $ 13,783,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-14B $ 13,783,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-15A $ 13,112,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-15B $ 13,112,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-16A $ 12,474,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-16B $ 12,474,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-17A $ 11,867,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-17B $ 11,867,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-18A $ 11,289,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-18B $ 11,289,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-19A $ 10,739,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-19B $ 10,739,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-20A $ 10,217,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-20B $ 10,217,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-21A $ 9,720,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-21B $ 9,720,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-22A $ 9,246,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-22B $ 9,246,500.00 (2)
----------------------------------- ------------------------ ------------------
4
----------------------------------- ------------------------ ------------------
Class LT-23A $ 8,796,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-23B $ 8,796,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-24A $ 8,368,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-24B $ 8,368,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-25A $ 7,961,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-25B $ 7,961,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-26A $ 7,573,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-26B $ 7,573,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-27A $ 7,204,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-27B $ 7,204,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-28A $ 6,854,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-28B $ 6,854,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-29A $ 6,520,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-29B $ 6,520,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-30A $ 6,203,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-30B $ 6,203,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-31A $ 5,901,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-31B $ 5,901,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-32A $ 5,613,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-32B $ 5,613,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-33A $ 5,340,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-33B $ 5,340,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-34A $ 5,081,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-34B $ 5,081,000.00 (2)
----------------------------------- ------------------------ ------------------
5
----------------------------------- ------------------------ ------------------
Class LT-35A $ 4,833,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-35B $ 4,833,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-36A $ 4,598,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-36B $ 4,598,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-37A $ 4,374,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-37B $ 4,374,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-38A $ 4,161,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-38B $ 4,161,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-39A $ 3,959,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-39B $ 3,959,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-40A $ 3,766,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-40B $ 3,766,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-41A $ 3,582,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-41B $ 3,582,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-42A $ 3,408,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-42B $ 3,408,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-43A $ 3,242,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-43B $ 3,242,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-44A $ 3,084,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-44B $ 3,084,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-45A $ 2,934,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-45B $ 2,934,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-46A $ 2,791,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-46B $ 2,791,500.00 (2)
----------------------------------- ------------------------ ------------------
6
----------------------------------- ------------------------ ------------------
Class LT-47A $ 2,655,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-47B $ 2,655,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-48A $ 2,526,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-48B $ 2,526,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-49A $ 2,403,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-49B $ 2,403,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-50A $ 2,286,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-50B $ 2,286,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-51A $ 2,175,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-51B $ 2,175,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-52A $ 2,069,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-52B $ 2,069,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-53A $ 1,968,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-53B $ 1,968,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-54A $ 1,872,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-54B $ 1,872,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-55A $ 1,781,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-55B $ 1,781,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-56A $ 1,694,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-56B $ 1,694,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-57A $ 1,612,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-57B $ 1,612,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-58A $ 1,534,500.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-58B $ 1,534,500.00 (2)
----------------------------------- ------------------------ ------------------
7
----------------------------------- ------------------------ ------------------
Class LT-59A $ 1,461,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-59B $ 1,461,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-60A $ 25,776,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-60B $ 25,776,000.00 (2)
----------------------------------- ------------------------ ------------------
Class LT-Support (3) (2)
----------------------------------- ------------------------ ------------------
---------------------------
(1) Scheduled principal, prepayments and Realized Losses will be allocated
first, to the Class LT-Support Interest and second, among the other
Classes designated "LT-", first, sequentially to the Class having the
lowest cardinal number following such designation, in each case until
reduced to zero, and second, among each class having the same cardinal
number pro rata between each such class.
(2) On each Distribution Date, the interest rate will be the Weighted Average
of the Adjusted Net Mortgages Rates then in effect on the beginning of
the related Due Period on the Mortgage Loans ("Pool WAC").
(3) On each Distribution Date, following the allocation of Principal Amounts
and Realized Losses, the principal balance in respect of the Class
LT-Support Interest will equal the excess of the principal balance of the
Mortgage Loans over the principal balance in respect of the remaining
Lower-Tier REMIC Interests designated as "LT-".
In addition to issuing the Lower-Tier Regular Interests, the
Lower-Tier REMIC shall issue the Class R-1 Interest which shall be the sole
class of residual interests in the Lower-Tier REMIC. The Class RC Certificates
will represent ownership of the Class R-1 Interest and will be issued as a
single certificate in definitive form in a principal amount of $100 and shall
have no interest rate. Amounts received by the Class R-1 Interest shall be
deemed paid from the Lower-Tier REMIC.
The Middle-Tier REMIC
Corresponding
Middle-Tier Interest Middle-Tier Initial Middle-Tier Principal Upper-Tier
Designation Interest Rate Amount REMIC Class
--------------------------- ------------- ----------------------------------------- ------------------------
Class MT-A1 (1) 1/2 initial Class Certificate Balance of A-1
Corresponding Upper-Tier
REMIC Regular Interest
Class MT-A-2A (1) 1/2 initial Class Certificate Balance of A-2A
Corresponding Upper-Tier
REMIC Regular Interest
Class MT-A-3A (1) 1/2 initial Class Certificate Balance of A-3A
Corresponding Upper-Tier
REMIC Regular Interest
Class MT-A-3B (1) 1/2 initial Class Certificate Balance X-0X
0
Xxxxxxxxxxxxx
Xxxxxx-Xxxx Interest Middle-Tier Initial Middle-Tier Principal Upper-Tier
Designation Interest Rate Amount REMIC Class
--------------------------- ------------- ----------------------------------------- ------------------------
of Corresponding Upper-Tier
REMIC Regular Interest
Class MT-M-1 (1) 1/2 initial Class Certificate Balance of M-1
Corresponding Upper-Tier
REMIC Regular Interest
Class MT-M-2 (1) 1/2 initial Class Certificate Balance of M-2
Corresponding Upper-Tier
REMIC Regular Interest
Class MT-M-3 (1) 1/2 initial Class Certificate Balance of M-3
Corresponding Upper-Tier
REMIC Regular Interest
Class MT-M-4 (1) 1/2 initial Class Certificate Balance of M-4
Corresponding Upper-Tier
REMIC Regular Interest
Class MT-M-5 (1) 1/2 initial Class Certificate Balance of M-5
Corresponding Upper-Tier
REMIC Regular Interest
Class MT-M-6 (1) 1/2 initial Class Certificate Balance of M-6
Corresponding Upper-Tier
REMIC Regular Interest
Class MT-B-1 (1) 1/2 initial Class Certificate Balance of B-1
Corresponding Upper-Tier
REMIC Regular Interest
Class MT-B-2 (1) 1/2 initial Class Certificate Balance of B-2
Corresponding Upper-Tier
REMIC Regular Interest
Class MT-B-3 (1) 1/2 initial Class Certificate Balance of B-3
Corresponding Upper-Tier
REMIC Regular Interest
Class MT-Accrual (1) 1/2 Pool Stated Principal Balance plus 1/2 N/A
Overcollateralized Amount
Class MT-Swap IO (2) (2) N/A
-------------------------------
-------------------------------------------------------------------------------
(1) The interest rate with respect to any Distribution Date for these
interests will equal the weighted average of the pass through rates of
the Lower-Tier REMIC Interests treating: (i) each "A" class (e.g. XX-0X,
XX-0X, XX-0X ...) as subject to a cap and a floor equal to the product
of: (i) 2 and (ii) Pool WAC minus the fixed rate payable to the Swap
Provider by the Trust for such Distribution Date, and (ii) each "B" class
(e.g. LT-1B, LT-2B, LT-3B ...) as subject to a cap and a floor rate equal
to the product of 2 and One Month LIBOR, in each case whose cardinal
number preceding such designation (x.x. -0, -0, -0,...) is not exceeded
by the ordinal number of the Distribution Date following the Closing Date
(e.g. first, second, third,...) for such Distribution Date (the "Tax WAC
Cap").
9
(2) For each Distribution Date, the interest rate will equal the excess of
the fixed rate payable to the Swap Provider by the Trust for such
Distribution Date over one month LIBOR on a notional balance equal to the
sum of the principal balances of each Lower-Tier REMIC Regular Interests
whose cardinal number following such designation (x.x. -0, -0, -0,...) is
not exceeded by the ordinal number of the Distribution Date following the
Closing Date (e.g. first, second, third,...) for such Distribution Date.
The Middle-Tier REMIC shall hold as assets all of the
Middle-Tier REMIC Regular Interests.
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount will be payable as a reduction of the Middle-Tier
Principal Amount of the MT-Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralized
Amount that is attributable to a reduction in the Class Certificate Balance of
its Corresponding Class) and will be accrued and added to the Middle-Tier
Principal Amount of the Class MT-Accrual Interest. On each Distribution Date,
the increase in the Middle-Tier Principal Amount of the Class MT-Accrual
Interest may not exceed interest accruals for such Distribution Date for the
Class MT-Accrual Interest. In the event that: (i) 50% of the increase in the
Overcollateralized Amount exceeds (ii) interest accruals on the Class MT-Accrual
Interest for such Distribution Date, the excess for such Distribution Date
(accumulated with all such excesses for all prior Distribution Dates) will be
added to any increase in the Overcollateralized Amount for purposes of
determining the amount of interest accrual on the Class MT-Accrual Interest
payable as principal on the MT-Accretion Directed Classes on the next
Distribution Date pursuant to the first sentence of this paragraph. All payments
of scheduled principal and prepayments of principal generated by the Mortgage
Loans shall be allocated (i) 50% to the Class MT-Accrual Interest and (ii) 50%
to the MT-Accretion Directed Classes (principal payments shall be allocated
among such MT-Accretion Directed Classes in an amount equal to 50% of the
principal amounts allocated to their respective Corresponding Classes), until
paid in full. Notwithstanding the above, principal payments allocated to the
Class X Interest that result in the reduction in the Overcollateralized Amount
shall be allocated to the Class MT-Accrual Interest (until paid in full).
Realized Losses shall be applied so that after all distributions have been made
on each Distribution Date (i) the Middle-Tier Principal Amount of each of the
MT-Accretion Directed Classes is equal to 50% of the Class Certificate Balance
of its Corresponding Class, and (ii) the Class MT-Accrual Interest are equal to
50% of the aggregate Stated Principal Balance of the Mortgage Loans plus 50% of
the Overcollateralized Amount.
In addition to issuing the Middle-Tier Regular Interests, the
Middle-Tier REMIC shall issue the Class R-2 Interest which shall be the sole
class of residual interests in the Middle-Tier REMIC. The Class RC Certificates
will represent ownership of the Class R-2 Interest and will be issued as a
single certificate in definitive form in a principal amount of $100 and shall
have no interest rate. Amounts received by the Class R-2 Interest shall be
deemed paid from the Middle-Tier REMIC.
10
The Upper-Tier REMIC
The Upper-Tier REMIC shall issue the following classes of
Upper-Tier Regular Interests, and each such interest, other than the Class UT-R
Interest, is hereby designated as a regular interest in the Upper-Tier REMIC.
Upper-Tier Interest Initial Upper-Tier
Rate and Principal Amount and
Upper-Tier Corresponding Corresponding Class Corresponding Class
Class Designation Class Pass-Through Rate Certificate Balance of Certificates
---------------------------- ---------------------------------- ----------------------- -------------------------
Class A-1 (1) $ 597,094,000 Class A-1(13)
Class A-2 (2) $ 158,154,000 Class A-2(13)
Class A-3A (3) $ 227,980,000 Class A-3A(13)
Class A-3B (4) $ 25,332,000 Class A-3B(13)
Class M-1 (5) $ 14,083,000 Class M-1(13)
Class M-2 (6) $ 13,541,000 Class M-2(13)
Class M-3 (7) $ 7,042,000 Class M-3(13)
Class M-4 (8) $ 5,958,000 Class M-4(13)
Class M-5 (9) $ 5,417,000 Class M-5(13)
Class M-6 (10) $ 5,417,000 Class M-6(13)
Class B-1 (11) $ 6,500,000 Class B-1(13)
Class B-2 (12) $ 5,417,000 Class B-2(13)
Class X (13) (13) Class X(12)
Class UT-Swap IO (15) (15) Class X(12)
(1) The Class A-1 Interest will bear interest during each Interest Accrual
period at a per annum rate equal to the least of (i) one-month LIBOR
plus 0.060% (0.120% after the first distribution date on which the
optional clean-up call is exercisable), (ii) the Tax Loan Cap and (iii)
the Tax WAC Cap.
(2) The Class A-2 Interest will bear interest during each Interest Accrual
period at a per annum rate equal to the least of (i) one-month LIBOR
plus 0.180% (0.360% after the first distribution date on which the
optional clean-up call is exercisable), (ii) the Tax Loan Cap and (iii)
the Tax WAC Cap.
(3) The Class A-3A Interest will bear interest during each Interest Accrual
period at a per annum rate equal to the least of (i) one-month LIBOR
plus 0.240% (0.480% after the first distribution date on which the
optional clean-up call is exercisable), (ii) the Tax Loan Cap and (iii)
the Tax WAC Cap.
(4) The Class A-3B Interest will bear interest during each Interest Accrual
period at a per annum rate equal to the least of (i) one-month LIBOR
plus 0.270% (0.540% after the first distribution date on which the
optional clean-up call is exercisable), (ii) the Tax Loan Cap and (iii)
the Tax WAC Cap.
(5) The Class M-1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to lesser of (i) one-month LIBOR plus
0.290% (0.435% after the first
11
distribution date on which the optional clean-up call is exercisable)
and (ii) the Tax WAC Cap.
(6) The Class M-2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to lesser of (i) one-month LIBOR plus
0.300% (0.450% after the first distribution date on which the optional
clean-up call is exercisable) and (ii) the Tax WAC Cap.
(7) The Class M-3 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to lesser of (i) one-month LIBOR plus
0.320% (0.480% after the first distribution date on which the optional
clean-up call is exercisable) and (ii) the Tax WAC Cap.
(8) The Class M-4 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to lesser of (i) one-month LIBOR plus
0.370% (0.555% after the first distribution date on which the optional
clean-up call is exercisable) and (ii) the Tax WAC Cap.
(9) The Class M-5 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to lesser of (i) one-month LIBOR plus
0.390% (0.585% after the first distribution date on which the optional
clean-up call is exercisable) and (ii) the Tax WAC Cap.
(10) The Class M-6 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to lesser of (i) one-month LIBOR plus
0.450% (0.675% after the first distribution date on which the optional
clean-up call is exercisable) and (ii) the Tax WAC Cap.
(11) The Class B-1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to lesser of (i) one-month LIBOR plus
1.000% (1.500% after the first distribution date on which the optional
clean-up call is exercisable) and (ii) the Tax WAC Cap.
(12) The Class B-2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to lesser of (i) one-month LIBOR plus
2.000% (3.000% after the first distribution date on which the optional
clean-up call is exercisable) and (ii) the Tax WAC Cap.
(13) The Class X Interest will have a principal balance to the extent of any
Overcollateralized Amount. The Class X Interest will not accrue
interest on such balance but will accrue interest on a notional
principal balance. As of any Distribution Date, the Class X Interest
shall have a notional principal balance equal to the aggregate of the
principal balances of the Middle-Tier Regular Interests as of the first
day of the related Interest Accrual Period. With respect to any
Interest Accrual Period, the Class X Interest shall bear interest at a
rate equal to the excess, if any, of the Tax WAC Cap over the product
of (i) 2 and (ii) the weighted average Middle-Tier Interest Rate of the
Middle-Tier Regular Interests, where the Middle-Tier Interest Rates on
the Class MT-Accrual Interest is subject to a cap equal to zero and
each MT-Accretion Directed Class is subject to a cap equal to the
Pass-Through Rate on its Corresponding Class. With respect to any
Distribution Date, interest that so accrues on the notional principal
balance of the Class X Interest shall be deferred in an amount equal to
any increase in the Overcollateralized Amount on such Distribution
12
Date. Such deferred interest shall not itself bear interest. The Class
X Certificates will represent beneficial ownership of a regular
interest issued by the Class X REMIC, the Interest Rate Swap Agreement,
the Supplemental Interest Trust and amounts in the Excess Reserve Fund
Account and the Supplemental Interest Trust, subject to the obligation
to make payments from the Excess Reserve Fund Account in respect of
Basis Risk Carry Forward Amounts. For federal income tax purposes, the
Securities Administrator will treat the Class X Certificateholders'
obligation to make payments from the Excess Reserve Fund Account and
the Supplemental Interest Trust as payments made pursuant to an
interest rate cap contract written by the Class X Certificateholders in
favor of each Class of LIBOR Certificates. Such rights of the Class X
Certificateholders and Principal Certificateholders shall be treated as
held in a portion of the Trust Fund that is treated as a grantor trust
under subpart E, Part I of subchapter J of the Code.
(14) Each of the Certificates will bear interest at a pass through rate
equal to the pass through rate in respect of its Corresponding
Upper-Tier REMIC Class substituting the term "WAC Cap" for each
reference to "Tax WAC Cap". Each of these Certificates will represent
not only the ownership of the Corresponding Class of Upper-Tier Regular
Interest but also the right to receive payments from the Excess Reserve
Fund Account and the Supplemental Interest Trust in respect of any
Basis Risk Carry Forward Amounts. For federal income tax purposes, the
Securities Administrator will treat a Certificateholder's right to
receive payments from the Excess Reserve Fund Account and the
Supplemental Interest Trust as payments made pursuant to an interest
rate cap contract written by the Class X Certificateholders.
(15) For each Distribution Date, 100% of the cash flow in respect of the
Class MT-Swap IO Interest. The Class X Certificates will be entitled to
100% of the Cash flow in respect of the Class UT-Swap IO Interest.
Each of these Certificates will also be subject to the obligation to
pay Class IO Shortfalls as described in Section 8.14. For federal income tax
purposes, any amount distributed on the Upper Tier REMIC Interests on any such
Distribution Date in excess of their Pass Through Rate, (the "REMIC Cap") shall
be treated as having been paid from the Excess Reserve Fund Account or the
Supplemental Interest Trust, as applicable, and any excess of the REMIC Cap over
the amount distributable on such Class of Upper Tier REMIC Interests on such
Distribution Date shall be treated as having been paid to the Supplemental
Interest Trust, all pursuant to, and as further provided in, Section 8.14. The
Securities Administrator will treat a LIBOR Certificateholder's right to receive
payments from the Excess Reserve Fund Account and the Supplemental Interest
Trust as payments made pursuant to an interest rate cap contract written by the
Class X Certificateholders.
In addition to issuing the Upper-Tier Regular Interests, the Upper-Tier
REMIC shall issue the Class R Certificates, which shall be the sole class of
residual interests in the Upper-Tier REMIC. The Class R Certificates will be
issued as a single certificate in definitive form in a principal amount of $100
and shall have no interest rate. Amounts received by the Class R Certificates
shall be deemed paid from the Upper-Tier REMIC.
13
Class X REMIC
The Class X REMIC shall issue the following classes of interests. The
Class X Certificates shall represent a regular interest in the Class X REMIC and
the Class RX Certificates shall represent the sole class of residual interest in
the Class X REMIC.
Class X
Class X REMIC Interest REMIC
------------- --------
Designation Rate Principal
----------- ---- ---------
Amount
------
Class X Certificates (1) (1)
-----------------
(1) The Class X Certificates are entitled to 100% of the interest and
principal on the Class X Interest and the Class UT-Swap-IO Interest on
each Distribution Date.
In addition to issuing the Class X Certificates, the Class X REMIC
shall issue the Class R-X Certificates which shall be the sole class of residual
interests in the Class X REMIC. The Class RX Certificates will be issued as a
single certificate in definitive form in a principal amount of $100 and shall
have no interest rate. Amounts received by the Class RX Certificates shall be
deemed paid from the Class X REMIC.
The foregoing REMIC structure is intended to cause all of the cash from
the Mortgage Loans to flow through to the Upper-Tier REMIC as cash flow on a
REMIC regular interest, without creating any actual or potential shortfall
(other than for credit losses) to any Trust REMIC regular interest. It is not
intended that the Class R, Class RC or Class RX Certificates be entitled to any
cash flow pursuant to this Agreement except as provided in Section
4.01(a)(ii)(A)(a) hereunder.
For any purpose for which the Pass-Through Rates are
calculated, the interest rate on the Mortgage Loans shall be appropriately
adjusted to account for the difference between the monthly day count convention
of the Mortgage Loans and the monthly day count convention of the regular
interests issued by each of the REMICs. For purposes of calculating the
Pass-Through Rates for each of the interests issued by the Lower-Tier REMIC and
the Middle-Tier REMIC such rates shall be adjusted to equal a monthly day count
convention based on a 30 day month for each Due Period and a 360-day year so
that the Mortgage Loans and all regular interests will be using the same monthly
day count convention.
The minimum denomination for each Class of the Offered
Certificates will be $50,000 initial Certificate Balance, with integral
multiples of $1 in excess thereof except that one Certificate in each Class may
be issued in a different amount. The minimum denomination for (a) the Class R
and Class RC Certificates will each be $100 and each will be a 100% Percentage
Interest in such Class, (b) the Class RX Certificates will be a 100% Percentage
Interest in such
14
Class and (c) the Class P and Class X Certificates will be a 1% Percentage
Interest in each such Class.
Set forth below are designations of Classes of Certificates to
the categories used herein:
Book-Entry Certificates...................... All Classes of Certificates other than the Physical
Certificates.
Class A Certificates......................... The Class A-1, Class A-2, Class A-3A and Class A-3B
Certificates, collectively.
Class B Certificates......................... The Class B-1, Class B-2 and Class B-3 Certificates,
collectively.
Class M Certificates......................... The Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5 and Class M-6 Certificates, collectively.
Residual Certificates........................ The Class R, Class RC and Class RX Certificates.
ERISA Restricted The Private Certificates and any Certificate with a rating below
Certificates................................. the lowest applicable permitted rating under the Underwriters'
Exemption.
LIBOR Certificates........................... The Offered Certificates other than the Residual
Certificates.
Offered Certificates......................... All Classes of Certificates other than the Private Certificates.
Private Certificates......................... The Class B-3, Class P and Class X Certificates.
Physical Certificates........................ The Class R, Class RC, Class RX, Class P and Class X Certificates.
Principal Certificates....................... The Offered Certificates.
Rating Agencies.............................. Xxxxx'x and S&P.
Regular Certificates......................... All Classes of Certificates other than the Residual Certificates.
Subordinated Certificates.................... The Class M and Class B Certificates.
15
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein but
not defined herein shall have the meanings given them in the applicable
Servicing Agreement or Sale Agreement. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
10-K Filing Deadline: As defined in Section 13.04.
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with
respect to which any portion of a Monthly Payment is, as of the last day of the
prior Due Period, two (2) months or more past due (without giving effect to any
grace period), each Mortgage Loan in foreclosure, all REO Property and each
Mortgage Loan for which the Mortgagor has filed for bankruptcy.
Account: Any of the Distribution Account or the Excess
Reserve Fund Account. Each such Account shall be a separate Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect
to any Distribution Date for each Class of LIBOR Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior to
such Distribution Date, as reduced by such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for the related Due
Period allocated to such Class pursuant to Section 4.01.
Additional Form 10-D Disclosure: As defined in Section 13.03.
Additional Form 10-K Disclosure: As defined in Section 13.04.
Additional Servicer: Each affiliate of each Servicer that
services any of the Mortgage Loans and each Person who is not an affiliate of
the any Servicer, who services 10% or more of the Mortgage Loans. For
clarification purposes, the Master Servicer and the Securities Administrator are
Additional Servicers.
Adjusted Net Mortgage Interest Rate: As to each Mortgage Loan
and at any time, the per annum rate equal to the Mortgage Interest Rate less the
Expense Fee Rate.
Administrative Fee Rate: With respect to any Mortgage Loan,
the Master Servicing Fee Rate.
Administrative Fees: As to each Mortgage Loan, the fees
calculated by reference to the Administrative Fee Rate.
Advance: Any Monthly Advance or Servicing Advance.
Affiliate: With respect to any Person, any other Person
controlling, controlled by or under common control with such first Person. For
the purposes of this definition, "control"
16
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Agreement: This Master Servicing and Trust Agreement and all
amendments or supplements hereto.
Applied Realized Loss Amount: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class Certificate Balance of
the LIBOR Certificates after distributions of principal on such Distribution
Date exceeds the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
Assignment of Mortgage: An assignment of the Mortgage, notice
of transfer or equivalent instrument in recordable form (other than the
assignee's name and recording information not yet returned from the recording
office), reflecting the sale of the Mortgage to the Trustee.
Assignment Agreement: A Step 1 Assignment Agreement or a
Step 2 Assignment Agreement.
Auction Call: As defined in Section 9.03(b).
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Master Servicer (x) the sum of
(without duplication) (i) all scheduled installments of interest (net of the
related Expense Fees) and principal due on the Due Date on such Mortgage Loans
in the related Due Period and received on or prior to the related Determination
Date, together with any Monthly Advances in respect thereof; (ii) all
Condemnation Proceeds, Insurance Proceeds and Liquidation Proceeds received
during the related Principal Prepayment Period (in each case, net of
unreimbursed expenses incurred in connection with a liquidation or foreclosure
and unreimbursed Advances, if any); (iii) all partial or full prepayments
(excluding Prepayment Premiums) on the Mortgage Loans received during the
related Principal Prepayment Period together with all Compensating Interest paid
in connection therewith; (iv) all amounts received with respect to such
Distribution Date in connection with a purchase or repurchase of a Deleted
Mortgage Loan; (v) all amounts received with respect to such Distribution Date
in connection with the operation of the Primary Mortgage Insurance Policy, if
applicable; (vi) all amounts received with respect to such Distribution Date as
a Substitution Adjustment Amount received in connection with the substitution of
a Mortgage Loan; (vii) all Net Swap Receipt Amounts, if any, less Net Swap
Payment Amounts, if any, for such Distribution Date; and (viii) all proceeds
received with respect to the termination of the Trust Fund pursuant to clause
(a) of Section 11.01; reduced by (y) all amounts in reimbursement for Monthly
Advances and Servicing Advances previously made with respect to the Mortgage
Loans, and other amounts as to which the Servicers, the Depositor, the Master
Servicer, the Securities Administrator, the Trustee (or co-trustee) or the
Custodians are entitled to be paid or reimbursed pursuant to this Agreement.
Avelo: Avelo Mortgage, L.L.C., a Delaware limited liability
company, and its successors in interest.
17
Avelo Call: As defined in Section 11.01.
Avelo Servicing Agreement: The Flow Servicing Agreement,
dated as of January 1, 2006, between Avelo and GSMC, as modified by the
related Assignment Agreements.
Back-Up Certification: As defined in Section 13.06.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Principal Remittance Amount
for such Distribution Date over (ii) the Excess Overcollateralized Amount, if
any, for such Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of
LIBOR Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of LIBOR Certificates is
based upon the WAC Cap, the excess, if any, of (i) the amount of interest such
Class of Certificates would otherwise be entitled to receive on such
Distribution Date had such Pass-Through Rate not been subject to the WAC Cap,
over (ii) the amount of interest that Class of Certificates received on such
Distribution Date taking into account the WAC Cap and (B) the Basis Risk Carry
Forward Amount for such Class of Certificates for all previous Distribution
Dates not previously paid, together with interest thereon at a rate equal to the
applicable Pass-Through Rate for such Class of Certificates for such
Distribution Date, without giving effect to the WAC Cap).
Basis Risk Payment: For any Distribution Date, an amount equal
to the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for
such Distribution Date, (ii) the Class X Distributable Amount (prior to any
reduction for Basis Risk Payments) or (iii) the amount payable from the
Supplemental Interest Trust.
BNY: The Bank of New York, a New York banking corporation, and
its successors in interest.
Book-Entry Certificates: As specified in the Preliminary
Statement.
Business Day: Any day other than (i) Saturday or Sunday, or
(ii) a day on which banking and savings and loan institutions in (a) the States
of New York, California, Texas, Maryland and Minnesota, (b) with respect to a
Servicer, the State in which such Servicer's servicing operations are located,
or (c) the State in which the Trustee's operations are located, are authorized
or obligated by law or executive order to be closed.
Certificate: Any one of the Certificates executed by the
Securities Administrator in substantially the forms attached hereto as exhibits.
Certificate Balance: With respect to any Class of LIBOR
Certificates, at any date, the maximum dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
Denomination thereof minus all distributions of principal previously made with
respect thereto and in the case of any Subordinated Certificates, reduced by any
Applied Realized Loss Amounts applicable to such Class of Subordinated
Certificates; provided, however, that immediately following the Distribution
Date on which a Subsequent Recovery is distributed, the Class Certificate
Balances of any Class or Classes of Certificates that
18
have been previously reduced by Applied Realized Loss Amounts will be
increased, in order of seniority, by the amount of the Subsequent Recovery
distributed on such Distribution Date (up to the amount of Applied Realized
Loss Amounts allocated to such Class or Classes). The Class X and Class P
Certificates have no Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to
Section 5.02.
Certificateholder or Holder: The person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purpose of giving any consent pursuant to this Agreement, any Certificate
registered in the name of the Depositor or any affiliate of the Depositor shall
be deemed not to be Outstanding and the Percentage Interest evidenced thereby
shall not be taken into account in determining whether the requisite amount of
Percentage Interests necessary to effect such consent has been obtained;
provided, however, that if any such Person (including the Depositor) owns 100%
of the Percentage Interests evidenced by a Class of Certificates, such
Certificates shall be deemed to be Outstanding for purposes of any provision
hereof that requires the consent of the Holders of Certificates of a particular
Class as a condition to the taking of any action hereunder. The Securities
Administrator is entitled to rely conclusively on a certification of the
Depositor or any affiliate of the Depositor in determining which Certificates
are registered in the name of an affiliate of the Depositor.
Certification Parties: As defined in Section 13.06.
Certifying Person: As defined in Section 13.06.
Class: All Certificates bearing the same class designation
as set forth in this Agreement.
Class A Certificates: As specified in the Preliminary
Statement.
Class A-1 Certificates: All Certificates bearing the class
designation of "Class A-1."
Class A-2 Certificates: All Certificates bearing the class
designation of "Class A-2."
Class A-3A Certificates: All Certificates bearing the class
designation of "Class A-3A."
Class A-3B Certificates: All Certificates bearing the class
designation of "Class A-3B."
Class A Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Class Certificate Balance
of the Class A Certificates immediately prior to such Distribution Date over
(ii) the lesser of (A) 85.90% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of
19
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Class B Certificates: As specified in the Preliminary
Statement.
Class B-1 Certificates: All Certificates bearing the class
designation of "Class B-1."
Class B-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the
Class M-2 Principal Distribution Amount on such Distribution Date), (D) the
Class Certificate Balance of the Class M-3 Certificates (after taking into
account the distribution of the Class M-3 Principal Distribution Amount on
such Distribution Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the Class M-4
Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class M-5 Certificates (after taking into account
the distribution of the Class M-5 Principal Distribution Amount on such
Distribution Date), (G) the Class Certificate Balance of the Class M-6
Certificates (after taking into account the distribution of the Class M-6
Principal Distribution Amount on such Distribution Date) and (H) the Class
Certificate Balance of the Class B-1 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) the product of (x) 96.80% and
(y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class B-2 Certificates: All Certificates bearing the class
designation of "Class B-2."
Class B-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the
Class M-2 Principal Distribution Amount on such Distribution Date), (D) the
Class Certificate Balance of the Class M-3 Certificates (after taking into
account the distribution of the Class M-3 Principal Distribution Amount on
such Distribution Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the Class M-4
Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class M-5 Certificates (after taking into account
the distribution of the Class M-5 Principal Distribution Amount on such
Distribution Date), (G) the Class Certificate Balance of the Class M-6
Certificates (after taking into account the distribution of the Class M-6
Principal Distribution
20
Amount on such Distribution Date), (H) the Class Certificate Balance of the
Class B-1 Certificates (after taking into account the distribution of the
Class B-1 Principal Distribution Amount on such Distribution Date) and (I) the
Class Certificate Balance of the Class B-2 Certificates immediately prior to
that Distribution Date over (ii) the lesser of (A) the product of (x) 97.80%
and (y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class B-3 Certificates: All Certificates bearing the class
designation of "Class B-3."
Class B-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the Class
M-2 Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account the
distribution of the Class M-3 Principal Distribution Amount on such Distribution
Date), (E) the Class Certificate Balance of the Class M-4 Certificates (after
taking into account the distribution of the Class M-4 Principal Distribution
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the Class
M-5 Principal Distribution Amount on such Distribution Date), (G) the Class
Certificate Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (H) the Class Certificate Balance of the Class B-1 Certificates (after
taking into account the distribution of the Class B-1 Principal Distribution
Amount on such Distribution Date), (I) the Class Certificate Balance of the
Class B-2 Certificates (after taking into account the distribution of the Class
B-2 Principal Distribution Amount on such Distribution Date) and (J) the Class
Certificate Balance of the Class B-3 Certificates immediately prior to that
Distribution Date over (ii) the lesser of (A) the product of (x) 98.80% and (y)
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class Certificate Balance: With respect to any Class and as to
any date of determination, the aggregate of the Certificate Balances of all
Certificates of such Class as of such date.
Class IO Shortfall: As defined in Section 8.15. For the
avoidance of doubt, the Class IO Shortfall for any Distribution Date shall equal
the amount payable to the Class X Certificates in respect of amounts due to the
Swap Provider on such Distribution Date (other than Defaulted Swap Termination
Payments) in excess of the amount payable on the Class X Interest on such
Distribution Date, all as further provided in Section 8.15.
Class M Certificates: As specified in the Preliminary
Statement.
21
Class M-1 Certificates: All Certificates bearing the class
designation of "Class M-1."
Class M-1 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), and (B) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (ii) the lesser of (A) the
product of (x) 88.50% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date) and (C) the Class Certificate Balance of the
Class M-2 Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) the product of (x) 91.00% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date over the Overcollateralization Floor.
Class M-3 Certificates: All Certificates bearing the class
designation of "Class M-3."
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the
Class M-2 Principal Distribution Amount on such Distribution Date) and (D) the
Class Certificate Balance of the Class M-3 Certificates immediately prior to
such Distribution Date over (ii) the lesser of (A) the product of (x) 92.40%
and (y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-4 Certificates: All Certificates bearing the class
designation of "Class M-4."
Class M-4 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A
22
Certificates (after taking into account the distribution of the Class A
Principal Distribution Amount on such Distribution Date), (B) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account
the distribution of the Class M-1 Principal Distribution Amount on such
Distribution Date), (C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account
the distribution of the Class M-3 Principal Distribution Amount on such
Distribution Date) and (E) the Class Certificate Balance of the Class M-4
Certificates immediately prior to such Distribution Date over (ii) the lesser
of (A) the product of (x) 93.70% and (y) the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date and (B) the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over the Overcollateralization Floor.
Class M-5 Certificates: All Certificates bearing the class
designation of "Class M-5."
Class M-5 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the
Class M-2 Principal Distribution Amount on such Distribution Date), (D) the
Class Certificate Balance of the Class M-3 Certificates (after taking into
account the distribution of the Class M-3 Principal Distribution Amount on
such Distribution Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the Class M-4
Principal Distribution Amount on such Distribution Date), and (F) the Class
Certificate Balance of the Class M-5 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) the product of (x) 94.70% and
(y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-6 Certificates: All Certificates bearing the class
designation of "Class M-6."
Class M-6 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the
Class M-2 Principal Distribution Amount on such Distribution Date), (D) the
Class Certificate Balance of the Class M-3 Certificates (after taking into
account the distribution of the Class M-3 Principal Distribution Amount on
such Distribution Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the Class M-4
Principal Distribution
23
Amount on such Distribution Date), (F) the Class Certificate Balance of the
Class M-5 Certificates (after taking into account the distribution of the
Class M-5 Principal Distribution Amount on such Distribution Date) and (G) the
Class Certificate Balance of the Class M-6 Certificates immediately prior to
such Distribution Date over (ii) the lesser of (A) the product of (x) 95.70%
and (y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class P Certificates: All Certificates bearing the class
designation of "Class P."
Class R Certificates: All Certificates bearing the class
designation of "Class R."
Class RC Certificates: All Certificates bearing the class
designation of "Class RC."
Class RX Certificates: All Certificates bearing the class
designation of "Class RX."
Class X Certificates: All Certificates bearing the class
designation of "Class X."
Class X Distributable Amount: On any Distribution Date, (i)
as a distribution in respect of interest, the amount of interest that has
accrued on the Class X Interest and not applied as an Extra Principal
Distribution Amount on such Distribution Date, plus any such accrued interest
remaining undistributed from prior Distribution Dates, plus, without
duplication, (ii) as a distribution in respect of principal, any portion of
the principal balance of the Class X Interest which is distributable as an
Overcollateralization Reduction Amount, minus (iii) any amounts paid as a
Basis Risk Payment.
Class X Interest: The Upper-Tier Regular Interest as
specified and described in the Preliminary Statement and the related footnote
thereto.
Class X REMIC: As defined in the Preliminary Statement.
Closing Date: October 30, 2006.
Code: The Internal Revenue Code of 1986, including any
successor or amendatory provisions.
Collection Account: The "Custodial Account" as defined in
the applicable Servicing Agreement.
Commission: The U.S. Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, each
Servicer, other than SunTrust shall provide compensating interest equal to the
lesser of (A) the difference between the interest paid by the applicable
mortgagors for that Prepayment Period in connection with the prepayments and
thirty (30) days' interest on the related mortgage loans and (B) one-half the
applicable monthly servicing fee received for the related Distribution Date.
SunTrust will
24
provide Compensating Interest equal to the aggregate of the prepayment
interest shortfalls on the mortgage loans for the related distribution date
resulting from voluntary principal prepayments of the mortgage loans during
the related prepayment period.
Condemnation Proceeds: All awards or settlements in respect of
a Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Corporate Trust Office: With respect to the Securities
Administrator, the principal office of the Securities Administrator is located
at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 and its office for
certificate transfer services is located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services, GSAA Home
Equity Trust 2006-17, or at such other address as the Securities Administrator
may designate from time to time by notice to the Certificateholders. With
respect to the Trustee, the principal office of the Trustee at 0000 Xxxx Xx.
Xxxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000, Attention: Trust Administration - GS0617,
or at such other address as the Trustee may designate from time to time by
notice to the Certificateholders.
Corresponding Class: The Class of interests in one Trust REMIC
created under this Agreement that corresponds to the Class of interests in the
other Trust REMIC or to a Class of Certificates in the manner set out below:
Lower-Tier Upper-Tier Corresponding
Regular Interest Regular Interest Class of Certificates
-------------------------------------------- -------------------------------------- ------------------------------
Class LT-A-1 Class A-1 Class A-1
Class LT-A-2 Class A-2 Class A-2
Class LT-A-3A Class A-3A Class A-3A
Class LT-A-3B Class X-0X Xxxxx X-0X
Xxxxx XX-X-0 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-M-4 Class M-4 Class M-4
Class LT-M-5 Class M-5 Class M-5
Class LT-M-6 Class M-6 Class M-6
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
Class LT-B-3 Class B-3 Class B-3
Countrywide: Countrywide Home Loans, Inc., a New York
corporation, and its successors in interest.
Countrywide Mortgage Loans: The Mortgage Loans acquired by
the Purchaser pursuant to the Countrywide Sale Agreement.
25
Countrywide Sale Agreement: The Master Mortgage Loan Purchase
Agreement, dated as of July 1, 2004, between Countrywide, Countrywide Servicing
and GSMC, as amended by that certain Amendment Reg AB, dated as of January 1,
2006.
Countrywide Servicing: Countrywide Home Loans Servicing LP, a
Texas limited partnership, and its successors in interest.
Countrywide Servicing Agreement: The Servicing Agreement,
dated as of July 1, 2004, as amended by that certain Amendment Reg AB, dated as
of January 1, 2006, between Countrywide, Countrywide Servicing and GSMC, as
modified by the related Assignment Agreements.
Custodial File: With respect to each Mortgage Loan, any
Mortgage Loan Document which is delivered to the applicable Custodian or which
at any time comes into the possession of that Custodian.
Custodians: BNY, Deutsche Bank and U.S. Bank.
Cut-off Date: October 1, 2006.
Cut-off Date Pool Principal Balance: The aggregate Stated
Principal Balance of all Mortgage Loans as of the Cut-off Date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
Stated Principal Balance thereof as of the close of business on the Cut-off Date
(after giving effect to payments of principal due on that date, whether or not
received).
Defaulted Swap Termination Payment: Any Swap Termination
Payment required to be paid by the Supplemental Interest Trust to the Swap
Provider pursuant to the Interest Rate Swap Agreement as a result of an Event of
Default (as defined in the Interest Rate Swap Agreement) with respect to which
the Swap Provider is the defaulting party or a Termination Event (as defined in
the Interest Rate Swap Agreement) (other than Illegality or a Tax Event that is
not a Tax Event Upon Merger (each as defined in the Interest Rate Swap
Agreement)) with respect to which the Swap Provider is the sole Affected Party
(as defined in the Interest Rate Swap Agreement) or with respect to a
termination resulting from a Substitution Event (as defined in the Interest Rate
Swap Agreement).
Definitive Certificates: Any Certificate evidenced by a
Physical Certificate and any Certificate issued in lieu of a Book-Entry
Certificate pursuant to Section 5.02(e).
Deleted Mortgage Loan: A Mortgage Loan which is purchased or
repurchased by any Responsible Party, the Purchaser or the Depositor in
accordance with the terms of any Sale Agreement, any Assignment Agreement or
this Agreement, as applicable, or which is, in the case of a substitution by any
Servicer (if permitted under the applicable Servicing Agreement) or by the
Purchaser pursuant to the Assignment Agreements or this Agreement, replaced or
to be replaced with a substitute mortgage loan.
26
Denomination: With respect to each Certificate, the amount set
forth on the face thereof as the "Initial Certificate Balance of this
Certificate" or the Percentage Interest appearing on the face thereof.
Depositor: GS Mortgage Securities Corp., a Delaware
corporation, and its successors in interest.
Depository: The initial Depository shall be The Depository
Trust Company, the nominee of which is CEDE & Co., as the registered Holder of
the Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code of
the State of New York.
Depository Institution: Any depository institution or trust
company, including the Trustee and the Securities Administrator, that (a) is
incorporated under the laws of the United States of America or any State
thereof, (b) is subject to supervision and examination by federal or state
banking authorities and (c) has outstanding unsecured commercial paper or other
short-term unsecured debt obligations that are rated "P-1" by Moody's and "A-1"
by Standard & Poor's.
Depository Participant: A broker, dealer, bank or other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
Determination Date: With respect to each Distribution Date,
the close of business of the last day of the month preceding the month in which
such Remittance Date occurs, or, with respect to the Goldman Conduit Mortgage
Loans, the 15th calendar day (or if such 15th day is not a Business Day, the
Business Day immediately following such 15th day) of the month of the related
Remittance Date.
Deutsche Bank: Deutsche Bank National Trust Company, a
national banking association, and its successors in interest.
Distribution Account: The separate Eligible Account created by
the Securities Administrator pursuant to Section 3.01(b) in the name of the
Securities Administrator as paying agent for the benefit of the Trustee and the
Certificateholders and designated "Xxxxx Fargo Bank, National Association, as
paying agent, in trust for registered holders of GSAA Home Equity Trust 2006-17,
Asset-Backed Certificates, Series 2006-17." Funds in the Distribution Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement.
Distribution Date: The 25th day of each month or, if such day
is not a Business Day, the immediately succeeding Business Day, commencing in
November 2006.
Document Certification and Exception Report: The report
attached to Exhibit F hereto.
Due Date: The day of the month on which the Monthly Payment
is due on a Mortgage Loan, exclusive of any days of grace.
27
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in which
that Distribution Date occurs and ending on the first day of the calendar month
in which that Distribution Date occurs, except, in the case of the Goldman
Conduit Mortgage Loans, the period commencing on the first day of the month and
ending on the last day of the month preceding the month of the Remittance Date.
XXXXX: The Commission's Electronic Data Gathering, Analysis
and Retrieval system.
Eligible Account: Either (i) an account maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is a subsidiary of a holding company, the
short-term unsecured debt obligations of such holding company) are rated "A-1+"
by Standard & Poor's, "F1" by Fitch and "P-1" by Moody's (or a comparable rating
if another Rating Agency is specified by the Depositor by written notice to the
Servicer) at the time any amounts are held on deposit therein, (ii) a trust
account or accounts maintained with a federal or state chartered depository
institution or trust company acting in its fiduciary capacity or (iii) any other
account acceptable to each Rating Agency. Eligible Accounts may bear interest,
and may include, if otherwise qualified under this definition, accounts
maintained with the Securities Administrator or the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974,
as amended.
ERISA-Qualifying Underwriting: A best efforts or firm
commitment underwriting or private placement that meets the requirements of
Prohibited Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002)
(or any successor thereto), or any substantially similar administrative
exemption granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the
Preliminary Statement.
Event of Default: As defined in the applicable Servicing
Agreement.
Excess Overcollateralized Amount: With respect to any
Distribution Date, the excess, if any, of (a) the Overcollateralized Amount on
such Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account
created and maintained by the Securities Administrator pursuant to Sections
3.01(a) in the name of the Securities Administrator as paying agent for the
benefit of the Regular Certificateholders and designated "Xxxxx Fargo Bank,
National Association, as paying agent, in trust for registered holders of GSAA
Home Equity Trust 2006-17, Asset-Backed Certificates, Series 2006-17." Funds in
the Excess Reserve Fund Account shall be held in trust for the Regular
Certificateholders for the uses and purposes set forth in this Agreement.
Amounts on deposit in the Excess Reserve Fund Account shall not be invested.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
28
Exchange Act Filing Obligation: The obligations of the Master
Servicer under Section 9.04 and Article XIII (except Section 13.07) with respect
to notice and information to be provided to the Depositor.
Exchange Act Reports: Any reports on Form 10-D, Form 8-K and
Form 10-K required to be filed by the Depositor with respect to the Trust Fund
under the Exchange Act.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate
equal to the sum of the Servicing Fee Rate, the Administrative Fee Rate and, if
set forth on the Mortgage Loan Schedule, the applicable Primary Mortgage
Insurance Policy premium rate.
Expense Fees: As to each Mortgage Loan, the fees calculated
by reference to the Expense Fee Rate.
Extra Principal Distribution Amount: As of any Distribution
Date, the lesser of (x) the related Total Monthly Excess Spread for that
Distribution Date and (y) the related Overcollateralization Deficiency for such
Distribution Date.
Fair Market Value Excess: As defined in Section 11.01.
Xxxxxx Xxx: The Federal National Mortgage Association, and
its successors in interest.
Final Scheduled Distribution Date: The Final Scheduled
Distribution Date for each Class of Certificates is the Distribution Date
occurring in October 2036.
Fitch: Fitch, Inc.
Form 8-K Disclosure Information: As defined in Section
13.02.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, a
corporate instrumentality of the United States created and existing under Title
III of the Emergency Home Finance Act of 1970, as amended, and its successors in
interest.
Goldman Conduit: Xxxxxxx Xxxxx Residential Mortgage Conduit
Program.
Goldman Conduit Mortgage Loans: The Mortgage Loans acquired
by the Purchaser pursuant to the applicable Goldman Conduit Sale Agreements.
Goldman Conduit Sale Agreements: The Master Loan Purchase
Agreements, between various mortgage loan sellers and GSMC, dated as of their
respective dates, as modified by the related Assignment Agreements.
GreenPoint: GreenPoint Mortgage Funding, Inc., a New York
corporation, and its successors in interest.
GreenPoint Mortgage Loans: The Mortgage Loans acquired by
the Purchaser pursuant to the GreenPoint Sale Agreement.
29
GreenPoint Sale Agreement: Amended and Restated Master
Mortgage Loan Purchase Agreement, dated as of November 1, 2005, between
GreenPoint and GSMC.
GreenPoint Servicing Agreement: Servicing Agreement, dated as
of November 1, 2005, between GreenPoint and GSMC, as modified by the related
Assignment Agreements.
IndyMac: IndyMac Bank, F.S.B., a federal savings bank, and its
successors in interest.
IndyMac Mortgage Loans: The Mortgage Loans acquired by the
Purchaser pursuant to the IndyMac Sale Agreement.
IndyMac Sale Agreement: Second Amended and Restated Master
Mortgage Loan Purchase Agreement, dated as of March 1, 2006, between IndyMac and
GSMC, as amended by that certain Amendment No. 1, dated as of June 1, 2006.
IndyMac Servicing Agreement: Amended and Restated Servicing
Agreement, dated as of November 1, 2005, between IndyMac and GSMC.
Insurance Proceeds: With respect to each Mortgage Loan,
proceeds of insurance policies insuring the Mortgage Loan or the related
Mortgaged Property.
Interest Accrual Period: With respect to any Distribution
Date, with respect to the LIBOR Certificates, the period commencing on the
immediately preceding Distribution Date (or commencing on the Closing Date in
the case of the first Distribution Date) and ending on the day immediately
preceding the current Distribution Date the calendar month immediately preceding
the month in which such Distribution Date occurs. For purposes of computing
interest accruals on each Class of LIBOR Certificates, each Interest Accrual
Period has the actual number of days in such period and each year is assumed to
have 360 days.
Interest Rate Swap Agreement: The interest rate swap
agreement, dated as of October 13, 2006, between the GSAA Home Equity Trust
2006-17 and the Swap Provider and assigned to the Supplemental Interest Trust or
any other swap agreement (including any related schedules) assigned to the
Supplemental Interest Trust.
Interest Remittance Amount: With respect to any Distribution
Date, that portion of Available Funds attributable to interest relating to the
Mortgage Loans and any Net Swap Receipt Amount attributable for such
Distribution Date, net of any Net Swap Payment Amount made with respect to such
Distribution Date, and that portion of Available Funds attributable to monies
received under the operation of the Primary Mortgage Insurance Policy, if any,
for such Distribution Date.
Investment Account: As defined in Section 3.02(a).
Item 1119 Party: The Depositor, the Master Servicer, the
Trustee, any Servicer, any subservicer, any originator identified in the
Prospectus Supplement and any Swap Provider.
30
LIBOR: With respect to any Interest Accrual Period for the
LIBOR Certificates, the rate determined by the Securities Administrator on the
related LIBOR Determination Date on the basis of the offered rate for one month
U.S. dollar deposits as such rate appears on Telerate Page 3750 as of 11:00 a.m.
(London time) on such date; provided, that if such rate does not appear on
Telerate Page 3750, the rate for such date will be determined on the basis of
the rates at which one-month U.S. dollar deposits are offered by the Reference
Banks at approximately 11:00 a.m. (London time) on such date to prime banks in
the London interbank market. In such event, the Securities Administrator shall
request the principal London office of each of the Reference Banks to provide a
quotation of its rate. If at least two (2) such quotations are provided, the
rate for that date will be the arithmetic mean of the quotations (rounded
upwards if necessary to the nearest whole multiple of 1/16%). If fewer than two
(2) quotations are provided as requested, the rate for that date will be the
arithmetic mean of the rates quoted by major banks in New York City, selected by
the Securities Administrator (after consultation with the Depositor), at
approximately 11:00 a.m. (New York City time) on such date for one-month U.S.
dollar deposits of leading European banks. The establishment of LIBOR by the
Securities Administrator and the Securities Administrator's subsequent
calculations based thereon, in the absence of manifest error, shall be final and
binding. Except as otherwise set forth herein, absent manifest error, the
Securities Administrator may conclusively rely on quotations of LIBOR as such
quotations appear on Telerate Screen Page 3750.
LIBOR Certificates: As specified in the Preliminary
Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period for the LIBOR Certificates, the second London Business Day preceding the
commencement of such Interest Accrual Period.
Liquidated Mortgage Loan: With respect to any Distribution
Date, a defaulted Mortgage Loan (including any REO Property) which was
liquidated in the Principal Prepayment Period preceding the month of such
Distribution Date and as to which the applicable Servicer has certified that it
has received all amounts it expects to receive in connection with the
liquidation of such Mortgage Loan including the final disposition of an REO
Property.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the
sale of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan, including any Subsequent Recoveries.
London Business Day: Any day on which dealings in deposits of
United States dollars are transacted in the London interbank market.
Lower-Tier Principal Amount: As described in the Preliminary
Statement.
Lower-Tier Regular Interest: As described in the Preliminary
Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
31
Majority Class X Certificateholder: The Holder or Holders of
a majority of the Percentage Interests in the Class X Certificates.
Master Servicer: Xxxxx Fargo, and if a successor master
servicer is appointed hereunder, such successor.
Master Servicer Event of Default: As defined in Section 9.04.
Master Servicer Float Period: As to any Distribution Date and
each Mortgage Loan, the period commencing on the sixth calendar day immediately
preceding such Distribution Date and ending on such Distribution Date.
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: As defined in the applicable Servicing
Agreement.
Monthly Payment: The scheduled monthly payment of principal
and interest on a Mortgage Loan.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.02.
Moody's: Xxxxx'x Investors Service, Inc. If Xxxxx'x is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 12.05(b) the address for notices to Moody's shall be Xxxxx'x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Pass-Through Group, or such other address as Moody's may
hereafter furnish to the Depositor and the Servicer.
Mortgage: The mortgage, deed of trust or other instrument
identified on the Mortgage Loan Schedule as securing a Mortgage Note.
Mortgage File: The items pertaining to a particular Mortgage
Loan contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on
a Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the
subject of a Sale Agreement and a Servicing Agreement, each Mortgage Loan
originally sold and subject to any Sale Agreement being identified on the
Mortgage Loan Schedule, which Mortgage Loan includes without limitation the
Mortgage File, the Servicing File, the Monthly Payments, Principal Prepayments,
Prepayment Premiums, Liquidation Proceeds, Condemnation Proceeds,
32
Insurance Proceeds, REO Disposition proceeds and all other rights, benefits,
proceeds and obligations arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: The mortgage loan documents
pertaining to each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed
hereto as Schedule I (which shall be delivered to the Custodians in an
electronic format acceptable to the Custodians), such schedule setting forth the
following information with respect to each Mortgage Loan: (1) Responsible
Party's Mortgage Loan number; (2) the address, city, state and zip code of the
Mortgaged Property; (3) a code indicating whether the Mortgagor is
self-employed; (4) a code indicating whether the Mortgaged Property is
owner-occupied, investment property or a second home; (5) a code indicating
whether the Mortgaged Property is a single family residence, two family
residence, three-family residence, four family residence, condominium,
manufactured housing or planned unit development; (6) the purpose of the
Mortgage Loan; (7) the type of Mortgage Loan; (8) the Mortgage Interest Rate at
origination; (9) the current Mortgage Interest Rate; (10) the name of the
applicable Servicer; (11) the applicable Servicing Fee Rate; (12) the current
Monthly Payment; (13) the original term to maturity; (14) the remaining term to
maturity; (15) the principal balance of the Mortgage Loan as of the Cut-off Date
after deduction of payments of principal due on or before the Cut-off Date
whether or not collected; (16) the LTV at origination and if the Mortgage Loan
has a second lien, combined LTV at origination; (17) the actual principal
balance of the Mortgage Loan as of the Cut-off Date; (18) social security number
of the Mortgagor; (19) a code indicating whether the Mortgage Loan had a second
lien at origination; (20) if the Mortgage Loan has a second lien, combined loan
balance as of the Cut-off Date; (21) a code indicating whether the Mortgaged
Property is a leasehold estate; (22) the due date of the Mortgage Loan; (23)
whether the Mortgage Loan is insured by a Mortgage Insurance Policy and the name
of the insurer; (24) the certificate number of the Mortgage Insurance Policy;
(25) if applicable, the amount of coverage of the Primary Mortgage Insurance
Policy, if it is a lender-paid Primary Mortgage Insurance Policy or a Primary
Mortgage Insurance Policy paid for on behalf of the Trust, the premium rate;
(26) if applicable, the premium tax information for each mortgage loan covered
by the Primary Mortgage Insurance Policy; (27) the type of appraisal; (28) a
code indicating whether the Mortgage Loan is a MERS Loan; (29) documentation
type (including asset and income type); (30) first payment date; (31) the
schedule of the payment delinquencies in the prior 12 months; (32) FICO score;
(33) the Mortgagor's name; (34) the stated maturity date; (35) the original
principal amount of the Mortgage Loan; and (36) the name of the applicable
Custodian.
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the
amount remaining for distribution pursuant to subsection 4.01(a)(iii) (before
giving effect to distributions pursuant to such subsection).
33
Net Prepayment Interest Shortfall: For any Distribution Date,
the amount by which the sum of the Prepayment Interest Shortfalls exceeds the
sum of the Compensating Interest payments made on such Distribution Date.
Net Swap Payment Amount: With respect to any Distribution
Date, the Fixed Amount (as defined in the Interest Rate Swap Agreement) payable
by the Supplemental Interest Trust to the Swap Provider, pursuant to the
applicable clauses of the Priorities of Distribution, on the related Fixed Rate
Payer Payment Date (as defined in the Interest Rate Swap Agreement).
Net Swap Receipt Amount: With respect to any Distribution
Date, the Floating Amount (as defined in the Interest Rate Swap Agreement)
payable by the Swap Provider to the Supplemental Interest Trust on the related
Floating Rate Payer Payment Date (as defined in the Interest Rate Swap
Agreement).
NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise
backed by some or all of the Class P and Class X Certificates.
NIM Trustee: The trustee for the NIM Securities.
Non Permitted Transferee: As defined in Section 8.12(e).
Nonrecoverable Monthly Advance: Any Monthly Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property that,
in the good faith business judgment of the Servicer (in accordance with the
related Servicing Standard set forth in the related Servicing Agreement), the
Master Servicer or any successor Master Servicer including the Trustee, as
applicable, will not or, in the case of a proposed Monthly Advance, would not be
ultimately recoverable from related late payments, Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds on such Mortgage Loan or REO
Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advance
previously made or proposed to be made in respect of a Mortgage Loan or REO
Property, which, in the good faith business judgment of the Servicer (in
accordance with the related Servicing Standard set forth in the related
Servicing Agreement), the Master Servicer or any successor Master Servicer
including the Trustee, as applicable, will not or, in the case of a proposed
Servicing Advance, would not, be ultimately recoverable from related Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided
pursuant to Section 11.02 to the effect that final distribution on any of the
Certificates shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary
Statement.
Officer's Certificate: A certificate signed by the Chairman of
the Board or the Vice Chairman of the Board or the President or a Vice President
or an Assistant Vice President
34
and by the Treasurer or the Secretary or one of the Assistant Treasurers or
Assistant Secretaries of any Servicer or any Responsible Party, and delivered
to the Trustee and the Securities Administrator, as required by any Servicing
Agreement or Sale Agreement or, in the case of any other Person, signed by an
authorized officer of such Person.
Opinion of Counsel: A written opinion of counsel, who may be
in house counsel for the applicable Servicer, reasonably acceptable to the
Trustee and/or the Securities Administrator, as applicable (and/or such other
Persons as may be set forth herein); provided, that any Opinion of Counsel
relating to (a) qualification of any Trust REMIC or (b) compliance with the
REMIC Provisions, must be (unless otherwise stated in such Opinion of Counsel)
an opinion of counsel who (i) is in fact independent of the applicable Servicer
or the Master Servicer of the Mortgage Loans, (ii) does not have any material
direct or indirect financial interest in the applicable Servicer or the Master
Servicer of the Mortgage Loans or in an affiliate of either and (iii) is not
connected with the applicable Servicer or the Master Servicer of the Mortgage
Loans as an officer, employee, director or person performing similar functions.
Optional Termination Date: The Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day of
the related Due Period, is equal to 10.00% or less of the Cut-off Date Pool
Principal Balance.
Outstanding: With respect to the Certificates as of any date
of determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Securities Administrator
or delivered to the Securities Administrator for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Securities
Administrator pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan
with a Stated Principal Balance greater than zero which was not the subject of a
Principal Prepayment in Full prior to such Due Date and which did not become a
Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the
excess, if any, of (a) the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date over (b) the aggregate of the Class Certificate
Balances of the LIBOR Certificates as of such Distribution Date (after giving
effect to the payment of the Principal Remittance Amount on such Certificates on
such Distribution Date).
Overcollateralization Deficiency: With respect to any
Distribution Date, the excess, if any, of (a) the Specified Overcollateralized
Amount applicable to such Distribution Date over (b) the Overcollateralized
Amount applicable to such Distribution Date.
Overcollateralization Floor: With respect to any Distribution
Date, 0.50% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date.
35
Overcollateralization Reduction Amount: With respect to any
Distribution Date, an amount equal to the lesser of (a) the Excess
Overcollateralized Amount and (b) the Net Monthly Excess Cash Flow.
Ownership Interest: As to any Residual Certificate, any
ownership interest in such Certificate including any interest in such
Certificate as the Holder thereof and any other interest therein, whether direct
or indirect, legal or beneficial.
Par Value: an amount equal to the greater of (a) the sum of
(1) 100% of the unpaid principal balance of the Mortgage Loans (other than
Mortgage Loans related to REO Properties), (2) interest accrued and unpaid on
the Mortgage Loans, (3) any xxxxxxxxxxxx X&X Advances, fees and expenses of the
Master Servicer, the Securities Administrator and the Trustee, (4) any expenses
incurred during the exercise of the Auction Call and (5) with respect to any REO
Property, the lesser of (x) the appraised value of each REO Property, as
determined by the higher of two appraisals completed by two independent
appraisers selected by the Master Servicer or its designee, and (y) the unpaid
principal balance of each Mortgage Loan related to any REO Property, and (b) the
sum of (1) the aggregate unpaid Class Certificate Balance of each class of
certificates then outstanding, (2) interest accrued and unpaid on the
certificates, (3) any xxxxxxxxxxxx X&X Advances, fees and expenses of the Master
Servicer, the Securities Administrator and the Trustee, (4) any Swap Termination
Payment other than a Defaulted Swap Termination Payment owed to the Swap
Provider and (5) with respect to any REO Property, the lesser of (x) the
appraised value of each REO Property, as determined by the higher of two
appraisals completed by two independent appraisers selected by the Master
Servicer or its designee, and (y) the unpaid principal balance of each Mortgage
Loan related to any REO Property, and (b) the sum of (1) the aggregate unpaid
Class Certificate Balance of each class of certificates then outstanding, (2)
interest accrued and unpaid on the certificates, (3) any xxxxxxxxxxxx X&X
Advances, fees and expenses of the Master Servicer, the Securities Administrator
and the Trustee and (4) any Swap Termination Payment other than a Defaulted Swap
Termination Payment owed to the Swap Provider.
Pass-Through Rate: For each Class of Certificates and each
Lower-Tier Regular Interest, the per annum rate set forth or calculated in the
manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made on the related
Class, such percentage interest being set forth on the face thereof or equal to
the percentage obtained by dividing the Denomination of such Certificate by the
aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: Any one or more of the following
obligations or securities acquired at a purchase price of not greater than par,
regardless of whether issued by the Servicer, the Trustee, the Securities
Administrator or any of their respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any agency
or instrumentality thereof, provided such obligations are backed by the
full faith and credit of the United States;
36
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than ninety (90) days and, in the case of bankers' acceptances,
shall in no event have an original maturity of more than 365 days or a
remaining maturity of more than thirty (30) days) denominated in United
States dollars and issued by any Depository Institution and rated F1+
by Fitch, P-1 by Xxxxx'x and A-1+ by S&P;
(iii) repurchase obligations with respect to any security described in
clause (i) above entered into with a Depository Institution (acting as
principal);
(iv) securities bearing interest or sold at a discount that are issued
by any corporation incorporated under the laws of the United States of
America or any state thereof and that are rated by each Rating Agency
that rates such securities in its highest long-term unsecured rating
categories at the time of such investment or contractual commitment
providing for such investment;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than thirty (30) days after the date of
acquisition thereof) that is rated by each Rating Agency that rates
such securities in its highest short-term unsecured debt rating
available at the time of such investment;
(vi) units of money market funds, including money market funds advised
by the Depositor, the Securities Administrator or the Trustee or an
Affiliate thereof, that have been rated "Aaa" by Xxxxx'x, "AAAm" or
"AAAm-G" by Standard & Poor's and, if rated by Fitch, at least "AA" by
Fitch; and
(vii) if previously confirmed in writing to the Securities
Administrator, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to the
Rating Agencies as a permitted investment of funds backing "Aaa" or
"AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence either
the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying obligations.
Permitted Transferee: Any Person other than (i) the United
States, any State or political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization (except certain farmers' cooperatives described
in Section 521 of the Code) which is exempt from tax imposed by Chapter 1 of the
Code (including the tax imposed by Section 511 of the Code on unrelated business
taxable income) on any excess inclusions (as defined in Section 860E(c)(1) of
the Code) with respect to any Residual Certificate, (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code, (v) a
Person that is not a U.S. Person or a U.S. Person with respect to whom income
37
from a Residual Certificate is attributable to a foreign permanent establishment
or fixed base (within the meaning of an applicable income tax treaty) of such
Person or any other U.S. Person, (vi) an "electing large partnership" within the
meaning of Section 775 of the Code and (vii) any other Person so designated by
the Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Residual Certificate to such Person may cause any Trust REMIC to
fail to qualify as a REMIC at any time that the Certificates are outstanding.
The terms "United States," "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Xxxxxxx Mac, a
majority of its board of directors is not selected by such government unit.
Person: Any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary
Statement.
P&I Advances: Advances made by the servicers or the Master
Servicer (including the Trustee as successor master servicer and any other
successor master servicer) with respect to delinquent payments of interest and
principal on the mortgage loans, less the servicing fee or the master servicing
fee, as applicable.
Pool Stated Principal Balance: As to any Distribution Date,
the aggregate of the Stated Principal Balances of the Mortgage Loans for such
Distribution Date that were Outstanding Mortgage Loans on the Due Date in the
related Due Period.
Prepayment Interest Shortfall: With respect to any Remittance
Date, the sum of, for each Mortgage Loan that was during the related Principal
Prepayment Period the subject of a Principal Prepayment that was applied by the
Servicer to reduce the outstanding principal balance of such Mortgage Loan on a
date preceding the Due Date in the succeeding Principal Prepayment Period, an
amount equal to the product of (a) the Mortgage Interest Rate net of the
applicable Servicing Fee Rate for such Mortgage Loan, (b) the amount of the
Principal Prepayment for such Mortgage Loan, (c) 1/360 and (d) the number of
days commencing on the date on which such Principal Prepayment was applied and
ending on the last day of the related Principal Prepayment Period.
Prepayment Premium: Any prepayment premium, penalty or charge,
if any, required under the terms of the related Mortgage Note to be paid in
connection with a Principal Prepayment, to the extent permitted by law.
Primary Mortgage Insurance Policy: Not applicable for this
transaction.
Principal Certificates: As specified in the Preliminary
Statement.
Principal Distribution Amount: For any Distribution Date,
the sum of (i) the Basic Principal Distribution Amount for such Distribution
Date and (ii) the Extra Principal Distribution Amount for such Distribution
Date.
38
Principal Prepayment: Any full or partial payment or other
recovery of principal on a Mortgage Loan (including upon liquidation of a
Mortgage Loan) which is received in advance of its scheduled Due Date, including
any Prepayment Premium, and which is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by
a Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Prepayment Period: With respect to any Distribution
Date, the calendar month preceding the month in which that Distribution Date
occurs.
Principal Remittance Amount: With respect to any Distribution
Date and the Mortgage Loans, the amount equal to the sum of the following
amounts (without duplication): (i) all scheduled payments of principal due on
the Due Date on such Mortgage Loans in the related Due Period and received on or
prior to the related Determination Date, together with any Monthly Advances in
respect thereof; (ii) all Condemnation Proceeds, Insurance Proceeds and
Liquidation Proceeds allocable to principal and received during the related
Principal Prepayment Period; (iii) all Principal Prepayments allocable to
principal and received during the related Principal Prepayment Period; (iv) all
amounts received with respect to such Distribution Date representing the portion
of the purchase price allocable to principal in connection with a purchase or
repurchase of a Deleted Mortgage Loan; (v) principal portion of all amounts
received with respect to such Distribution Date as a Substitution Adjustment
Amount and received in connection with the substitution of a Mortgage Loan and
(vi) the allocable portion of the proceeds received with respect to the
termination of the Trust Fund pursuant to clause (a) of Section 11.01 (to the
extent such proceeds relate to principal).
Private Certificates: As specified in the Preliminary
Statement.
Prospectus Supplement: The Prospectus Supplement, dated
October 26, 2006, relating to the Offered Certificates.
PTCE: Prohibited Transaction Class Exemption, issued by the
U.S. Department of Labor.
PUD: A planned unit development.
Purchaser: Xxxxxxx Sachs Mortgage Company, a New York
limited partnership, and its successors in interest.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary Statement. If such organization or a successor is no longer in
existence, "Rating Agency" shall be such nationally recognized statistical
rating organization, or other comparable Person, as is designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Securities Administrator. References herein to a given rating or rating category
of a Rating Agency shall mean such rating category without giving effect to any
modifiers. For purposes of Section 12.05(b), the addresses for notices to each
Rating Agency shall be the address specified
39
therefor in the definition corresponding to the name of such Rating Agency, or
such other address as either such Rating Agency may hereafter furnish to the
Depositor and the Servicer.
Realized Losses: With respect to any date of determination and
any Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid
principal balance of such Liquidated Mortgage Loan together with accrued and
unpaid interest thereon exceeds (b) the Liquidation Proceeds with respect
thereto net of the expenses incurred by the Servicer in connection with the
liquidation of such Liquidated Mortgage Loan and net of any amount of
unreimbursed Servicing Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close
of business on the last Business Day of the related Interest Accrual Period;
provided, however, that for any Definitive Certificate issued pursuant to
Section 5.02(e), the Record Date shall be the close of business on the last
Business Day of the month immediately preceding the month in which the related
Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary
Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Relief Act Interest Shortfall: With respect to any
Distribution Date and any Mortgage Loan, any reduction in the amount of interest
collectible on such Mortgage Loan for the most recently ended Due Period as a
result of the application of the Servicemembers' Civil Relief Act of 1940 or any
similar state statutes.
REMIC: A "real estate mortgage investment conduit" within
the meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be in
effect from time to time as well as provisions of applicable state laws.
Remittance Date: With respect to any Distribution Date, the
18th day (or if such 18th day is not a Business Day, the first Business Day
immediately preceding such 18th day) of the month in which such Distribution
Date occurs.
REO Disposition: The final sale by the Servicer of any REO
Property.
40
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reportable Event: As defined in Section 13.02.
Reporting Party: The Depositor, any Originator, the Master
Servicer, any Servicer, any originator defined in the Prospectus Supplement, any
swap or corridor contract counterparty, any credit enhancement provider
described herein and any other material transaction party (excluding the Trustee
and the Custodians) as may be mutually agreed between the Depositor and the
Master Servicer from time to time for the purpose of complying with the
requirements of the Commission.
Reporting Servicer: As defined in Section 13.04.
Reporting Subcontractor: With respect to the Master Servicer
or the Securities Administrator, any Subcontractor determined by such Person
pursuant to Section 11.08(b) to be "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB. References to a Reporting
Subcontractor shall refer only to the Subcontractor of such Person and shall not
refer to Subcontractors generally.
Residual Certificates: As specified in the Preliminary
Statement.
Responsible Officer: When used with respect to the Securities
Administrator or the Master Servicer, any vice president, any assistant vice
president, any assistant secretary, any assistant treasurer, any associate or
any other officer of the Securities Administrator or the Master Servicer,
customarily performing functions similar to those performed by any of the above
designated officers who at such time shall be officers to whom, with respect to
a particular matter, such matter is referred because of such officer's knowledge
of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement. When used with respect
to the Trustee, any officer of the Trustee having direct responsibility for the
administration of this transaction, or to whom corporate trust matters are
referred because of that officer's knowledge of and familiarity with the
particular subject.
Responsible Party: Countrywide, GreenPoint, IndyMac and
SunTrust each in its capacity as seller under the applicable Sale Agreement.
With respect to the Goldman Conduit Mortgage Loans, the Purchaser.
Rule 144A: Rule 144A under the Securities Act.
Rule 144A Letter: As defined in Section 5.02(b).
Sale Agreement: Each of the Countrywide Sale Agreement, the
GreenPoint Sale Agreement, the SunTrust Sale Agreement, the IndyMac Sale
Agreement and the Goldman Conduit Sale Agreement.
Xxxxxxxx-Xxxxx Certification: As defined in Section 13.06.
Securities Act: The Securities Act of 1933, as amended.
41
Securities Administrator: Xxxxx Fargo, and if a successor
securities administrator is appointed hereunder, such successor.
Senior Enhancement Percentage: With respect to any
Distribution Date, the percentage obtained by dividing (x) the sum of (i) the
aggregate Class Certificate Balance of the Subordinated Certificates and (ii)
the Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans as of the
first day of the month in which such Distribution Date occurs.
Senior Specified Enhancement Percentage: As of any date of
determination, 14.10%.
Sequential Trigger Event: An event which occurs, if (x) on any
Distribution Date before the 37th Distribution Date the aggregate amount of
Realized Losses incurred since the cut-off date through the last day of the
related Prepayment Period divided by the aggregate scheduled principal balance
of the Mortgage Loans as of the cut-off date exceeds 0.600%, or (y) on or after
the 37th Distribution Date, a Trigger Event is in effect.
Servicer: Each of Avelo, Countrywide Servicing, GreenPoint,
IndyMac and SunTrust, in its capacity as servicer under the related Servicing
Agreement, or any successor servicer appointed pursuant to such Servicing
Agreement.
Servicing Advances: As defined in the related Servicing
Agreement.
Servicing Agreement: Each of the Avelo Servicing Agreement,
the Countrywide Servicing Agreement, the GreenPoint Servicing Agreement, the
IndyMac Servicing Agreement and the SunTrust Servicing Agreement.
Servicing Criteria: The "servicing criteria" set forth in
Item 1122(d) of Regulation AB, as the same may be amended from time to time.
Servicing Fee: As defined in the related Servicing
Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, the
per annum rate for such Mortgage Loan specified on the Mortgage Loan Schedule.
Servicing File: As defined in the applicable Servicing
Agreement.
Servicing Function Participant: Any Subservicer, Subcontractor
or any other Person, other than each Servicer, the Master Servicer, the Trustee,
the Securities Administrator and any Custodian, that is performing activities
addressed by the Servicing Criteria.
Similar Law: As defined in Section 5.02(b).
Specified Overcollateralized Amount: Prior to the Stepdown
Date, an amount equal to 0.60% of the Cut-off Date Pool Principal Balance. On
and after the Stepdown Date, an amount equal to 1.20% of the aggregate Stated
Principal Balance of the Mortgage Loans for such
42
Distribution Date, subject, until the Class Certificate Balance of each Class
of LIBOR Certificates has been reduced to zero, to a minimum amount equal to
the Overcollateralization Floor; provided, however, that if, on any
Distribution Date, a Trigger Event has occurred, the Specified
Overcollateralized Amount shall not be reduced to the applicable percentage of
the then current aggregate Stated Principal Balance of the Mortgage Loans but
instead will remain the same as the prior period's Specified
Overcollateralized Amount until the Distribution Date on which a Trigger Event
is no longer occurring. When the Class Certificate Balance of each Class of
LIBOR Certificates has been reduced to zero, the Specified Overcollateralized
Amount will thereafter be zero.
Standard & Poor's or S&P: Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc. If Standard & Poor's is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
12.05(b) the address for notices to Standard & Poor's shall be Standard &
Poor's, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential
Mortgage Surveillance Group - GSAA Home Equity Trust 2006-17, or such other
address as Standard & Poor's may hereafter furnish to the Depositor and the
Servicer.
Startup Day: The Closing Date.
Stated Principal Balance: As to each Mortgage Loan and as of
any Determination Date, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date (whether or not received), minus (ii) all amounts previously remitted to
the Securities Administrator with respect to the related Mortgage Loan
representing payments or recoveries of principal including advances in respect
of scheduled payments of principal. For purposes of any Distribution Date, the
Stated Principal Balance of any Mortgage Loan will give effect to any scheduled
payments of principal received or advanced prior to the related Remittance Date
and any unscheduled principal payments and other unscheduled principal
collections received during the related Principal Prepayment Period, and the
Stated Principal Balance of any Mortgage Loan that has prepaid in full or has
become a Liquidated Mortgage Loan during the related Principal Prepayment Period
shall be zero.
Step 1 Assignment Agreement: Each of the (i) Assignment,
Assumption and Recognition Agreement, dated as of October 30, 2006, between the
Purchaser, Avelo and the Depositor; (ii) Assignment, Assumption and Recognition
Agreement, dated as of October 30, 2006, between the Purchaser, Countrywide and
the Depositor; (iii) Assignment, Assumption and Recognition Agreement, dated as
of October 30, 2006, between the Purchaser, GreenPoint and the Depositor; (iv)
Assignment, Assumption and Recognition Agreement, dated as of October 30, 2006,
between the Purchaser, IndyMac and the Depositor and (v) Assignment, Assumption
and Recognition Agreement, dated as of October 30, 2006, between the Purchaser,
SunTrust and the Depositor.
Step 2 Assignment Agreement: Each of the (i) Assignment,
Assumption and Recognition Agreement, dated as of October 30, 2006, between the
Depositor, the Master Servicer, the Trustee and Avelo; (ii) Assignment,
Assumption and Recognition Agreement, dated as of October 30, 2006, between the
Depositor, the Master Servicer, the Trustee, Countrywide and Countrywide
Servicing; (iii) Assignment, Assumption and Recognition Agreement, dated as of
October 30, 2006, between the Depositor, the Master Servicer, the Trustee and
GreenPoint
43
and (iv) Assignment, Assumption and Recognition Agreement, dated October 30,
2006, between the Depositor, the Master Servicer, the Trustee and IndyMac and
(v) Assignment, Assumption and Recognition Agreement, dated as of October 30,
between the Depositor, the Master Servicer, the Trustee and SunTrust.
Stepdown Date: The earlier to occur of (a) the date on which
the aggregate Class Certificate Balance of the Class A Certificates has been
reduced to zero and (b) the later to occur of (i) the Distribution Date in
November 2009 and (ii) the first Distribution Date on which the Senior
Enhancement Percentage is greater than or equal to the Senior Specified
Enhancement Percentage.
Subcontractor: Any vendor, subcontractor or other Person that
is not responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgage-backed securities market) of Mortgage
Loans but performs one or more discrete functions identified in Item 1122(d) of
Regulation AB with respect to Mortgage Loans under the direction or authority of
the Master Servicer, any Servicer, any subservicer or the Securities
Administrator, as the case may be.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amounts received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated Mortgage Loan.
Substitution Adjustment Amount: With respect to any Servicing
Agreement or Sale Agreement, as applicable, in which substitution is permitted,
or with respect to a Mortgage Loan substituted by the Purchaser, an amount of
cash received from the applicable Servicer or the Purchaser, as applicable, in
connection with a substitution for a Deleted Mortgage Loan.
SunTrust: SunTrust Mortgage, Inc., a Virginia corporation,
and its successor in interest.
SunTrust Mortgage Loans: The Mortgage Loans acquired by the
Purchaser from SunTrust pursuant to the SunTrust Sale Agreement.
SunTrust Sale and Servicing Agreement: Amended and Restated
Flow Seller's Warranties and Servicing Agreement, dated as of December 1,
2005, as amended by Amendment No.1 thereto, dated as of July 1, 2006, between
SunTrust Mortgage, Inc. and Xxxxxxx Xxxxx Mortgage Company.
Supplemental Interest Trust: The corpus of a trust created
pursuant to Section 4.05 of this Agreement, consisting of the Interest Rate Swap
Agreement, subject to the obligation to pay amounts specified in Section 4.05.
Swap Provider: Xxxxxxx Sachs Mitsui Marine Derivative
Products, L.P., a Delaware limited partnership, and its successors in
interest, and any successor swap provider under any replacement Interest Rate
Swap Agreement.
44
Swap Termination Payment: Any payment payable by the
Supplemental Interest Trust or the Swap Provider upon termination of the
Interest Rate Swap Agreement as a result of an Event of Default (as defined in
the Interest Rate Swap Agreement) or a Termination Event (as defined in the
Interest Rate Swap Agreement).
Tax Matters Person: The Holder of the Class R, Class RC and
Class RX Certificates is designated as "tax matters person" of the Lower-Tier
REMIC, Middle-Tier REMIC and the Upper-Tier REMIC, respectively, in the manner
provided under Treasury Regulations Section 1.806F-4(d) and Treasury Regulations
Section 301.6234(a)(7)-1.
Telerate Page 3750: The display page currently so designated
on the Bridge Telerate Service (or such other page as may replace that page on
that service for displaying comparable rates or prices).
Termination Price: As defined in Section 11.01.
Total Monthly Excess Spread: As to any Distribution Date, an
amount equal to the excess if any, of (i) the interest collected (prior to the
related Remittance Date) or advanced on the Mortgage Loans for Due Dates during
the related Due Period (net of Expense Fees) plus the Net Swap Receipt Amount
and minus any Net Swap Payment Amount over (ii) the sum of the interest payable
to the LIBOR Certificates on such Distribution Date pursuant to Section
4.01(a)(i).
Transaction Documents: This Agreement, the Interest Rate Swap
Agreement, the Assignment Agreements and any other document or agreement entered
into in connection with the Trust Fund, the Certificates or the Mortgage Loans.
Transfer: Any direct or indirect transfer or sale of any
Ownership Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c)(ii).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a
Trigger Event exists if (i) on such Distribution Date the quotient (expressed as
a percentage) of (x) the rolling three month average of the aggregate unpaid
principal balance of 60+ Day Delinquent Mortgage Loans, and (y) the aggregate
unpaid principal balance of the Mortgage Loans as of the last day of the related
Due Period equals or exceeds 40.00% of the Senior Enhancement Percentage as of
the last day of the prior Due Period or (ii) the quotient (expressed as a
percentage) of (x) the aggregate amount of Realized Losses incurred since the
Cut-off Date through the last day of the related Principal Prepayment Period
divided by (y) the Cut-off Date Pool Principal Balance exceeds the applicable
percentages set forth below with respect to such Distribution Date:
Distribution Date Occurring In Loss Percentage
------------------------------ ---------------
November 2008 - October 2009 0.250% for the first month, plus an additional 1/12th
of 0.350% for each month thereafter
45
(e.g., approximately 0.279% in December 2008)
November 2009 - October 2010 0.600% for the first month, plus an additional 1/12th
of 0.400% for each month thereafter (e.g.,
approximately 0.633% in December 2009)
November 2010 - October 2011 1.000% for the first month, plus an additional 1/12th
of 0.450% for each month thereafter (e.g.,
approximately 1.038% in December 2010)
November 2011 - October 2012 1.450% for the first month, plus an additional 1/12th
of 0.250% for each month thereafter (e.g.,
approximately 1.471% in December 2011)
November 2012 - October 2013 1.700% for the first month, plus an additional 1/12th
of 0.050% for each month thereafter (e.g.,
approximately 1.704% in December 2012)
November 2013 and thereafter 1.750%
Trust: The express trust created hereunder in Section
2.01(c).
Trust Fund: The corpus of the trust created hereunder
consisting of (i) the Mortgage Loans and all interest and principal received on
or with respect thereto after the related Cut-off Date, other than such amounts
which were due on the Mortgage Loans on or before the related Cut-off Date; (ii)
the Interest Rate Swap Agreement and all amounts received thereunder; (iii) the
Primary Mortgage Insurance Policy, if any, and all amounts received thereunder;
(iv) the Excess Reserve Fund Account, the Distribution Account, and all amounts
deposited therein pursuant to the applicable provisions of this Agreement; (v)
property that secured a Mortgage Loan and has been acquired by foreclosure,
deed-in-lieu of foreclosure or otherwise; (vi) the rights of the Trust under the
Step 2 Assignment Agreements; (vii) the Supplemental Interest Trust; and (viii)
all proceeds of the conversion, voluntary or involuntary, of any of the
foregoing. The Trust Fund created hereunder is referred to as the GSAA Home
Equity Trust 2006-17.
Trust REMIC: As specified in the Preliminary Statement.
Trustee: Deutsche Bank, and its successors in interest, and,
if a successor trustee is appointed hereunder, such successor.
Underwriters' Exemption: Any exemption listed in footnote 1
of, and amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg.
54487 (2002), or amended by Prohibited Transaction Exemption 2002-19, 67 Fed.
Reg. 14979, or any successor exemption.
46
Unpaid Interest Amount: As of any Distribution Date and any
Class of Certificates, the sum of (a) the portion of the Accrued Certificate
Interest Distribution Amount from Distribution Dates remaining unpaid prior to
the current Distribution Date and (b) interest on the amount in clause (a) at
the applicable Pass-Through Rate (to the extent permitted by applicable law).
U.S. Bank: U.S. Bank National Association, a national banking
association, and its successors in interest.
U.S. Person: (i) A citizen or resident of the United States;
(ii) a corporation (or entity treated as a corporation for tax purposes) created
or organized in the United States or under the laws of the United States or of
any State thereof, including, for this purpose, the District of Columbia; (iii)
a partnership (or entity treated as a partnership for tax purposes) organized in
the United States or under the laws of the United States or of any State
thereof, including, for this purpose, the District of Columbia (unless provided
otherwise by future Treasury regulations); (iv) an estate whose income is
includible in gross income for United States income tax purposes regardless of
its source; or (v) a trust, if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. Persons have authority to control all substantial decisions of the
trust. Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons prior to such date, may elect to continue to
be U.S. Persons.
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
Upper-Tier REMIC: As described in the Preliminary Statement.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), and (c) the remaining Voting Rights shall be allocated among Holders
of the remaining Classes of Certificates in proportion to the Certificate
Balances of their respective Certificates on such date.
WAC Cap: With respect to the Mortgage Loans as of any
Distribution Date, a per annum rate equal to the product of (i) the sum of (A)
the weighted average of the Adjusted Net Mortgage Interest Rates then in effect
on the beginning of the related Due Period on the Mortgage Loans, and (B) the
Net Swap Receipt Amount, if any, less the Net Swap Payment Amount, if any,
divided by the Stated Principal Balance of the Mortgage Loans at the beginning
of the related Due Period multiplied by 12 and (ii) 30 divided by the actual
number of days in the related Interest Accrual Period, in the case of the LIBOR
Certificates.
Xxxxx Fargo: Xxxxx Fargo Bank, National Association, a
national banking association, and its successors in interest.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The
Depositor, concurrently with the execution and delivery hereof, hereby sells,
transfers, assigns, sets over and otherwise conveys to the Trustee for the
benefit of the Certificateholders, without recourse, all the right, title and
interest of the Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each
Mortgage Loan, the Depositor has delivered or caused to be delivered to the
applicable Custodian on behalf of the Trustee for the benefit of the
Certificateholders the following documents or instruments with respect to each
applicable Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in
blank by the last endorsee, including all intervening endorsements
showing a complete chain of endorsement from the originator to the
last endorsee;
(ii) The original Assignment of Mortgage in blank (or, in
the case of the Goldman Conduit Mortgage Loans, in form and substance
acceptable for recording or if the Mortgage is to be recorded,
assigned to the Purchaser), unless the Mortgage Loan is a MERS Loan;
(iii) personal endorsement, surety and/or guaranty
agreements executed in connection with all non individual Mortgage
Loans (corporations, partnerships, trusts, estates, etc. (if any);
(iv) the related original Mortgage and evidence of its
recording or a certified copy of the Mortgage with evidence of
recording;
(v) originals of any intervening Mortgage assignment or
certified copies in either case necessary to show a complete chain of
title from the original mortgagee to the seller and evidencing
recording; provided, that, except in the case of the Goldman Conduit
Mortgage Loans, the assignment may be in the form of a blanket
assignment or assignments, a copy of which with evidence of recording
shall be acceptable;
(vi) originals of all assumption, modification,
consolidation or extension agreements or certified copies thereof, in
either case with evidence of recording if required to maintain the
lien of the mortgage or if otherwise required, or, if recordation is
not required, an original or copy of the agreement; provided, that,
in the case of the Goldman Conduit Mortgage Loans, an original with
evidence of recording thereon is always required;
(vii) if applicable to the files held by the applicable
Custodian, an original or copy of a title insurance policy or
evidence of title;
(viii) to the extent applicable, an original power of
attorney;
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(ix) for each Mortgage Loan (if applicable to the files held
by the applicable Custodian) with respect to which the Mortgagor's
name as it appears on the note does not match the borrower's name on
the Mortgage Loan Schedule, one of the following: the original of the
assumption agreement, or a certified copy thereof, in either case
with evidence of recording thereon if required to maintain the lien
of the mortgage or if otherwise required, or, if recordation is not
so required, an original or copy of such assumption agreement;
(x) if applicable to the files held by the applicable
Custodian, a security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage, if any; and
(xi) with respect to each Mortgage Loan, the complete
Custodial File including all items as set forth in the applicable
Servicing Agreement to the extent in the possession of the Depositor or
the Depositor's Agents.
The Depositor shall deliver or cause each Responsible Party to
deliver to each Custodian the applicable recorded document promptly upon receipt
from the respective recording office but in no event later than 120 days from
the Closing Date.
From time to time, pursuant to the applicable Sale Agreement,
the Responsible Party may forward to the applicable Custodian additional
original documents, additional documents evidencing an assumption, modification,
consolidation or extension of a Mortgage Loan, in accordance with the terms of
the applicable Sale Agreement. All such mortgage documents held by the
Custodians as to each Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall deliver
to the Custodians Assignments of Mortgages (except in the case of MERS Loans),
in blank, for each applicable Mortgage Loan. On the Closing Date, the Depositor
shall provide a written request to each Responsible Party to submit the
Assignments of Mortgage for recordation, at the Responsible Party's expense,
pursuant to the applicable Sale Agreement. Each Custodian shall deliver the
Assignment of Mortgages to be submitted for recordation to the applicable
Responsible Party upon receipt of a written request for release in standard and
customary form as set forth in Exhibit L, Exhibit L-1 or Exhibit L-2, as
applicable.
On or prior to the Closing Date, the Depositor shall deliver
to the Custodians and the Master Servicer a copy of the Mortgage Loan Schedule
in electronic, machine readable medium in a form mutually acceptable to the
Depositor, the applicable Custodian, the Master Servicer and the Trustee.
In the event that such original or copy of any document
submitted for recordation to the appropriate public recording office is not so
delivered to the Custodian within the time period and in the manner specified in
the applicable Sale Agreement, the Trustee shall take or cause to be taken such
remedial actions under the Sale Agreement against the applicable Responsible
Party as may be permitted to be taken thereunder, including without limitation,
if applicable, the repurchase by the applicable Responsible Party of such
Mortgage Loan. The foregoing repurchase remedy shall not apply in the event that
the Responsible Party cannot
49
deliver such original or copy of any document submitted for recordation to the
appropriate public recording office within the specified period due to a delay
caused by the recording office in the applicable jurisdiction; provided, that
the applicable Responsible Party shall instead deliver a recording receipt of
such recording office or, if such recording receipt is not available, an
officer's certificate of an officer of the applicable Responsible Party,
confirming that such document has been accepted for recording.
Notwithstanding anything to the contrary contained in this
Section 2.01, in those instances where the public recording office retains or
loses the original Mortgage or assignment after it has been recorded, the
obligations of the Responsible Party shall be deemed to have been satisfied upon
delivery by the Responsible Party to the applicable Custodian prior to the
Closing Date of a copy of such Mortgage or assignment, as the case may be,
certified (such certification to be an original thereof) by the public recording
office to be a true and complete copy of the recorded original thereof.
(c) The Depositor does hereby establish, pursuant to the
further provisions of this Agreement and the laws of the State of New York, an
express trust (the "Trust") to be known, for convenience, as "GSAA Home Equity
Trust 2006-17" and Deutsche Bank is hereby appointed as Trustee in accordance
with the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of
the Mortgage Loans included in the Trust is (a) covered by the Home Ownership
and Equity Protection Act of 1994, or (b) considered a "high cost home,"
"threshold," "predatory" or "covered" loan (excluding "covered home loans" as
defined under clause (1) of the definition of "covered home loans" in the New
Jersey Home Ownership Security Act of 2002) under applicable state, federal or
local laws.
Section 2.02 Acceptance by the Custodians of the Mortgage
Loans. Each Custodian acknowledges receipt of the documents identified in the
Initial Certification, subject to any exceptions listed on the exception
report attached thereto, in the form annexed hereto as Exhibit E, and declares
that it holds and will hold such documents and the other documents delivered
to it pursuant to Section 2.01, and that it holds or will hold such other
assets as are included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders. BNY, as Custodian,
acknowledges that it will maintain possession of the related Mortgage Notes in
the State of Texas, unless otherwise permitted by the Rating Agencies,
Deutsche Bank, as Custodian, acknowledges that it will maintain possession of
the related Mortgage Notes in the State of California, unless otherwise
permitted by the Rating Agencies and U.S. Bank, as Custodian, acknowledges
that it will maintain possession of the related Mortgage Notes in the State of
Minnesota.
Prior to and as a condition to the Closing, each Custodian
shall deliver via facsimile (with original to follow the next Business Day) to
the Depositor an Initial Certification prior to the Closing Date, or as the
Depositor agrees to, on the Closing Date, certifying receipt of a Mortgage Note
and Assignment of Mortgage, subject to any exceptions listed on the exception
report attached thereto, for each Mortgage Loan. None of the Custodians shall be
responsible for verifying the validity, sufficiency or genuineness of any
document in any Custodial File.
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On the Closing Date, each Custodian shall ascertain that all
documents required to be delivered to it on or prior to the Closing Date are in
its possession, subject to any exceptions listed on the exception report
attached thereto, and shall deliver to the Depositor and the Trustee an Initial
Certification, in the form annexed hereto as Exhibit E, and shall deliver to the
Depositor and the Trustee a Document Certification and Exception Report, in the
form annexed hereto as Exhibit F, within ninety (90) days after the Closing Date
to the effect that, as to each applicable Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in such certification as an exception and not covered by
such certification): (i) all documents required to be delivered to it are in its
possession; (ii) such documents have been reviewed by it and appear regular on
their face and relate to such Mortgage Loan; (iii) based on its examination and
only as to the foregoing documents, as to BNY, the information set forth in
items 2, 8, 34, and 35 of the Mortgage Loan Schedule respecting such Mortgage
Loan is correct; (iv) based on its examination and only as to the foregoing
documents, as to Deutsche Bank, the information set forth in items 2, 8, 33, and
34 of the Mortgage Loan Schedule respecting such Mortgage Loan is correct; (v)
based on its examination and only as to the foregoing documents, as to U.S.
Bank, the information set forth in items 2, 8, 34, and 35 of the Mortgage Loan
Schedule respecting such Mortgage Loan is correct; and (vii) each Mortgage Note
has been endorsed as provided in Section 2.01 of this Agreement. None of the
Custodians shall be responsible for verifying the validity, sufficiency or
genuineness of any document in any Custodial File.
Each Custodian shall retain possession and custody of each
applicable Custodial File in accordance with and subject to the terms and
conditions set forth herein. The Servicer shall promptly deliver to the
applicable Custodian, upon the execution or receipt thereof, the originals of
such other documents or instruments constituting the Custodial File as come into
the possession of the Servicer from time to time.
Each Custodian shall notify the Trustee and the Depositor of
any Mortgage Loans that do not conform to the requirements of Sections 2.01 and
2.02 hereof by delivery of the Document Certification and Exception Report. In
its capacity as "Assignee" under the Step 2 Assignment Agreements, the Trustee
shall enforce the obligation of the Responsible Parties to cure or repurchase
Mortgage Loans that do not conform to such requirements as determined in the
applicable Custodian's review as required herein, or based upon notification
from the Master Servicer (who shall be entitled to rely on information regarding
any such defaults by a Responsible Party that has been provided by the
applicable Servicer for purposes of providing such notification to the Trustee),
by notifying the applicable Responsible Party to correct or cure such default.
In its capacity as "Assignee" under the Step 2 Assignment Agreements, the
Trustee shall also enforce the obligation of the Responsible Parties under the
Sale Agreements, and to the extent applicable, of any Servicer under the
Servicing Agreements, and of the Purchaser under the Step 1 Assignment
Agreements to cure or repurchase Mortgage Loans for which there is a defect or a
breach of a representation or warranty thereunder of which a Responsible Officer
of the Trustee has actual knowledge, by notifying the applicable party to
correct or cure such default. If the Trustee obtains actual knowledge that any
Servicer, any Responsible Party or the Purchaser, as the case may be, fails or
is unable to correct or cure the defect or breach within the period set forth in
the applicable agreement, the Trustee shall notify the Depositor of such failure
to correct or cure. Unless otherwise directed by the Depositor within five (5)
Business Days after notifying the Depositor of such failure by the applicable
party to correct or cure, the Trustee
51
shall notify such party to repurchase the Mortgage Loan. If, within ten (10)
Business Days of receipt of such notice by such party, such party fails to
repurchase such Mortgage Loan, the Trustee shall notify the Depositor of such
failure. The Trustee shall pursue all legal remedies available to the Trustee
against the Servicers, the Responsible Parties and the Purchaser, as
applicable, under this Agreement, if the Trustee has received written notice
from the Depositor directing the Trustee to pursue such remedies and the
Trustee shall be entitled to reimbursement from the Trust Fund for any
reasonable expenses incurred in pursuing such remedies.
Section 2.03 Execution and Delivery of Certificates. The
Trustee acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, the Securities Administrator
has executed and delivered to or upon the order of the Depositor, the
Certificates in authorized denominations evidencing directly or indirectly the
entire ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund
and exercise the rights referred to above for the benefit of all present and
future Holders of the Certificates.
Section 2.04 REMIC Matters. The Preliminary Statement sets
forth the designations for federal income tax purposes of all interests
created hereby. The "Startup Day" for purposes of the REMIC Provisions shall
be the Closing Date. The "latest possible maturity date" is November 25, 2036,
which is the Distribution Date following the latest Mortgage Loan maturity
date. Amounts paid to the Class X Certificates (prior to any reduction for any
Basis Risk Payment or Swap Termination Payment) shall be deemed paid from the
Upper-Tier REMIC to the Class X REMIC in respect of the Class X Interest and
from the Class X REMIC to the holders of the Class X Certificates prior to
distribution of Basis Risk Payments to the LIBOR Certificates.
Amounts distributable to the Class X Certificates (prior to any reduction for
any Net Swap Receipt Amounts, Net Swap Payment Amounts or Swap Termination
Payment), shall be deemed paid from the Class X REMIC to the Holders of the
Class X Certificates prior to distribution of any Basis Risk Payments to the
LIBOR Certificates.
For federal income tax purposes, any amount distributed on the
LIBOR Certificates on any such Distribution Date in excess of their Pass Through
Rate, calculated by substituting the REMIC Cap for the applicable cap in respect
of the related Certificates shall be treated as having been paid from the Excess
Reserve Fund Account or the Supplemental Interest Trust, as applicable, and any
excess of the REMIC Cap over the amount distributable on such Class of LIBOR
Certificates on such Distribution Date shall be treated as having been paid to
the Supplemental Interest Trust, all pursuant to, and as further provided in,
Section 8.14.
Section 2.05 Representations and Warranties of the
Depositor. The Depositor hereby represents, warrants and covenants to the
Trustee that as of the date of this Agreement or as of such date specifically
provided herein:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to
convey the Mortgage Loans and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by, this Agreement;
52
(c) This Agreement has been duly and validly authorized,
executed and delivered by the Depositor, all requisite corporate action having
been taken, and, assuming the due authorization, execution and delivery hereof
by the other parties hereto, constitutes or will constitute the legal, valid
and binding agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or
registration or filing with, or notice to, any governmental authority or court
is required for the execution, delivery and performance of or compliance by
the Depositor with this Agreement or the consummation by the Depositor of any
of the transactions contemplated hereby, except as have been made on or prior
to the Closing Date;
(e) None of the execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of,
or constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) any
term, condition or provision of any material indenture, deed of trust,
contract or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound;
(ii) results or will result in a violation of any law, rule, regulation,
order, judgment or decree applicable to the Depositor of any court or
governmental authority having jurisdiction over the Depositor or its
subsidiaries; or (iii) results in the creation or imposition of any lien,
charge or encumbrance which would have a material adverse effect upon the
Mortgage Loans or any documents or instruments evidencing or securing the
Mortgage Loans;
(f) There are no actions, suits or proceedings before or
against or investigations of, the Depositor pending, or to the knowledge of
the Depositor, threatened, before any court, administrative agency or other
tribunal, and no notice of any such action, which, in the Depositor's
reasonable judgment, might materially and adversely affect the performance by
the Depositor of its obligations under this Agreement, or the validity or
enforceability of this Agreement;
(g) The Depositor is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency that may materially and
adversely affect its performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any
other Person, and the Depositor has transferred all right, title and interest
in each Mortgage Loan to the Trustee. The transfer of each Mortgage Note and
each Mortgage as and in the manner contemplated by this Agreement is
sufficient either (i) fully to transfer to the Trustee, for the benefit of the
Certificateholders, all right, title, and interest of the Depositor thereto as
note holder and mortgagee or (ii) to grant to the Trustee, for the benefit of
the Certificateholders, the security interest referred to in Section 12.04
hereof.
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It is understood and agreed that the representations,
warranties and covenants set forth in this Section 2.05 shall survive delivery
of the respective Custodial Files to the Custodians, and shall inure to the
benefit and to Certificateholders.
Section 2.06 Representations and Warranties of BNY. BNY, as
Custodian, hereby represents and warrants to the Depositor, the Master
Servicer and the Trustee, as of the Closing Date:
(a) Such Custodian is duly organized and is validly existing
and in good standing under the laws of its jurisdiction of incorporation and
is duly authorized and qualified to transact any and all business contemplated
by this Agreement to be conducted by such Custodian or is otherwise not
required under applicable law to effect such qualification and, in any event,
is in compliance with the doing business laws of any such state, to the extent
necessary to perform any of its obligations under this Agreement in accordance
with the terms thereof.
(b) Such Custodian has the full power and authority to
execute, deliver and perform, and to enter into and consummate the
transactions contemplated by this Agreement and has duly authorized by all
necessary action on the part of such Custodian the execution, delivery and
performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of such Custodian,
enforceable against such Custodian in accordance with its terms, except that
(i) the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors' rights
generally and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(c) The execution and delivery of this Agreement by such
Custodian, the consummation of any other of the transactions contemplated by
this Agreement, and the fulfillment of or compliance with the terms thereof
are in the ordinary course of business of such Custodian and will not result
in a material breach of any term or provision of the articles of association
or by laws of such Custodian.
Section 2.07 Representations and Warranties of Deutsche
Bank. Deutsche Bank, in its capacity as a Custodian, hereby represents and
warrants to the Depositor, the Master Servicer and the Trustee, as of the
Closing Date:
(a) Such Custodian is duly organized and is validly existing
and in good standing under the laws of its jurisdiction of incorporation and
is duly authorized and qualified to transact any and all business contemplated
by this Agreement to be conducted by such Custodian or is otherwise not
required under applicable law to effect such qualification and, in any event,
is in compliance with the doing business laws of any such state, to the extent
necessary to perform any of its obligations under this Agreement in accordance
with the terms thereof.
(b) Such Custodian has the full power and authority to
execute, deliver and perform, and to enter into and consummate the
transactions contemplated by this Agreement and has duly authorized by all
necessary action on the part of such Custodian the execution, delivery
54
and performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of such Custodian,
enforceable against such Custodian in accordance with its terms, except that
(i) the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors' rights
generally and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(c) The execution and delivery of this Agreement by such
Custodian, the consummation of any other of the transactions contemplated by
this Agreement, and the fulfillment of or compliance with the terms thereof
are in the ordinary course of business of such Custodian and will not result
in a material breach of any term or provision of the articles of association
or by laws of such Custodian.
Section 2.08 Representations and Warranties of U.S. Bank.
U.S. Bank hereby represents and warrants to the Depositor, the Master Servicer
and the Trustee, as of the Closing Date:
(a) Such Custodian is duly organized and is validly existing
and in good standing under the laws of its jurisdiction of incorporation and
is duly authorized and qualified to transact any and all business contemplated
by this Agreement to be conducted by such Custodian or is otherwise not
required under applicable law to effect such qualification and, in any event,
is in compliance with the doing business laws of any such state, to the extent
necessary to perform any of its obligations under this Agreement in accordance
with the terms thereof.
(b) Such Custodian has the full power and authority to
execute, deliver and perform, and to enter into and consummate the
transactions contemplated by this Agreement and has duly authorized by all
necessary action on the part of such Custodian the execution, delivery and
performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes a legal, valid and binding obligation of such Custodian,
enforceable against such Custodian in accordance with its terms, except that
(i) the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors' rights
generally and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(c) The execution and delivery of this Agreement by such
Custodian, the consummation of any other of the transactions contemplated by
this Agreement, and the fulfillment of or compliance with the terms thereof
are in the ordinary course of business of such Custodian and will not result
in a material breach of any term or provision of the articles of incorporation
or by laws of such Custodian.
55
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Excess Reserve Fund Account; Distribution
Account. (a) The Securities Administrator shall establish and maintain the
Excess Reserve Fund Account to receive any Basis Risk Payment and to secure
their limited recourse obligation to pay to the LIBOR Certificateholders any
Basis Risk Carry Forward Amounts (prior to using any Net Swap Receipt
Amounts). On each Distribution Date, the Securities Administrator shall
deposit the amount of any Basis Risk Payment received by it for such date into
the Excess Reserve Fund Account. For the avoidance of doubt, any Basis Risk
Carry Forward Amounts shall be paid to the LIBOR Certificates first from the
Excess Reserve Fund Account and then from the Supplemental Interest Trust.
On each Distribution Date on which there exists a Basis Risk
Carry Forward Amount on any Class or Classes of LIBOR Certificates, the
Securities Administrator shall (1) withdraw from the Distribution Account, to
the extent of funds available therefor in the Distribution Account, and deposit
in the Excess Reserve Fund Account, as set forth in Section 4.01(a)(iii)(e), the
lesser of (x) the Class X Distributable Amount (without regard to the reduction
in clause (iii) of the definition thereof with respect to Basis Risk Payments)
(to the extent remaining after the distributions specified in Sections
4.01(a)(iii)(a)-(d)) and (y) the aggregate Basis Risk Carry Forward Amount of
the LIBOR Certificates for such Distribution Date and (2) withdraw from the
Excess Reserve Fund Account and the Supplemental Interest Account amounts
necessary (including Net Swap Payment Amounts or Swap Termination Payments
(other than amounts received pursuant to an ISDA Credit Support Annex negotiated
between the Trust and the Swap Provider)) to pay to such Class or Classes of
Certificates the related Basis Risk Carry Forward Amount. Such payments shall be
allocated to those Classes based upon the amount of Basis Risk Carry Forward
Amount owed to each such Class and shall be paid in the priority set forth in
Section 4.01(a)(iii)(e).
The Securities Administrator shall account for the Excess
Reserve Fund Account as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created pursuant
to this Agreement. The beneficial owners of the Excess Reserve Fund Account are
the Class X Certificateholders. For all federal income tax purposes, amounts
transferred to the Excess Reserve Fund Account shall be treated as distributions
by the Securities Administrator from the Upper-Tier REMIC to the Class X
Interest and from the Class X REMIC to the Class X Certificates and then
contributed by the Class X Certificateholders to the Excess Reserve Fund
Account.
Any Basis Risk Carry Forward Amounts distributed by the
Securities Administrator to the Principal Certificateholders shall be accounted
for by the Securities Administrator, for federal income tax purposes, as amounts
paid first to the Holders of the Class X Certificates and then to the respective
Class or Classes of LIBOR Certificates in accordance with the priority of
payments in this Section 3.01. In addition, the Securities Administrator shall
account for the Principal Certificateholders' rights to receive payments of
Basis Risk Carry Forward Amounts as rights in a limited recourse interest rate
cap contract written by the Class X Certificateholders in favor of the Holders
of each such Class.
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Notwithstanding any provision contained in this Agreement,
the Securities Administrator shall not be required to make any distributions
from the Excess Reserve Fund Account except as expressly set forth in this
Section 3.01(a).
(b) The Securities Administrator shall establish and
maintain the Distribution Account on behalf of the Certificateholders. The
amount remitted by the Servicer to the Master Servicer on each Remittance Date
shall be credited to the Distribution Account within two (2) Business Days
once the amounts are identified as a remittance in connection with the Trust
and reconciled to the reports provided by the Servicer. The Securities
Administrator shall establish and maintain the Distribution Account on behalf
of the Certificateholders. The Master Servicer shall, promptly upon receipt on
the Business Day received, deposit in the Distribution Account and retain
therein the following:
(i) the aggregate amount remitted by the Servicers to the
Master Servicer pursuant to the Servicing Agreements;
(ii) any amounts remitted as a result of the operation of
the Primary Mortgage Insurance Policy, if applicable;
(iii) any Net Swap Receipt Amounts or Swap Termination
Payments (other than amounts received pursuant to an ISDA Credit
Support Annex negotiated between the Trust and the Swap Provider)
remitted by the Swap Provider; and
(iv) any other amounts deposited hereunder which are
required to be deposited in the Distribution Account.
In the event that any Servicer shall remit any amount not
required to be remitted pursuant to the applicable Servicing Agreement, and such
Servicer directs the Master Servicer in writing to withdraw such amount from the
Distribution Account, the Master Servicer shall return such funds to the
applicable Servicer. All funds deposited in the Distribution Account shall be
held by the Securities Administrator in trust for the Certificateholders until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 4.01.
(c) From time to time, the Securities Administrator may
also establish any other accounts for the purposes of carrying out its duties
hereunder (including, without limitation, any account necessary under the
Interest Rate Swap Agreement).
Section 3.02 Investment of Funds in the Distribution
Account. (a) Other than during the Master Servicer Float Period, the Depositor
shall direct the investment of funds held in the Distribution Account in one
or more Permitted Investments. Absent such direction, the Securities
Administrator shall invest such funds during such period in the Xxxxx Fargo
Advantage Prime Investment Money Market Fund so long as such fund is a
Permitted Investment. The Securities Administrator may (but shall not be
obligated to) invest funds in the Distribution Account during the Master
Servicer Float Period (for purposes of this Section 3.02, such Account is
referred to as an "Investment Account"), in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on
demand, or maturing on such Distribution Date, in the case of an investment
that is an obligation of Xxxxx Fargo, no later than the Business Day
immediately preceding the date on which such funds are required to be
57
withdrawn from such account pursuant to this Agreement. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Securities Administrator. The Securities Administrator shall be entitled to
sole possession over each such investment, and any certificate or other
instrument evidencing any such investment shall be delivered directly to the
Securities Administrator or its agent, together with any document of transfer
necessary to transfer title to such investment to the Securities
Administrator. In the event amounts on deposit in an Investment Account are at
any time invested in a Permitted Investment payable on demand, the Securities
Administrator may:
(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on
the last day such Permitted Investment may otherwise
mature hereunder in an amount equal to the lesser of
(1) all amounts then payable thereunder and (2) the
amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder that
such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter
on deposit in the Investment Account.
(b) All income and gain realized from the investment of
funds deposited in the Distribution Account held by the Securities
Administrator during the Master Servicer Float Period shall be subject to the
Securities Administrator's withdrawal in the manner set forth in Section
10.05.
(c) Except as otherwise expressly provided in this
Agreement, if any default occurs in the making of a payment due under any
Permitted Investment, or if a default occurs in any other performance required
under any Permitted Investment, the Securities Administrator shall take such
action as may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate proceedings. Notwithstanding
the foregoing, the Depositor shall be liable to the Trust for any loss on any
investment of funds in the Distribution Account other than during the Master
Servicer Float Period and the Securities Administrator shall be liable to the
Trust for any such loss on any funds it has invested under this Section 3.02
only during the Master Servicer Float Period, and the Depositor or the
Securities Administrator, as the case may be, shall deposit funds in the
amount of such loss in the Distribution Account promptly after such loss is
incurred.
(d) The Securities Administrator or its Affiliates are
permitted to receive additional compensation that could be deemed to be in the
Securities Administrator's economic self-interest for (i) serving as
investment adviser, administrator, shareholder, servicing agent, custodian or
sub-custodian with respect to certain of the Permitted Investments, (ii) using
Affiliates to effect transactions in certain Permitted Investments and (iii)
effecting transactions in certain Permitted Investments. Such compensation is
not payable or reimbursable under Section 8.06 of this Agreement.
(e) In order to comply with its duties under the USA PATRIOT
Act of 2001, BNY and U.S. Bank, each as a Custodian, may obtain and verify
certain information and
58
documentation from the other parties to this Agreement including, but not
limited to, each such party's name, address and other identifying information.
(f) In order to comply with laws, rules and regulations
applicable to banking institutions, including those relating to the funding of
terrorist activities and money laundering, Deutsche Bank as Trustee and a
Custodian is required to obtain, verify and record certain information
relating to individuals and entities which maintain a business relationship
with Deutsche Bank. Accordingly, each of the parties agrees to provide to
Deutsche Bank upon its request from time to time such party's complete name,
address, tax identification number and such other identifying information
together with copies of such party's constituting documentation, securities
disclosure documentation and such other identifying documentation as may be
available for such party.
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution. (a) On each
Distribution Date, the Securities Administrator shall make the disbursements
and transfers from amounts then on deposit in the Distribution Account in the
following order of priority and to the extent of the Available Funds
remaining:
(i) to the holders of each Class of LIBOR Certificates and
to the Supplemental Interest Trust in the following order of
priority:
(A) to the Supplemental Interest Trust, the sum of (x)
all Net Swap Payment Amounts and (y) any Swap Termination
Payment owed to the Swap Provider other than a Defaulted
Swap Termination Payment owed to the Swap Provider, if any;
(B) from the Interest Remittance Amounts, pro rata
(based on the Accrued Certificate Interest Distribution
Amounts and Unpaid Interest Amounts, distributable to each
Class of Class A Certificates), to each of the Class A
Certificates, the related Accrued Certificate Interest
Distribution Amounts and Unpaid Interest Amounts for each
Class of the Class A Certificates from prior Distribution
Dates;
(C) from any remaining Interest Remittance Amounts to
the Class M Certificates, sequentially, in ascending
numerical order, their Accrued Certificate Interest; and
(D) from any remaining Interest Remittance Amounts to
the Class B Certificates, sequentially, in ascending
numerical order, their Accrued Certificate Interest.
(ii) (A) on each Distribution Date (x) prior to the Stepdown
Date or (y) with respect to which a Trigger Event is in effect, to
the holders of the Class or Classes of LIBOR Certificates and
Residual Certificates then entitled to distributions of principal,
59
from Available Funds remaining after making distributions pursuant to
clause (a)(i) above, an amount equal to the Principal Distribution
Amount in the following order of priority:
(1) concurrently, to the Class R, Class RC and
Class RX Certificates, pro rata, until their
respective Class Certificate Balances have been
reduced to zero;
(2) concurrently, to the Class A Certificates,
in the following order of priority:
(x) sequentially, to the Class A-1
and Class A-2 Certificates, in that order,
until their respective Class Certificate
Balances have been reduced to zero;
(y) concurrently, to the Class A-3A
and Class A-3B Certificates, pro rata, until
their respective Class Certificate Balances
have been reduced to zero, with the
exception that if a Sequential Trigger Event
is in effect, principal distributions to the
Class A-3A and Class A-3B Certificates will
be allocated first to the Class A-3A
Certificates, until its Class Certificate
Balance has been reduced to zero, and then
to the Class A-3B Certificates, until its
Class Certificate Balance has been reduced
to zero;
(3) sequentially, to the Class X-0, Xxxxx X-0,
Class M-3, Class M-4, Class M-5, Class M-6, Class B-1,
Class B-2 and Class B-3 Certificates, in that order,
until their respective Class Certificate Balances have
been reduced to zero;
(B) on each Distribution Date (x) on and after the
Stepdown Date and (y) as long as a Trigger Event is not in
effect, to the holders of the Class or Classes of LIBOR
Certificates then entitled to distribution of principal from
Available Funds remaining after making distributions
pursuant to clause (i) above, an amount equal to the
Principal Distribution Amount in the following order of
priority:
(1) to the Class A Certificates, the lesser of
(x) the Principal Distribution Amount and (y) the
Class A Principal Distribution Amount allocated among
those classes in the following order of priority:
(x) sequentially, to the Class A-1
and Class A-2 Certificates, in that order,
until their respective Class Certificate
Balances have been reduced to zero; and
(y) concurrently, to the Class A-3A and Class
A-3B Certificates, pro rata, until their
respective Class Certificate Balances have been
reduced to zero;
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(2) to the Class M-1 Certificates, the lesser of
(x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(1) above and (y) the
Class M-1 Principal Distribution Amount, until their
Class Certificate Balance has been reduced to zero;
(3) to the Class M-2 Certificates, the lesser of
(x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(1) above and to the
Class M-1 Certificates in clause (ii)(B)(2) above and
(y) the Class M-2 Principal Distribution Amount, until
their Class Certificate Balance has been reduced to
zero;
(4) to the Class M-3 Certificates, the lesser of
(x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(1) above, to the Class
M-1 Certificates in clause (ii)(B)(2) above and to the
Class M-2 Certificates in clause (ii)(B)(3) above and
(y) the Class M-3 Principal Distribution Amount, until
their Class Certificate Balance has been reduced to
zero;
(5) to the Class M-4 Certificates, the lesser of
(x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(1) above, to the Class
M-1 Certificates in clause (ii)(B)(2) above, to the
Class M-2 Certificates in clause (ii)(B)(3) above and
to the Class M-3 Certificates in clause (ii)(B)(4)
above and (y) the Class M-4 Principal Distribution
Amount, until their Class Certificate Balance has been
reduced to zero;
(6) to the Class M-5 Certificates, the lesser of
(x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(1) above, to the Class
M-1 Certificates in clause (ii)(B)(2) above, to the
Class M-2 Certificates in clause (ii)(B)(3) above, to
the Class M-3 Certificates in clause (ii)(B)(4) above
and to the Class M-4 Certificates in clause (ii)(B)(5)
above and (y) the Class M-5 Principal Distribution
Amount, until their Class Certificate Balance has been
reduced to zero;
(7) to the Class M-6 Certificates, the lesser of
(x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(1) above, to the Class
M-1 Certificates in clause (ii)(B)(2) above, to the
Class M-2 Certificates in clause (ii)(B)(3) above, to
the Class M-3 Certificates in clause (ii)(B)(4) above
and to the Class M-4 Certificates in clause (ii)(B)(5)
above and to the Class M-5 Certificates in clause
(ii)(B)(6) above and (y) the Class M-6 Principal
Distribution Amount, until their Class Certificate
Balance has been reduced to zero;
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(8) to the Class B-1 Certificates, the lesser of
(x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(1) above, to the Class
M-1 Certificates in clause (ii)(B)(2) above, to the
Class M-2 Certificates in clause (ii)(B)(3) above, to
the Class M-3 Certificates in clause (ii)(B)(4) above,
to the Class M-4 Certificates in clause (ii)(B)(5)
above, to the Class M-5 Certificates in clause
(ii)(B)(6) above and to the Class M-6 Certificates in
clause (ii)(B)(7) above and (y) the Class B-1
Principal Distribution Amount, until their Class
Certificate Balance has been reduced to zero;
(9) to the Class B-2 Certificates, the lesser of
(x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(1) above, to the Class
M-1 Certificates in clause (ii)(B)(2) above, to the
Class M-2 Certificates in clause (ii)(B)(3) above, to
the Class M-3 Certificates in clause (ii)(B)(4) above,
to the Class M-4 Certificates in clause (ii)(B)(5)
above, to the Class M-5 Certificates in clause
(ii)(B)(6) above, to the Class M-6 Certificates in
clause (ii)(B)(7) above and to the Class B-1
Certificates in clause (ii)(B)(8) above and (y) the
Class B-2 Principal Distribution Amount, until their
Class Certificate Balance has been reduced to zero;
and
(10) to the Class B-3 Certificates, the lesser
of (x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Class A
Certificates in clause (ii)(B)(1) above, to the Class
M-1 Certificates in clause (ii)(B)(2) above, to the
Class M-2 Certificates in clause (ii)(B)(3) above, to
the Class M-3 Certificates in clause (ii)(B)(4) above,
to the Class M-4 Certificates in clause (ii)(B)(5)
above, to the Class M-5 Certificates in clause
(ii)(B)(6) above, to the Class M-6 Certificates in
clause (ii)(B)(7) above, to the Class B-1 Certificates
in clause (ii)(B)(8) above and to the Class B-2
Certificates in clause (ii)(B)(9) above and (y) the
Class B-3 Principal Distribution Amount, until their
Class Certificate Balance has been reduced to zero.
(iii) from the Available Funds remaining after the
distributions in clauses (a)(i) and (a)(ii) above, the following
amounts shall be distributed in the following order of priority:
(A) if and to the extent that the Interest Remittance
Amounts distributed pursuant to clauses (a)(i) and (a)(ii)
above were insufficient to make full distributions in
respect of interest set forth in such clauses, (x) to the
holders of each Class of Class A Certificates, any unpaid
Accrued Certificate Interest and any Unpaid Interest
Amounts, pro rata among such Classes based on their
respective entitlement to those amounts, and then (y) to the
holders of each Class of the Class M and Class B
Certificates, any unpaid Accrued Certificate Interest, in
the order of priority for such classes set forth in clause
(i) above;
62
(B) to the holders of the Class M-1 Certificates, any
Unpaid Interest Amount for such Class;
(C) to the holders of the Class M-2 Certificates, any
Unpaid Interest Amount for such Class;
(D) to the holders of the Class M-3 Certificates, any
Unpaid Interest Amount for such Class;
(E) to the holders of the Class M-4 Certificates, any
Unpaid Interest Amount for such Class;
(F) to the holders of the Class M-5 Certificates, and
Unpaid Interest Amount for such Class;
(G) to the holders of the Class M-6 Certificates, and
Unpaid Interest Amount for such Class;
(H) to the holders of the Class B-1 Certificates, any
Unpaid Interest Amount for such Class;
(I) to the holders of the Class B-2 Certificates, any
Unpaid Interest Amount for such Class;
(J) to the holders of the Class B-3 Certificates, any
Unpaid Interest Amount for such Class;
(K) to the Excess Reserve Fund Account, the amount of
any Basis Risk Payment (without regard to Net Swap Receipt
Amounts) for such Distribution Date;
(L) from funds on deposit in the Excess Reserve Fund
Account with respect to that Distribution Date, an amount
equal to any Basis Risk Carry Forward Amount with respect to
the LIBOR Certificates for that Distribution Date in the
same order and priority in which Accrued Certificate
Interest is allocated among those Classes of Certificates,
with the allocation to the Class A Certificates being pro
rata based on their respective Class Certificate Balances;
provided, however, for any Distribution Date, after the
remaining Basis Risk Carry Forward Amount for any of the
Class A Certificates has been reduced to zero, any remaining
Basis Risk Carry Forward Amount that would have been
allocated to such Class A Certificates for that Distribution
Date will be allocated, pro rata, to the remaining Class A
Certificates based on their respective remaining unpaid
Basis Risk Carry Forward Amounts;
(M) to the Supplemental Interest Trust, the amount of
any Defaulted Swap Termination Payment owed to the Swap
Provider;
63
(N) to the holders of the Class X Certificates, the
remainder of the Class X Distributable Amount not
distributed pursuant to Section 4.01(a)(iii)(A)-(L); and
(O) to the holders of the Class R, Class RC and Class
RX Certificates, pro rata, any remaining amount.
(b) On each Distribution Date, all amounts representing
Prepayment Premiums from the Mortgage Loans received during the related
Principal Prepayment Period shall be distributed by the Securities
Administrator to the holders of the Class P Certificates.
(c) Notwithstanding the foregoing description of allocation
of principal distributions to the Class A Certificates, from and after the
Distribution Date on which the aggregate Class Certificate Balance of the
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class B-1,
Class B-2 and Class B-3 Certificates and the Overcollateralized Amount have
been reduced to zero, any principal distributions allocated to the Class A
Certificates are required to be allocated pro rata to the Class A
Certificates, based on their respective Class Certificate Balances, until
their respective Class Principal Balances have been returned to zero, with the
exception that if a Sequential Trigger Event is in effect, principal
distributions to the Class A-3A and Class A-3B Certificates will be allocated
(x) first to the Class A-3A Certificates, until its Class Certificate Balance
has been reduced to zero and (y) then to the Class A-3B Certificates, until
its Class Certificate Balance has been reduced to zero.
(d) On any Distribution Date, any Relief Act Interest
Shortfalls and Net Prepayment Interest Shortfalls for such Distribution Date
shall be allocated first to excess interest on the Mortgage Loans for the
related Distribution Date and thereafter, pro rata, as a reduction of the
Accrued Certificate Interest Distribution Amount for the Class A, Class M and
Class B Certificates, based on the Accrued Certificate Interest Distribution
Amount to which such Classes would otherwise be entitled on such Distribution
Date.
Upon any exercise of the purchase option set forth in Section
11.01(a), the Securities Administrator shall distribute to the holders of the
Class RC Certificates any amounts required to be distributed on the Class RC
Certificates pursuant to Section 11.02.
Section 4.02 Monthly Statements to Certificateholders. (a)
Not later than each Distribution Date, the Securities Administrator shall make
available to each Certificateholder, the Depositor, the Trustee and each
Rating Agency a statement based, in part, upon the information provided by the
Servicers setting forth with respect to the related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Unpaid
Interest Amount included in such distribution and any remaining
Unpaid Interest Amount after giving effect to such distribution,
any Basis Risk Carry Forward Amount for such Distribution Date and
the amount of all Basis Risk Carry Forward Amount covered by
withdrawals from the Excess Reserve Fund Account on such
Distribution Date;
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(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be
distributable to such Holders if there were sufficient funds
available therefor, the amount of the shortfall and the allocation
thereof as between principal and interest, including any Basis
Risk Carry Forward Amount not covered by amounts in the Excess
Reserve Fund Account;
(iv) the Class Certificate Balance of each Class of
Certificates and the notional amount of the Class P Certificates
after giving effect to the distribution of principal on such
Distribution Date;
(v) the aggregate Stated Principal Balance of the Mortgage
Loans for the following Distribution Date;
(vi) the amount of the expenses and fees paid to or retained
by the Servicer and paid to or retained by the Trustee with
respect to such Distribution Date;
(vii) the amount of any Administrative Fees paid to the
Master Servicer or Securities Administrator with respect to such
Distribution Date;
(viii) the Pass-Through Rate for each such Class of
Certificates with respect to such Distribution Date;
(ix) the amount of P&I Advances included in the distribution
on such Distribution Date and the aggregate amount of P&I Advances
reported by the Servicers (and the Master Servicer, the Trustee as
successor master servicer and any other successor master servicer,
if applicable) as outstanding as of the close of business on the
Determination Date immediately preceding such Distribution Date;
(x) the number and aggregate outstanding principal balances
of Mortgage Loans (1) as to which the Monthly Payment is
delinquent 31 to 60 days, 61 to 90 days and 91 or more days (each
to be calculated using the OTS method), (2) that have become REO
Property, (3) that are in foreclosure and (4) that are in
bankruptcy, in each case as of the close of business on the last
Business Day of the immediately preceding month;
(xi) the total number and principal balance of any REO
Properties (and market value, if available) as of the close of
business on the Determination Date preceding such Distribution
Date;
(xii) whether a Trigger Event has occurred and is continuing
(including the calculation demonstrating the existence of the
Trigger Event and the aggregate outstanding balance of all 60+ Day
Delinquent Mortgage Loans);
(xiii) the amount on deposit in the Excess Reserve Fund
Account (after giving effect to distributions on such Distribution
Date);
(xiv) in the aggregate and for each Class of Certificates,
the aggregate amount of Applied Realized Loss Amounts incurred
during the preceding calendar month and aggregate Applied Realized
Loss Amounts through such Distribution Date;
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(xv) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the
Certificateholders with respect to Unpaid Interest Amounts;
(xvi) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xvii) the Prepayment Premiums collected by or paid by the
Servicers;
(xviii) the percentage equal to the aggregate realized
losses divided by the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date;
(xix) the amount distributed on the Class X and Class P
Certificates;
(xx) the amount of any Subsequent Recoveries for such
Distribution Date; and
(xxi) updated Mortgage Loan information, such as weighted
average interest rate, and weighted average remaining term.
(b) The Securities Administrator's responsibility for
providing the above statement to the Certificateholders, each Rating Agency,
the Trustee and the Depositor is limited to the availability, timeliness and
accuracy of the information derived from the Master Servicer, the Servicers
and the Responsible Parties. The Securities Administrator shall provide the
above statement via the Securities Administrator's internet website.
Assistance in using the website can be obtained by calling the Securities
Administrator's investor relations desk at (000) 000-0000. The Securities
Administrator will also make a paper copy of the above statement available
upon request.
(c) Upon request, within a reasonable period of time after
the end of each calendar year, the Securities Administrator shall cause to be
furnished to each Person who at any time during the calendar year was a
Certificateholder, a statement containing the information set forth in clauses
(a)(i), (a)(ii), (a)(iii) and (a)(vii) of this Section 4.02 aggregated for
such calendar year or applicable portion thereof during which such Person was
a Certificateholder. Such obligation of the Securities Administrator shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Securities Administrator pursuant to any
requirements of the Code as from time to time in effect.
The Securities Administrator shall be entitled to rely on
information provided by third parties for purposes of preparing the foregoing
report, but shall not be responsible for the accuracy of such information.
Section 4.03 Allocation of Applied Realized Loss Amounts.
Any Applied Realized Loss Amounts will be allocated to the most junior Class
of Subordinated Certificates then outstanding in reduction of the Class
Certificate Balance thereof. In the event, Applied Realized Loss Amounts are
allocated to any Class of Certificates, their Class Certificate Balance shall
be reduced by the amount so allocated and no funds shall be distributed with
respect to the written down amounts or with respect to interest or Basis Risk
Carry Forward Amounts on the written down amounts on that Distribution Date or
any future Distribution Dates, even if funds are otherwise available therefor.
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Notwithstanding the foregoing, the Class Certificate Balance
of each Class of Subordinated Certificates that has been previously reduced by
Applied Realized Loss Amounts will be increased, in the order of seniority, by
the amount of the Subsequent Recoveries (but not in excess of the Applied
Realized Loss Amount allocated to the applicable Class of Subordinated
Certificates).
Section 4.04 Certain Matters Relating to the Determination
of LIBOR. LIBOR shall be calculated by the Securities Administrator in
accordance with the definition of "LIBOR." Until all of the LIBOR Certificates
are paid in full, the Securities Administrator will at all times retain at
least four Reference Banks for the purpose of determining LIBOR with respect
to each LIBOR Determination Date. The Securities Administrator initially shall
designate the Reference Banks (after consultation with the Depositor). Each
"Reference Bank" shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, shall not control, be
controlled by, or be under common control with, the Securities Administrator
and shall have an established place of business in London. If any such
Reference Bank should be unwilling or unable to act as such or if the
Securities Administrator should terminate its appointment as Reference Bank,
the Securities Administrator shall promptly appoint or cause to be appointed
another Reference Bank (after consultation with the Depositor). The Securities
Administrator shall have no liability or responsibility to any Person for (i)
the selection of any Reference Bank for purposes of determining LIBOR or (ii)
any inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for
each Interest Accrual Period shall be determined by the Securities Administrator
on each LIBOR Determination Date so long as the LIBOR Certificates are
outstanding on the basis of LIBOR and the respective formulae appearing in
footnotes corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement. The Securities Administrator shall
not have any liability or responsibility to any Person for its inability,
following a good faith reasonable effort, to obtain quotations from the
Reference Banks or to determine the arithmetic mean referred to in the
definition of LIBOR, all as provided for in this Section 4.04 and the definition
of LIBOR. The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Securities Administrator shall (in the absence of manifest
error) be final, conclusive and binding upon each Holder of a Certificate and
the Trustee.
Section 4.05 Supplemental Interest Trust. On the Closing
Date, the Securities Administrator on behalf of the Trustee shall establish
and maintain a separate non-interest bearing trust (the "Supplemental Interest
Trust") to which the Securities Administrator will transfer and assign the
Interest Rate Swap Agreement. The Supplemental Interest Trust shall be an
Eligible Account, and funds on deposit therein shall be held separate and
apart from, and shall not be commingled with, any other moneys, including,
without limitation, other moneys of the Securities Administrator held pursuant
to this Agreement.
On any Distribution Date, Swap Termination Payments, Net Swap
Payment Amounts owed to the Swap Provider and Net Swap Receipt Amounts for that
Distribution Date will be deposited into the Supplemental Interest Trust. Funds
in the Supplemental Interest Trust will be distributed in the following order of
priority:
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(i) to the Swap Provider, the sum of (x) all Net Swap
Payment Amounts and (y) any Swap Termination Payment, other than a
Defaulted Swap Termination Payment, to the Swap Provider, if any,
owed for that Distribution Date;
(ii) to the Certificateholders, to pay Accrued Certificate
Interest and, if applicable, any Unpaid Interest Amounts as
described in clause (i) of "--Priorities of Distributions" above,
to the extent unpaid from other Available Funds;
(iii) to the Certificateholders, to pay principal as
described in clause (ii)(A) and clause (ii)(B) of "--Priorities of
Distributions" above, but only to the extent necessary to maintain
the Overcollateralized Amount at the Specified Overcollateralized
Amount, after giving effect to payments and distributions from
other Available Funds;
(iv) to the Certificateholders, to pay Unpaid Interest
Amounts and Basis Risk Carry Forward Amounts as described in
clause (iii) of "--Priorities of Distributions" above, to the
extent unpaid from other Available Funds (including funds on
deposit in the Excess Reserve Fund Account);
(v) to the Swap Provider, any Defaulted Swap Termination
Payment owed to the Swap Provider for that Distribution Date; and
(vi) to the holders of the Class X Certificates, any
remaining amounts.
Upon termination of the Trust, any amounts remaining in the
Supplemental Interest Trust shall be distributed pursuant to the priorities set
forth in this Section 4.05.
The Securities Administrator shall account for the
Supplemental Interest Trust as an asset of a grantor trust under subpart E, Part
I of subchapter J of the Code and not as an asset of any Trust REMIC created
pursuant to this Agreement. The beneficial owners of the Supplemental Interest
Trust are the Class X Certificateholders. For federal income tax purposes, Net
Swap Payment Amounts and Swap Termination Payments payable to the Swap Provider
shall be deemed to be paid to the Supplemental Interest Trust first, by the
Holder of the Class X Certificates and second, other than any Defaulted Swap
Termination Payment, from the Upper-Tier REMIC by the Holders of the applicable
Class or Classes of LIBOR Certificates as and to the extent provided in Section
8.14.
Any Basis Risk Carry Forward Amounts (defined solely for this
purpose as any excess of monies received for such Distribution Date over the
REMIC Cap) distributed by the Securities Administrator to the LIBOR
Certificateholders shall be accounted for by the Securities Administrator, for
federal income tax purposes, as amounts paid first to the Holders of the Class X
Certificates and (to the extent remaining after payments to the Swap Provider)
then to the respective Class or Classes of LIBOR Certificates. In addition, the
Securities Administrator shall account for the rights of Holders of each Class
of LIBOR Certificates to receive payments of Basis Risk Carry Forward Amounts
(defined solely for this purpose as any excess of monies received for such
Distribution Date over the REMIC Cap) from the Supplemental Interest Trust
(along with Basis Risk Carry Forward Amounts (defined solely for this purpose as
any excess of monies received for such Distribution Date over the REMIC Cap)
payable from the Excess
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Reserve Fund Account) as rights in a separate limited recourse interest rate
cap contract written by the Class X Certificateholders in favor of Holders of
each such Class.
The Supplemental Interest Trust shall be an "outside reserve
fund" for federal income tax purposes and will not be an asset of any Trust
REMIC. Furthermore, the Holders of the Class X Certificates shall be the
beneficial owners of the Supplemental Interest Trust for all federal income tax
purposes, and shall be taxable on all income earned thereon.
Section 4.06 Trust's Obligations under the Interest Rate
Swap Agreement; Replacement and Termination of the Interest Rate Swap
Agreement.
(a) Upon the Securities Administrator obtaining actual
knowledge of the rating of the Swap Provider falling below the Required Hedge
Counterparty Rating (as defined in the Interest Rate Swap Agreement), the
Securities Administrator, acting at the written direction of the Depositor,
shall attempt to negotiate an ISDA Credit Support Annex (as defined in the
Interest Rate Swap Agreement) with the Swap Provider that meets the terms of
the Interest Rate Swap Agreement. If an ISDA Credit Support Annex is
negotiated, the Securities Administrator, acting at the written direction of
the Depositor, shall set up an account in accordance with Section 3.01(c) to
hold cash or other eligible investments pledged under such ISDA Credit Support
Annex. Any cash or other eligible investments pledged under an ISDA Credit
Support Annex shall not be part of the Distribution Account, the Excess
Reserve Fund Account or the Supplemental Interest Trust unless they are
applied in accordance with such ISDA Credit Support Annex to make a payment
due to the Trust pursuant to the Interest Rate Swap Agreement.
(b) Upon the Securities Administrator obtaining actual
knowledge of an Event of Default (as defined in the Interest Rate Swap
Agreement) or Termination Event (as defined in the Interest Rate Swap
Agreement) for which the Trust has the right to designate an Early Termination
Date (as defined in the Interest Rate Swap Agreement), the Securities
Administrator will act at the written direction of the Depositor as to whether
it will designate an Early Termination Date; provided, however, that the
Securities Administrator, on behalf of the Trust, shall provide written notice
to each Rating Agency following the Event of Default or Termination Event.
Upon the termination of the Interest Rate Swap Agreement under the
circumstances contemplated by this Section 4.06(b), the Securities
Administrator, on behalf of the Trust, shall use its reasonable best efforts
to enforce the rights of the Trust and the Trustee thereunder as may be
permitted by the terms of the Interest Rate Swap Agreement and consistent with
the terms hereof, and shall apply the proceeds of any such efforts to enter
into a replacement interest rate swap agreement with another swap provider. To
the extent such replacement interest rate swap agreement can be entered into,
any termination payments received by the Trust in respect of the terminated
interest rate swap agreement shall be used, to the extent necessary, by the
Trust for the purpose of entering into such replacement interest rate swap
agreement.
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ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral
multiples in excess thereof (except that one Certificate in each Class may be
issued in a different amount) and aggregate denominations per Class set forth
in the Preliminary Statement.
The Depositor hereby directs the Securities Administrator to
register the Class X and Class P Certificates in the name of the Depositor or
its designee. On a date as to which the Depositor notifies the Securities
Administrator, the Depositor hereby directs the Securities Administrator to
transfer the Class X and Class P Certificates in the name of the NIM Trustee
or such other name or names as the Depositor shall request, and to deliver the
Class X and Class P Certificates to the NIM Trustee, or to such other person
or persons as the Depositor shall request.
Subject to Section 11.02 respecting the final distribution
on the Certificates, on each Distribution Date the Securities Administrator
shall make distributions to each Certificateholder of record on the preceding
Record Date either (x) by wire transfer in immediately available funds to the
account of such holder at a bank or other entity having appropriate facilities
therefor as directed by that Certificateholder by written wire instructions
provided to the Securities Administrator or (y), in the event that no wire
instructions are provided to the Securities Administrator, by check mailed by
first class mail to such Certificateholder at the address of such holder
appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile
signature on behalf of the Securities Administrator by an authorized officer.
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time such signatures were affixed, authorized to sign on behalf
of the Securities Administrator shall bind the Securities Administrator,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of any such Certificates
or did not hold such office at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless authenticated by the Securities Administrator by manual
signature, and such authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly executed
and delivered hereunder. All Certificates shall be dated the date of their
authentication. On the Closing Date, the Securities Administrator shall
authenticate the Certificates to be issued at the direction of the Depositor,
or any affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer
and Exchange of Certificates. (a) The Securities Administrator shall maintain,
in accordance with the provisions of Section 5.06, a Certificate Register for
the Trust Fund in which, subject to the provisions of subsections (b) and (c)
below and to such reasonable regulations as it may prescribe, the Securities
Administrator shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. Upon surrender for
registration of transfer of any Certificate, the Securities Administrator
shall execute and deliver, in the name of the designated
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transferee or transferees, one or more new Certificates of the same Class and
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute, authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
holder thereof or his attorney duly authorized in writing. In the event, the
Depositor or an Affiliate transfers the Class X Certificates, or a portion
thereof, to another Affiliate, it shall notify the Securities Administrator in
writing of the affiliated status of the transferee. The Securities
Administrator shall have no liability regarding the lack of notice with
respect thereto.
No service charge to the Certificateholders shall be made for
any registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Securities
Administrator in accordance with the Securities Administrator's customary
procedures.
(b) No transfer of a Private Certificate shall be made
unless such transfer is made pursuant to an effective registration statement
under the Securities Act and any applicable state securities laws or is exempt
from the registration requirements under said Act and such state securities
laws. Except with respect to (i) the initial transfer of the Class X or Class
P Certificates on the Closing Date, (ii) the transfer of the Class X or Class
P Certificates to the NIM Issuer or the NIM Trustee, or (iii) a transfer of
the Class X or Class P Certificates to the Depositor or any Affiliate of the
Depositor, in the event that a transfer of a Private Certificate which is a
Physical Certificate is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
transfer shall certify to the Securities Administrator in writing the facts
surrounding the transfer in substantially the form set forth in Exhibit H (the
"Transferor Certificate") and either (i) there shall be delivered to the
Securities Administrator a letter in substantially the form of Exhibit I (the
"Rule 144A Letter") or (ii) there shall be delivered to the Securities
Administrator at the expense of the transferor an Opinion of Counsel that such
transfer may be made without registration under the Securities Act. In the
event that a transfer of a Private Certificate which is a Book-Entry
Certificate is to be made in reliance upon an exemption from the Securities
Act and such laws, in order to assure compliance with the Securities Act and
such laws, the Certificateholder desiring to effect such transfer will be
deemed to have made as of the transfer date each of the certifications set
forth in the Transferor Certificate in respect of such Certificate and the
transferee will be deemed to have made as of the transfer date each of the
certifications set forth in the Rule 144A Letter in respect of such
Certificate, in each case as if such Certificate were evidenced by a Physical
Certificate. The
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Depositor shall provide to any Holder of a Private Certificate and any
prospective transferee designated by any such Holder, information regarding
the related Certificates and the Mortgage Loans and such other information as
shall be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by
Rule 144A. The Trustee and the Securities Administrator shall cooperate with
the Depositor in providing the Rule 144A information referenced in the
preceding sentence, including providing to the Depositor such information
regarding the Certificates, the Mortgage Loans and other matters regarding the
Trust Fund as the Depositor shall reasonably request to meet its obligation
under the preceding sentence. Each Holder of a Private Certificate desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee
and the Depositor and each Servicer against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal
and state laws.
Except with respect to (i) the initial transfer of the Class X
or Class P Certificates on the Closing Date, (ii) the transfer of the Class X or
Class P Certificates to the NIM Issuer or the NIM Trustee or (iii) a transfer of
the Class X or Class P Certificates to the Depositor or any Affiliate of the
Depositor, no transfer of an ERISA-Restricted Certificate shall be made unless
the Securities Administrator shall have received either (i) a representation
from the transferee of such Certificate acceptable to and in form and substance
satisfactory to the Securities Administrator (in the event such Certificate is a
Private Certificate or a Residual Certificate, such requirement is satisfied
only by the Securities Administrator's receipt of a representation letter from
the transferee substantially in the form of Exhibit G), to the effect that such
transferee is not an employee benefit plan or arrangement subject to Section 406
of ERISA, a plan subject to Section 4975 of the Code or a plan subject to any
Federal, state or local law ("Similar Law") materially similar to the foregoing
provisions of ERISA or the Code, nor a person acting on behalf of any such plan
or arrangement nor using the assets of any such plan or arrangement to effect
such transfer (each such investor a "Plan"), (ii) in the case of an
ERISA-Restricted Certificate (other than a Residual Certificate) that has been
the subject of an ERISA-Qualifying Underwriting, a representation that the
purchaser is an insurance company that is purchasing such Certificates with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption ("PTCE")
95-60) and that the purchase and holding of such Certificates satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60 or
(iii) in the case of any ERISA-Restricted Certificate presented for registration
in the name of an employee benefit plan subject to Title I of ERISA, a plan or
arrangement subject to Section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a plan subject to Similar Law, or a trustee of any
such plan or any other person acting on behalf of any such plan or arrangement
or using such plan's or arrangement's assets, an Opinion of Counsel satisfactory
to the Securities Administrator and the Depositor, which Opinion of Counsel
shall not be an expense of the Trustee, the Depositor, the Securities
Administrator or the Trust Fund, addressed to the Securities Administrator and
the Depositor, to the effect that the purchase and holding of such
ERISA-Restricted Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code or
any Similar Law and will not subject the Trustee, the Depositor, the Master
Servicer, any other servicer or the Securities Administrator to any obligation
in addition to those expressly undertaken in this Agreement or to any liability.
For purposes of the preceding sentence, with respect to an ERISA-Restricted
Certificate that is not a Private
72
Certificate or a Residual Certificate, in the event the representation letter
referred to in the preceding sentence is not furnished, such representation
shall be deemed to have been made to the Securities Administrator by the
transferee's (including an initial acquirer's) acceptance of the
ERISA-Restricted Certificates. In the event that such representation is
violated, or any attempt is made to transfer to a plan or arrangement subject
to Section 406 of ERISA, a plan subject to Section 4975 of the Code or a plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, without such
Opinion of Counsel, such attempted transfer or acquisition shall be void and
of no effect.
During the period the Supplemental Interest Trust is in
effect, no transfer of a Certificate shall be made unless the Securities
Administrator shall have received either a representation from the transferee of
such Certificate acceptable to and in form and substance satisfactory to the
Securities Administrator to the effect that such transferee is not a Plan, or
(ii) a representation that the purchase and holding of the Certificate satisfy
the requirements for exemptive relief under XXXX 00-00, XXXX 00-0, XXXX 00-00,
XXXX 00-00, XXXX 96-23 or a similar exemption, or in the case of a Plan subject
to Similar Law, will not constitute a non-exempt violation of such Similar Law.
In the event such a representation letter is not delivered, one of the foregoing
representations, as appropriate, shall be deemed to have been made by the
transferee's (including an initial acquirer's) acceptance of the Certificate. In
the event that such representation is violated, such transfer or acquisition
shall be void and of no effect. The Residual Certificates may not be sold to any
employee benefit plan subject to Title I of ERISA, any plan subject to Section
4975 of the Code, or any plan subject to any Similar Law or any person investing
on behalf of or with plan assets of such plan.
The Securities Administrator shall have no duty to monitor
transfers of beneficial interests in any Book-Entry Certificate and shall not be
under liability to any Person for any registration of transfer of any ERISA
Restricted Certificate that is in fact not permitted by this Section 5.02(b) or
for making any payments due on such Certificate to the Holder thereof or taking
any other action with respect to such Holder under the provisions of this
Agreement so long as the transfer was registered by the Securities Administrator
in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions, and the rights of each Person acquiring any Ownership
Interest in a Residual Certificate are expressly subject to the following
provisions:
(i) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted Transferee and
shall promptly notify the Securities Administrator of any change
or impending change in its status as a Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Securities Administrator shall not register the Transfer of any
Residual Certificate unless, in addition to the certificates
required to be delivered to the Securities Administrator under
subparagraph (b) above, the Securities
73
Administrator shall have been furnished with an affidavit (a
"Transfer Affidavit") of the initial owner or the proposed
transferee in the form attached hereto as Exhibit I;
(iii) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (A) to obtain a
Transfer Affidavit from any other Person to whom such Person
attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person
for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Residual Certificate and (C) not
to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual
Certificate to any other Person if it has actual knowledge that
such Person is not a Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions
of this Section 5.02(c) shall be absolutely null and void and
shall vest no rights in the purported Transferee. If any purported
transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of registration of Transfer
of such Residual Certificate. Neither the Securities Administrator
nor the Trustee shall have any liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact
not permitted by Section 5.02(b) and this Section 5.02(c) or for
making any payments due on such Certificate to the Holder thereof
or taking any other action with respect to such Holder under the
provisions of this Agreement. The Securities Administrator shall
be entitled but not obligated to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee
at the time it became a Holder or, at such subsequent time as it
became other than a Permitted Transferee, all payments made on
such Residual Certificate at and after either such time. Any such
payments so recovered by the Securities Administrator shall be
paid and delivered by the Securities Administrator to the last
preceding Permitted Transferee of such Certificate; and
(v) The Depositor shall use its best efforts to make
available, upon receipt of written request from the Securities
Administrator, all information necessary to compute any tax
imposed under Section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any
Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set
forth in this Section 5.02(c) shall cease to apply (and the applicable portions
of the legend on a Residual Certificate may be deleted) with respect to
Transfers occurring after delivery to the Securities Administrator of an Opinion
of Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund,
the Trustee, or the Securities Administrator, to the effect that the elimination
of such restrictions will not cause any Trust REMIC to fail to qualify as a
REMIC at any time that the Certificates are outstanding or result in the
imposition of any tax on the Trust Fund, a Certificateholder or another Person.
Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel furnished to the Securities Administrator, is reasonably
necessary (a) to ensure that the record ownership of, or any beneficial interest
in, a Residual Certificate is not transferred,
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directly or indirectly, to a Person that is not a Permitted Transferee and (b)
to provide for a means to compel the Transfer of a Residual Certificate which
is held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The preparation and delivery of all certificates and
opinions referred to above in this Section 5.02 in connection with transfer
shall be at the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates
shall at all times remain registered in the name of the Depository or its
nominee and at all times: (i) registration of the Certificates may not be
transferred by the Securities Administrator except to another Depository; (ii)
the Depository shall maintain book entry records with respect to the
Certificate Owners and with respect to ownership and transfers of such
Book-Entry Certificates; (iii) ownership and transfers of registration of the
Book-Entry Certificates on the books of the Depository shall be governed by
applicable rules established by the Depository; (iv) the Depository may
collect its usual and customary fees, charges and expenses from its Depository
Participants; (v) the Trustee and the Securities Administrator shall deal with
the Depository, Depository Participants and indirect participating firms as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and
requests and directions for and votes of such representatives shall not be
deemed to be inconsistent if they are made with respect to different
Certificate Owners; and (vi) the Securities Administrator and the Trustee may
rely and shall be fully protected in relying upon information furnished by the
Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to indirect participating firms and
persons shown on the books of such indirect participating firms as direct or
indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the
Securities Administrator in writing that the Depository is no longer willing or
able to properly discharge its responsibilities as Depository, and (ii) the
Securities Administrator or the Depositor is unable to locate a qualified
successor, or (y) the Depositor notifies the Depository of its intent to
terminate the book entry system through the Depository, the Depository
Participants holding beneficial interests in the Book-Entry Certificates agree
to initiate such termination, the Securities Administrator shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of definitive, fully registered Certificates (the
"Definitive Certificates") to Certificate Owners requesting the same. Upon
surrender to the Securities Administrator of the related Class of Certificates
by the Depository, accompanied by the instructions from the Depository for
registration, the Securities Administrator shall issue the Definitive
Certificates. Neither the Depositor nor the Securities Administrator shall be
liable for any delay in delivery of such instruction and each may conclusively
rely on, and shall be protected in relying on, such instructions. The Depositor
shall provide the Securities Administrator with an adequate inventory of
Certificates to facilitate the issuance and transfer of
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Definitive Certificates. Upon the issuance of Definitive Certificates all
references herein to obligations imposed upon or to be performed by the
Depository shall be deemed to be imposed upon and performed by the Securities
Administrator, to the extent applicable with respect to such Definitive
Certificates and the Securities Administrator shall recognize the Holders of
the Definitive Certificates as Certificateholders hereunder; provided, that
the Securities Administrator shall not by virtue of its assumption of such
obligations become liable to any party for any act or failure to act of the
Depository.
(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Securities
Administrator, duly executed by the Certificateholder or his attorney duly
authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be canceled and subsequently
disposed of by the Securities Administrator in accordance with its customary
practice. No service charge shall be made for any registration of transfer or
exchange of Private Certificates, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer or exchange of Private
Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate is surrendered to the
Securities Administrator, or the Securities Administrator receives evidence to
its satisfaction of the destruction, loss or theft of any Certificate and (b)
there is delivered to the Depositor, the Trustee and the Securities
Administrator such security or indemnity as may be required by them to hold
each of them harmless, then, in the absence of notice to the Securities
Administrator that such Certificate has been acquired by a protected
purchaser, the Securities Administrator shall execute, authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like Class, tenor and Percentage
Interest. In connection with the issuance of any new Certificate under this
Section 5.03, the Securities Administrator may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Securities Administrator) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time.
Section 5.04 Persons Deemed Owners. The Trustee, the
Depositor, the Securities Administrator and any agent of the Depositor, the
Securities Administrator or the Trustee may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions as provided in this Agreement and for all other
purposes whatsoever, and none of the Trustee, the Securities Administrator,
the Depositor or any agent of the Depositor, the Securities Administrator or
the Trustee shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Securities Administrator, (b) state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates, and
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(c) provide a copy of the communication which such Certificateholders propose
to transmit, or if the Depositor or a Servicer shall request such information
in writing from the Securities Administrator, then the Securities
Administrator shall, within ten (10) Business Days after the receipt of such
request, provide the Depositor, such Servicer or such Certificateholders at
such recipients' expense the most recent list of the Certificateholders of
such Trust Fund held by the Securities Administrator, if any. The Depositor
and every Certificateholder, by receiving and holding a Certificate, agree
that the Securities Administrator shall not be held accountable by reason of
the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 5.06 Maintenance of Office or Agency. The Securities
Administrator will maintain or cause to be maintained at its expense an office
or agency or agencies where Certificates may be surrendered for registration
of transfer or exchange. The Securities Administrator initially designates its
Corporate Trust Office for such purposes. The Securities Administrator will
give prompt written notice to the Certificateholders of any change in such
location of any such office or agency.
ARTICLE VI
THE DEPOSITOR
Section 6.01 Liabilities of the Depositor. The Depositor
shall be liable in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by it herein.
Section 6.02 Merger or Consolidation of the Depositor. The
Depositor will keep in full effect its existence, rights and franchises as a
corporation or federally chartered savings bank, as the case may be, under the
laws of the United States or under the laws of one of the states thereof and
will each obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or any
of the Mortgage Loans and to perform its respective duties under this
Agreement.
Any Person into which the Depositor may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor shall be a party, or any person succeeding to the business of the
Depositor, shall be the successor of the Depositor, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 6.03 Limitation on Liability of the Depositor and
Others. Neither the Depositor nor any of its directors, officers, employees or
agents shall be under any liability to the Certificateholders for any action
taken or for refraining from the taking of any action in good faith pursuant
to this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor or any such Person against any
breach of representations or warranties made by it herein or protect the
Depositor or any such Person from any liability which would otherwise be
imposed by reasons of willful misfeasance, bad faith or gross negligence in
the performance of duties or by reason of reckless disregard of obligations
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and duties hereunder. The Depositor and any director, officer, employee or
agent of the Depositor may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Depositor and any director, officer, employee
or agent of the Depositor shall be indemnified by the Trust Fund and held
harmless against any loss, liability or expense incurred in connection with
any audit, controversy or judicial proceeding relating to a governmental
taxing authority or any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or gross negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations and duties
hereunder. The Depositor shall not be under any obligation to appear in,
prosecute or defend any legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that the Depositor may in its discretion
undertake any such action (or direct the Trustee to undertake such actions for
the benefit of the Certificateholders) that it may deem necessary or desirable
in respect of this Agreement and the rights and duties of the parties hereto
and interests of the Trustee and the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund and the
Depositor (or the Trustee to the extent it has been directed by the Depositor
to undertake such actions) shall be entitled to be reimbursed therefor out of
the Distribution Account.
Section 6.04 Servicing Compliance Review. Promptly upon
receipt from each Servicer of its annual statement of compliance and
accountant's report described in the applicable Step 2 Assignment Agreement
the Master Servicer shall furnish a copy thereof to the Depositor. Promptly
after the Depositor's receipt thereof, the Depositor shall review the same
and, if applicable, consult with such Servicer as to the nature of any
defaults by such Servicer in the fulfillment of any of its Servicer's
obligations under the applicable Servicing Agreement.
Section 6.05 Option to Purchase Defaulted Mortgage Loans.
The Depositor shall have the option, but is not obligated, to purchase from
the Trust any Mortgage Loan that is ninety (90) days or more delinquent. The
purchase price therefor shall be 100% of the unpaid principal balance of such
Mortgage Loan, plus all related accrued and unpaid interest, and the amount of
any unreimbursed Servicing Advances made by the Servicers or the Master
Servicer related to the Mortgage Loan.
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default. If an Event of Default
described in any Servicing Agreement shall occur with respect to the related
Servicer then, and in each and every such case, so long as such Event of
Default shall not have been remedied, the Master Servicer may, or at the
direction of Certificateholders entitled to a majority of the Voting Rights
the Master Servicer shall, by notice in writing to the applicable Servicer
(with a copy to each Rating Agency), terminate all of the rights and
obligations of such Servicer under the applicable Servicing Agreement and in
and to the Mortgage Loans and the proceeds thereof. The Holders of
Certificates evidencing at least 66% of the Voting Rights of Certificates
affected by a Event of Default may waive such Event of Default; provided,
however, that (a) an Event of Default with
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respect to any Servicer's obligation to make Monthly Advances may be waived
only by all of the holders of the Certificates affected by such Event of
Default and (b) no such waiver is permitted that would materially adversely
affect any non consenting Certificateholder. On and after the receipt by such
Servicer of such written notice of termination, all authority and power of
such Servicer hereunder or under the applicable Servicing Agreement, whether
with respect to the Mortgage Loans or otherwise, shall pass to and be vested
in the Master Servicer. The Master Servicer is hereby authorized and empowered
to execute and deliver, on behalf of such Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise.
Section 7.02 Master Servicer to Act; Appointment of
Successor. Within 120 days after the Master Servicer gives, and the applicable
Servicer receives a notice of termination pursuant to Section 7.01, the Master
Servicer shall, subject to and to the extent provided in Section 7.03, and
subject to the rights of the Master Servicer to appoint a successor Servicer
pursuant to this Section 7.02, be the successor to the Servicer in its
capacity as servicer under the applicable Servicing Agreement and the
transactions set forth or provided for herein and in such Servicing Agreement
and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms and provisions of such
Servicing Agreement and applicable law including the obligation to make
Monthly Advances or Servicing Advances pursuant to such Servicing Agreement
(it being understood and agreed that if any Servicer fails to make an Advance,
the Master Servicer shall do so unless a determination has been made that such
Advance would constitute a Nonrecoverable Monthly Advance or a Nonrecoverable
Servicing Advance). As compensation therefor, the Master Servicer shall be
entitled to all funds relating to the Mortgage Loans that the Servicer would
have been entitled to charge to the Collection Account if the Servicer had
continued to act under the Servicing Agreement including, if the Servicer was
receiving the Servicing Fee at the Servicing Fee Rate set forth in the
Servicing Agreement (or, as set forth in the Mortgage Loan Schedule with
respect to the related Mortgage Loans, as applicable) such Servicing Fee and
the income on investments or gain related to the Collection Account.
Notwithstanding the foregoing, the Master Servicer may, if it
shall be unwilling to so act, or shall, if it is prohibited by applicable law
from making Monthly Advances and Servicing Advances pursuant to the applicable
Servicing Agreement, or if it is otherwise unable to so act, or, at the written
request of Certificateholders entitled to a majority of the Voting Rights,
appoint, or petition a court of competent jurisdiction to appoint, any
established mortgage loan servicing institution the appointment of which does
not adversely affect the then current rating of the Certificates by each Rating
Agency, as the successor to such Servicer under the applicable Servicing
Agreement in the assumption of all or any part of the responsibilities, duties
or liabilities of such Servicer. No such appointment of a successor to a
Servicer hereunder shall be effective until the Depositor shall have consented
thereto. Any successor to such Servicer shall be an institution which is a
Xxxxxx Xxx and Xxxxxxx Mac approved seller/servicer in good standing, which has
a net worth of at least $25,000,000, which is willing to service the Mortgage
Loans and which executes and delivers to the Depositor and the Master Servicer
an agreement accepting such delegation and assignment, containing an assumption
by such Person of the rights, powers, duties, responsibilities, obligations and
liabilities of such terminated Servicer,
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(other than liabilities of such terminated Servicer incurred prior to
termination of such Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; provided, that each Rating
Agency acknowledges that its rating of the Certificates in effect immediately
prior to such assignment and delegation will not be qualified or reduced, as a
result of such assignment and delegation. Pending appointment of a successor
to a Servicer hereunder, the Master Servicer, unless the Master Servicer is
prohibited by law from so acting, shall, subject to this Section 7.02, act in
such capacity as hereinabove provided. In connection with such appointment and
assumption, the Master Servicer may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it, the
Depositor and such successor shall agree; provided, however, that no such
compensation shall be in excess of the Servicing Fee Rate and amounts paid to
the Servicer from investments. The Master Servicer and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Neither the Master Servicer nor any other
successor to a Servicer shall be deemed to be in default hereunder by reason
of any failure to make, or any delay in making, any distribution hereunder or
any portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure of
the predecessor Servicer to deliver or provide, or any delay in delivering or
providing, any cash, information, documents or records to it.
Any successor Servicer shall give notice to the Mortgagors of
such change of Servicer, in accordance with applicable federal and state law,
and shall, during the term of its service as servicer, maintain in force the
policy or policies that each Servicer is required to maintain pursuant to the
applicable Servicing Agreement.
Notwithstanding the foregoing, the Master Servicer may not
terminate a Servicer without cause.
Section 7.03 Master Servicer to Act as Servicer. In the
event that a Servicer shall for any other reason no longer be the Servicer,
the Master Servicer or another successor Servicer, shall thereupon assume all
of the rights and obligations of the predecessor Servicer hereunder arising
thereafter pursuant to Section 7.02.
Section 7.04 Notification to Certificateholders. (a) Upon
any termination of or appointment of a successor to a Servicer, the Securities
Administrator shall give prompt written notice thereof to Certificateholders
and to each Rating Agency.
(b) Promptly after the occurrence of any Event of Default,
the Securities Administrator shall transmit by mail to all Certificateholders
and each Rating Agency notice of each such Event of Default hereunder known to
the Securities Administrator, unless such Event of Default shall have been
cured or waived.
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIANS
Section 8.01 Duties of the Trustee and the Custodians. The
Trustee, before the occurrence of a Master Servicer Event of Default and after
the curing of all Master Servicer
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Events of Default that may have occurred, shall undertake to perform such
duties and only such duties as are specifically set forth in this Agreement.
In case a Master Servicer Event of Default has occurred and remains uncured,
the Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee and the Custodians, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee or the Custodians, as applicable,
that are specifically required to be furnished pursuant to any provision of this
Agreement shall examine them to determine whether on their face they are in the
form required by this Agreement, or with respect to the documents in the
respective Custodial Files whether they satisfy the review criteria set forth in
Section 2.02. Neither the Trustee nor the Custodians shall be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve
the Trustee or the Custodians from liability for its own negligent action, its
own negligent failure to act or its own bad faith or willful misfeasance;
provided, however, that:
(a) unless a Master Servicer Event of Default of which a
Responsible Officer of the Trustee obtains actual knowledge has occurred and
is continuing, the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of the duties and obligations specifically
set forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee, and the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Agreement which it believed in good
faith to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it is finally proven that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken, suffered, or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Certificates evidencing not
less than 25% of the Voting Rights of Certificates relating to the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee under
this Agreement.
Section 8.02 [Reserved].
Section 8.03 Certain Matters Affecting the Trustee and the
Custodians. Except as otherwise provided in Section 8.01:
(a) the Trustee and the Custodians may request and rely upon
and shall be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, Opinion
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of Counsel, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond
or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties and the Trustee and the
Custodians shall have no responsibility to ascertain or confirm the
genuineness of any signature of any such party or parties;
(b) before taking any action under this Agreement, the
Trustee and the Custodians may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(c) the Trustee and the Custodians shall not be liable for
any action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(d) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond
or other paper or document, unless requested in writing so to do by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to
each Class of Certificates; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of
the Trustee, not assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require indemnity satisfactory to the
Trustee against such cost, expense or liability as a condition to taking any
such action. The reasonable expense of every such examination shall be paid by
the applicable Servicer or, if paid by the Trustee, shall be repaid by the
Servicer upon demand from the applicable Servicer's own funds;
(e) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, accountants or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agents, accountants or
attorneys appointed with due care by it hereunder;
(f) neither the Trustee nor the Custodians shall be required
to risk or expend its own funds or otherwise incur any financial liability in
the performance of any of its duties or in the exercise of any of its rights
or powers hereunder if it shall have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to it against such risk or
liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any
investment of funds pursuant to this Agreement (other than as issuer of the
investment security);
(h) unless a Responsible Officer of the Trustee has actual
knowledge of the occurrence of a Master Servicer Event of Default or an Event
of Default, the Trustee shall not be deemed to have knowledge of a Master
Servicer Event of Default or an Event of Default, until a Responsible Officer
of the Trustee shall have received written notice thereof;
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(i) the Trustee shall be under no obligation to exercise any
of the trusts, rights or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Certificateholders, pursuant to
this Agreement, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which may be incurred therein or thereby;
(j) the right of the Trustee to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of such act;
(k) the Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust Fund created hereby or the
powers granted hereunder;
(l) notwithstanding anything to the contrary in any
Servicing Agreement, the Trustee shall not consent to a Servicer's request of
assigning the Servicing Agreement or the servicing rights thereunder to any
other party;
(m) the Trustee and the Custodians shall not be accountable
and shall have no liability for any acts or omissions by the Securities
Administrator, the Master Servicer or other party hereto;
(n) in no event shall BNY as a Custodian, Deutsche Bank
in its capacity as Trustee and a Custodian hereunder, or U.S. Bank, as a
Custodian hereunder, be liable for special, indirect or consequential damages;
(o) the Securities Administrator is authorized and
directed to execute the Interest Rate Swap Agreement and;
(p) the Trustee is authorized and directed to execute the
Primary Mortgage Insurance Policy, if applicable, on behalf of the Trust.
Section 8.04 Trustee and Custodians Not Liable for
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates shall be taken as the statements of the Depositor and neither the
Trustee nor the Custodians assumes any responsibility for their correctness.
The Trustee and the Custodians make no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan
or related document. Neither the Trustee nor the Custodians shall be
accountable for the use or application by the Depositor, the Master Servicer,
any Servicer or the Securities Administrator of any funds paid to the
Depositor, the Master Servicer, any Servicer or the Securities Administrator
in respect of the Mortgage Loans or deposited in or withdrawn from the
Collection Account or the Distribution Account by the Depositor, the Master
Servicer, any Servicer, or the Securities Administrator.
The Trustee shall have no responsibility (i) for filing or
recording any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection of any security interest
or lien granted to it hereunder (unless the Trustee shall have become and
remains the successor Master Servicer), (ii) to see to any insurance (unless the
Trustee shall have become the successor Master Servicer) or (iii) to confirm or
verify the
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contents of any reports or certificates of the Servicers, Securities
Administrator or Master Servicer delivered to the Trustee pursuant to this
Agreement believed by the Trustee to be genuine and to have been signed or
presented by the proper party or parties.
The Securities Administrator executes the Certificates not in
its individual capacity but solely as Securities Administrator of the Trust Fund
created by this Agreement, in the exercise of the powers and authority conferred
and vested in it by this Agreement. Each of the undertakings and agreements made
on the part of the Securities Administrator on behalf of the Trust Fund in the
Certificates is made and intended not as a personal undertaking or agreement by
the Securities Administrator but is made and intended for the purpose of binding
only the Trust Fund.
Section 8.05 Trustee May Own Certificates. The Trustee in
its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights as it would have if it were not the Trustee.
Section 8.06 Trustee's Fees and Expenses. As compensation
for its activities under this Agreement, the Trustee shall be paid an on-going
monthly or annual fee, as applicable, by the Securities Administrator pursuant
to a separate agreement. The Trustee shall have no lien on the Trust Fund for
the payment of such fees. The Trustee shall be entitled to be reimbursed, from
funds on deposit in the Distribution Account, amounts sufficient to indemnify
and hold harmless the Trustee and any director, officer, employee, or agent of
the Trustee against any loss, liability, or expense (including reasonable
attorneys' fees) incurred:
(i) in connection with any claim or legal action relating to:
(a) this Agreement;
(b) the Mortgage Loans or the Certificates; and
(ii) the performance of any of the Trustee's duties under this
Agreement; or
(iii) incurred by reason of any action of the Trustee taken at the
direction of the Certificateholders;
other than, in each case, any loss, liability, or expense (i) resulting from any
breach of any Servicer's obligations in connection with its Servicing Agreement
for which that Servicer has performed its obligation to indemnify the Trustee
pursuant to Servicing Agreement, (ii) resulting from any breach of the
Responsible Party's obligations in connection with any Sale Agreement for which
it has performed its obligation to indemnify the Trustee pursuant to the Sale
Agreement, (iii) resulting from any breach of the Master Servicer's obligations
hereunder for which the Master Servicer has performed its obligation to
indemnify the Trustee pursuant to this Agreement or (iv) incurred because of
willful misfeasance, bad faith, or negligence in the performance of any of the
Trustee's duties under this Agreement. This indemnity shall survive the
termination of this Agreement or the resignation or removal of the Trustee under
this Agreement. Without limiting the foregoing, except for any expense,
disbursement, or advance arising from the Trustee's negligence, bad faith, or
willful misfeasance, the Trust Fund shall pay
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or reimburse the Trustee, for all reasonable expenses, disbursements, and
advances incurred or made by the Trustee in accordance with this Agreement
with respect to:
(A) the reasonable compensation, expenses, and
disbursements of its counsel not associated with the closing
of the issuance of the Certificates; and
(B) the reasonable compensation, expenses, and
disbursements of any accountant, engineer, or appraiser that
is not regularly employed by the Trustee, to the extent that
the Trustee must engage them to perform services under this
Agreement.
Except as otherwise provided in this Agreement, the Trustee
shall not be entitled to payment or reimbursement for any routine ongoing
expenses incurred by the Trustee in the ordinary course of its duties as Trustee
under this Agreement or for any other expenses.
Section 8.07 Eligibility Requirements for the Trustee. The
Trustee hereunder shall at all times be a corporation, banking association or
other association organized and doing business under the laws of a state or
the United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and the
appointment of which would not cause any of the Rating Agencies to reduce or
withdraw their respective then current ratings of the Certificates (or having
provided such security from time to time as is sufficient to avoid such
reduction) as evidenced in writing by each Rating Agency. If such corporation
or association publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 8.07 the combined capital and
surplus of such corporation or association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with this Section 8.07, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.08. The entity serving as
Trustee may have normal banking and trust relationships with the Depositor and
its affiliates or with the Servicer and its affiliates; provided, however,
that such entity cannot be an affiliate of the Depositor or of any Servicer
other than the Trustee in its role as successor to the Master Servicer.
Section 8.08 Resignation and Removal of the Trustee. The
Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice of resignation to the Depositor, the Master
Servicer, the Securities Administrator and each Rating Agency not less than
sixty (60) days before the date specified in such notice, when, subject to
Section 8.09, such resignation is to take effect, and acceptance by a
successor trustee in accordance with Section 8.09 meeting the qualifications
set forth in Section 8.07. If no successor trustee meeting such qualifications
shall have been so appointed and have accepted appointment within thirty (30)
days after the giving of such notice or resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor trustee.
If at any time (i) the Trustee shall cease to be eligible in
accordance with Section 8.07 and shall fail to resign after written request
thereto by the Depositor, (ii) the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the
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Trustee or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, (iii)(A) a tax is
imposed with respect to the Trust Fund by any state in which the Trustee or
the Trust Fund is located and (B) the imposition of such tax would be avoided
by the appointment of a different trustee, or (iv) the Trustee fails to comply
with its obligations under the last sentence of Section 9.04 in the preceding
paragraph, Section 8.10 or Article XIII and such failure is not remedied
within the lesser of ten (10) calendar days or such period in which the
applicable Exchange Act Report can be timely filed (without taking into
account any extensions), then, in the case of clauses (i) through (iv), the
Depositor may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, one copy of which shall be delivered to the Trustee
and one copy to the successor trustee.
The Holders of Certificates entitled to a majority of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in duplicate, signed by such Holders or
their attorneys in fact duly authorized, one complete set of which shall be
delivered to the Trustee so removed and one complete set to the successor so
appointed. The successor trustee shall notify each Rating Agency of any removal
of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.08 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.09.
Section 8.09 Successor Trustee. Any successor trustee
appointed as provided in Section 8.08 shall execute, acknowledge and deliver
to the Depositor and to its predecessor trustee an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The Depositor and the
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in
this Section 8.09 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.07 and its appointment does not adversely affect the
then current rating of the Certificates and has provided to the Depositor in
writing and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a replacement
Trustee.
Upon acceptance of appointment by a successor trustee as
provided in this Section 8.09, the Depositor shall mail notice of the succession
of such trustee hereunder to all Holders of Certificates and the Custodians. If
the Depositor fails to mail such notice within ten (10) days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Depositor.
Section 8.10 Merger or Consolidation of the Trustee or the
Custodians. Any corporation or association into which the Trustee or the
Custodians, as applicable, may be
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merged or converted or with which it may be consolidated or any corporation or
association resulting from any merger, conversion or consolidation to which
the Trustee or the Custodians, as applicable, shall be a party, or any
corporation or association succeeding to the business of the Trustee or the
Custodians, as applicable, or any corporation or association to which all or
substantially all of the corporate trust business of the Trustee or the
Custodians, as applicable, may be sold or otherwise transferred, shall be the
successor of the Trustee or the Custodians, as applicable, hereunder;
provided, that such corporation or association shall be eligible under Section
8.07 without the execution or filing of any paper or further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding.
Section 8.11 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time
be located, the Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons to act as co-trustee or co-trustees
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity and for the benefit of the Certificateholders, such title to the
Trust Fund or any part thereof, whichever is applicable, and, subject to the
other provisions of this Section 8.11, such powers, duties, obligations,
rights and trusts as the Trustee may consider appropriate. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.09 and no notice to Certificateholders
of the appointment of any co-trustee or separate trustee shall be required
under Section 8.09.
Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) to the extent necessary to effectuate the purposes of
this Section 8.11, all rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for the obligation of the Trustee (as
successor Master Servicer) under this Agreement to advance funds on behalf of
the Master Servicer, shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act or acts are
to be performed (whether as Trustee hereunder or as successor to the Master
Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the applicable Trust Fund or
any portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction of
the Trustee;
(b) no trustee hereunder shall be held personally liable
because of any act or omission of any other trustee hereunder and such
appointment shall not, and shall not be deemed to, constitute any such
separate trustee or co-trustee as agent of the Trustee;
(c) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee; and
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(d) the Trust Fund, and not the Trustee, shall be liable for
the payment of reasonable compensation, reimbursement and indemnification to
any such separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the separate trustees and
co-trustees, when and as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article VIII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee and a copy thereof given to the Master Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 8.12 Tax Matters. It is intended that the assets
with respect to which any REMIC election pertaining to the Trust Fund is to be
made, as set forth in the Preliminary Statement, shall constitute, and that
the conduct of matters relating to such assets shall be such as to qualify
such assets as, a "real estate mortgage investment conduit" as defined in, and
in accordance with, the REMIC Provisions. In furtherance of such intention,
the Securities Administrator covenants and agrees that it shall act as agent
(and the Securities Administrator is hereby appointed to act as agent) on
behalf of each REMIC described in the Preliminary Statement and that in such
capacity it shall:
(a) prepare and file, in a timely manner, a U.S. Real Estate
Mortgage Investment Conduit (REMIC) Income Tax Return (Form 1066 or any
successor form adopted by the Internal Revenue Service) and prepare and file
with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with
respect to each Trust REMIC containing such information and at the times and
in the manner as may be required by the Code or state or local tax laws,
regulations, or rules, and furnish to Certificateholders the schedules,
statements or information at such times and in such manner as may be required
thereby;
(b) within thirty (30) days of the Closing Date, apply for
an employer identification number from the Internal Revenue Service via Form
SS-4 or any other acceptable method for all tax entities and shall also
furnish to the Internal Revenue Service, on Form 8811 or as otherwise may be
required by the Code, the name, title, address, and telephone number of the
person that the holders of the Certificates may contact for tax information
relating thereto, together with such additional information as may be required
by such Form, and update such information at the time or times in the manner
required by the Code;
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(c) make an election that each Trust REMIC be treated as a
REMIC on the federal tax return for its first taxable year (and, if necessary,
under applicable state law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any
original issue discount using the prepayment assumption (as described in the
Prospectus Supplement);
(e) provide information necessary for the computation of tax
imposed on the transfer of a Residual Certificate to a Person that is not a
Permitted Transferee (a "Non Permitted Transferee"), or an agent (including a
broker, nominee or other middleman) of a Non Permitted Transferee, or a pass
through entity in which a Non Permitted Transferee is the record holder of an
interest (the reasonable cost of computing and furnishing such information may
be charged to the Person liable for such tax);
(f) to the extent that they are under its control, conduct
matters relating to such assets at all times that any Certificates are
outstanding so as to maintain the status of each Trust REMIC as a REMIC under
the REMIC Provisions;
(g) not knowingly or intentionally take any action or omit
to take any action that would cause the termination of the REMIC status of any
Trust REMIC created hereunder;
(h) pay, from the sources specified in the last paragraph of
this Section 8.12, the amount of any federal or state tax, including
prohibited transaction taxes as described below, imposed on any Trust REMIC
before its termination when and as the same shall be due and payable (but such
obligation shall not prevent the Securities Administrator or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Securities Administrator from withholding payment of
such tax, if permitted by law, pending the outcome of such proceedings);
(i) cause federal, state or local income tax or information
returns to be signed by the Securities Administrator or, if required by
applicable tax law, the Trustee or such other person as may be required to
sign such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to each of the Trust REMICs,
including the income, expenses, assets, and liabilities thereof on a calendar
year basis and on the accrual method of accounting and the fair market value
and adjusted basis of the assets determined at such intervals as may be
required by the Code, as may be necessary to prepare the foregoing returns,
schedules, statements or information; and
(k) as and when necessary and appropriate, represent each
Trust REMIC in any administrative or judicial proceedings relating to an
examination or audit by any governmental taxing authority, request an
administrative adjustment as to any taxable year of each Trust REMIC, enter
into settlement agreements with any governmental taxing agency, extend any
statute of limitations relating to any tax item of any Trust REMIC, and
otherwise act on behalf of each Trust REMIC in relation to any tax matter or
controversy involving it.
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The Holder of the largest Percentage Interest of the Class R,
Class RC and Class RX Certificates shall act as Tax Matters Person for the
Lower-Tier REMIC and the Middle-Tier REMIC, the Upper-Tier REMIC and the Class X
REMIC, respectively, within the meaning of Treasury Regulations Section
1.860F-4(d), and the Securities Administrator is hereby designated as agent of
such Certificateholder for such purpose (or if the Securities Administrator is
not so permitted, such Holder shall be the Tax Matters Person in accordance with
the REMIC Provisions). In such capacity, the Securities Administrator shall, as
and when necessary and appropriate, represent each Trust REMIC in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of each Trust REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of any Trust REMIC, and otherwise act on behalf of each Trust REMIC in
relation to any tax matter or controversy involving it.
The Securities Administrator shall treat the rights of the
Class P Certificateholders to receive Prepayment Premiums, the rights of the
Class X Certificateholders to receive amounts in the Excess Reserve Fund Account
and Supplemental Interest Trust (subject to the obligation to pay Basis Risk
Carry Forward Amounts) and the rights of the LIBOR Certificateholders to receive
Basis Risk Carry Forward Amounts (as calculated in the Preliminary Statement) as
the beneficial ownership interests in a grantor trust and not as an obligations
of any REMIC created hereunder, for federal income tax purposes. The Securities
Administrator shall file or cause to be filed with the Internal Revenue Service
Form 1041 or such other form as may be applicable and shall furnish or cause to
be furnished, to the Class X Certificateholders, the Class P Certificateholders
and the LIBOR Certificateholders, the respective amounts described above that
are received, in the time or times and in the manner required by the Code.
To enable the Securities Administrator to perform its duties
under this Agreement, the Depositor shall provide to the Securities
Administrator within ten (10) days after the Closing Date all information or
data that the Securities Administrator requests in writing and determines to be
relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Moreover, the Depositor
shall provide information to the Securities Administrator concerning the value,
if any, to each Class of Certificates of the right to receive Basis Risk Carry
Forward Amounts from the Excess Reserve Fund Account and the Supplemental
Interest Trust. Thereafter, the Depositor shall provide to the Securities
Administrator promptly upon written request therefor any additional information
or data that the Securities Administrator may, from time to time, reasonably
request to enable the Securities Administrator to perform its duties under this
Agreement. The Depositor hereby indemnifies the Securities Administrator for any
losses, liabilities, damages, claims, or expenses of the Securities
Administrator arising from any errors or miscalculations of the Securities
Administrator that result from any failure of the Depositor to provide, or to
cause to be provided, accurate information or data to the Securities
Administrator on a timely basis.
If any tax is imposed on "prohibited transactions" of any
Trust REMIC as defined in Section 860F(a)(2) of the Code, on the "net income
from foreclosure property" of the Lower-Tier REMIC as defined in Section 860G(c)
of the Code, on any contribution to any Trust REMIC after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is
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imposed, including any minimum tax imposed on any Trust REMIC pursuant to
Sections 23153 and 24874 of the California Revenue and Taxation Code, if not
paid as otherwise provided for herein, the tax shall be paid by (i) the Master
Servicer, the Trustee or the Securities Administrator, as applicable if such
tax arises out of or results from negligence of the Master Servicer, the
Trustee or the Securities Administrator, as applicable in the performance of
any of its obligations under this Agreement, (ii) a Servicer, in the case of
any such minimum tax, and otherwise if such tax arises out of or results from
a breach by the Servicer of any of its obligations under the applicable
Servicing Agreement, (iii) a Responsible Party if such tax arises out of or
results from the Responsible Party's obligation to repurchase a Mortgage Loan
pursuant to the applicable Sale Agreement or (iv) in all other cases, or if
the Trustee, the Master Servicer, the Securities Administrator, the Servicer
or the Responsible Party fails to honor its obligations under the preceding
clause (i), (ii), or (iii), any such tax will be paid with amounts otherwise
to be distributed to the Certificateholders, as provided in Section 4.01(a).
For as long as each Trust REMIC shall exist, the Securities
Administrator shall act as specifically required herein, and the Securities
Administrator shall comply with any directions of the Depositor or a Servicer
stating that such directions are being given to assure such continuing
treatment. In particular, the Securities Administrator shall not (a) sell or
authorize the sale of all or any portion of the Mortgage Loans or of any
investment of deposits in an Account unless such sale is as a result of a
purchase or repurchase of the Mortgage Loans pursuant to this Agreement or (b)
accept any contribution to any Trust REMIC after the Startup Day without receipt
of an Opinion of Counsel that such action described in clause (a) or (b) will
not result in the imposition of a tax on any Trust REMIC or cause any Trust
REMIC to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
Section 8.13 [Reserved].
Section 8.14 Tax Classification of the Excess Reserve Fund
Account and the Interest Rate Swap Agreement. For federal income tax purposes,
the Securities Administrator shall treat the Excess Reserve Fund Account and
the Interest Rate Swap Agreement as beneficially owned by the holder of the
Class X Certificates and shall treat such portion of the Trust Fund as a
grantor trust under subpart E, Part I of subchapter J of the Code. The
Securities Administrator shall treat the rights that each Class of LIBOR
Certificates has to receive payments of Basis Risk Carry Forward Amounts
(excluding any such Amounts attributable to any excess of the REMIC Cap over
the WAC Cap) from the Excess Reserve Fund Account and the Supplemental
Interest Trust as rights to receive payments under an interest rate cap
contract written by the Class X Certificateholders in favor of each Class.
Accordingly, each Class of LIBOR Certificates will comprise two components--a
regular interest in the Upper-Tier REMIC and an interest in an interest rate
cap contract, and the Class X Certificates will be comprised of four
components--a regular interest in the Class X REMIC, an interest in the
Interest Rate Swap Agreement, the Supplemental Interest Trust and the Excess
Reserve Fund Account subject to the obligation to pay Basis Risk Xxxx Forward
Amounts, Net Swap Payment Amounts and Swap Termination Payments. The
Securities Administrator shall allocate the issue price for a Class of
Certificates among these components for purposes of determining the issue
price of the Upper-Tier Regular Interest component based on information
received from the Depositor. Unless otherwise advised by the Depositor in
writing, for federal income tax purposes, the Securities Administrator is
hereby directed to assign a value of zero to the right of each Holder of a
LIBOR
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Certificate to receive the related Basis Risk Carry Forward Amount
(excluding any such Amounts attributable to any excess of the REMIC Cap over
the WAC Cap) for purposes of allocating the purchase price of an initial LIBOR
Certificateholder between such right and the related Upper-Tier Regular
Interest.
Holders of LIBOR Certificates shall also be treated as having
agreed to pay, on each Distribution Date, to the Holders of the Class X
Certificates an aggregate amount equal to the excess, if any, of (i) Net Swap
Payment Amounts and Swap Termination Payments (other that Defaulted Swap
Termination Payments) over (ii) the sum of amounts payable on the Class X
Interest as provided in the Preliminary Statement hereof (such excess, a "Class
IO Shortfall"), first from interest and then from principal distributable on the
LIBOR Certificates. A Class IO Shortfall payable from interest collections shall
be allocated pro rata among such LIBOR Certificates based on the amount of
interest otherwise payable to such Class of LIBOR Certificates, and a Class IO
Shortfall payable from principal collections shall be allocated in reverse
sequential order beginning with the most subordinate Class of LIBOR Certificates
then outstanding.
Any payments of Class IO Shortfalls shall be treated for tax
purposes as having been received by the Holders of such Class of LIBOR
Certificates in respect of the corresponding Upper-Tier Regular Interest and as
having been paid by such Holders to the Holders of the Class X Certificates
through the Supplemental Interest Trust.
Section 8.15 Custodial Responsibilities. Each of the
Custodians shall provide access to the Mortgage Loan documents in possession
of such Custodian regarding the related Mortgage Loans and REO Property and
the servicing thereof to the Trustee, the Certificateholders, the FDIC, and
the supervisory agents and examiners of the FDIC, such access being afforded
only upon two (2) Business Days prior written request and during normal
business hours at the office of such Custodian; provided, however, that,
unless otherwise required by law or any regulatory or administrative agency
(including the FDIC), such Custodian shall not be required to provide access
to such records and documentation if the provision thereof would violate the
legal right to privacy of any Mortgagor. Each of the Custodians shall allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at the expense of
the Trust that covers such Custodians actual costs.
Upon receipt of a request for release by a Servicer
substantially in the form of Exhibit L, Exhibit L-1 or Exhibit L-2 hereto, the
applicable Custodian shall release within five (5) Business Days the related
Mortgage File to such Servicer and the Trustee shall execute and deliver to such
Servicer, without recourse, a request for reconveyance, deed of reconveyance or
release or satisfaction of mortgage or such instrument releasing the lien of the
Mortgage (furnished by such Servicer), together with the Mortgage Note.
Each of the Custodians may resign at any time or may be
terminated by the Trustee with cause, in each case, upon sixty (60) days written
notice to the applicable Servicer, the Depositor and the Securities
Administrator, in which event the Depositor will be obligated to appoint a
successor. If no successor has been appointed and has accepted appointment
within sixty (60) days after the resignation or termination of such Custodian,
such Custodian may petition any court of competent jurisdiction for appointment
of a successor.
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The Securities Administrator, pursuant to a separate
agreement, shall compensate from its own funds the Custodians for their
respective activities under this Agreement. The Custodians shall have no lien on
the Trust Fund for the payment of such fees. The Custodians shall be entitled to
be reimbursed, from funds on deposit in the Distribution Account, amounts
sufficient to indemnify and hold harmless each of the Custodians and any
director, officer, employee, or agent of a Custodian against any loss,
liability, or expense (including reasonable attorneys' fees) incurred in
connection with any claim or legal action relating to:
(a) this Agreement;
(b) the Certificates; or
(c) the performance of any of such Custodian's duties under
this Agreement,
other than any loss, liability, or expense (i) resulting from any breach of a
Servicer's obligations in connection with a Servicing Agreement for which the
Servicer has performed its obligation to indemnify such Custodian pursuant to
such Servicing Agreement, (ii) resulting from any breach of the Responsible
Party's obligations in connection with a Sale Agreement for which the
Responsible Party has performed its obligation to indemnify such Custodian
pursuant to such Sale Agreement or (iii) incurred because of willful
misfeasance, bad faith, or negligence in the performance of any of such
Custodian's duties under this Agreement. This indemnity shall survive the
termination of this Agreement or the earlier resignation or removal of the
Custodians.
ARTICLE IX
ADMINISTRATION OF THE MORTGAGE LOANS
BY THE MASTER SERVICER
Section 9.01 Duties of the Master Servicer; Enforcement of
Servicer's Obligations. (a) The Master Servicer, on behalf of the Trustee, the
Securities Administrator, the Depositor and the Certificateholders, shall
monitor the performance of the Servicers under the related Servicing
Agreements, and (except as set forth below) shall use its reasonable good
faith efforts to cause the Servicers to duly and punctually perform their
duties and obligations thereunder as applicable. Upon the occurrence of an
Event of Default of which a Responsible Officer of the Master Servicer has
actual knowledge, the Master Servicer shall promptly notify the Securities
Administrator and the Trustee and shall specify in such notice the action, if
any, the Master Servicer plans to take in respect of such default. So long as
an Event of Default shall occur and be continuing, the Master Servicer shall
take the actions specified in Article VII.
If (i) a Servicer reports a delinquency on a monthly report
and (ii) such Servicer, by 11 a.m. (New York Time) on the Business Day preceding
the related Remittance Date, neither makes a Monthly Advance nor provides the
Securities Administrator and the Master Servicer with a report certifying that
such a Monthly Advance would be a Nonrecoverable Monthly Advance, then the
Master Servicer shall deposit in the Distribution Account not later than the
Business Day immediately preceding the related Distribution Date a Monthly
Advance in an amount equal to the difference between (x) with respect to each
Monthly Payment due on a Mortgage Loan that is delinquent (other than Relief Act
Interest Shortfalls) and for which the related Servicer was required to make a
Monthly Advance pursuant to the related Servicing Agreement and (y) amounts
deposited in the Collection Account to be used for Monthly Advances with respect
to such Mortgage Loan, except to the extent the Master Servicer
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determines any such Monthly Advance to be a Nonrecoverable Monthly Advance or
Nonrecoverable Servicing Advance. Subject to the foregoing, the Master
Servicer shall continue to make such Monthly Advances for so long as the
related Servicer is required to do so under the related Servicing Agreement.
If applicable, on the Business Day immediately preceding the Distribution
Date, the Master Servicer shall deliver an Officer's Certificate to the
Trustee stating that the Master Servicer elects not to make a Monthly Advance
in a stated amount and detailing the reason(s) it deems the Monthly Advance to
be a Nonrecoverable Monthly Advance. Any amounts deposited by the Master
Servicer pursuant to this Section 9.01 shall be net of the Servicing Fee for
the related Mortgage Loans. If the Master Servicer fails to make a required
Monthly Advance, the Securities Administrator shall provide prompt written
notice to the Trustee of such failure.
(a) The Master Servicer shall pay the costs of monitoring
the Servicers as required hereunder (including costs associated with (i)
termination of any Servicer, (ii) the appointment of a successor servicer or
(iii) the transfer to and assumption of, the servicing by the Master Servicer)
and shall, to the extent permitted by the related Servicing Agreement, seek
reimbursement therefor initially from the terminated Servicer. In the event
the full costs associated with the transition of servicing responsibilities to
the Master Servicer or to a successor servicer are not paid for by the
predecessor or successor Servicer (provided such successor Servicer is not the
Master Servicer), the Master Servicer may be reimbursed therefor by the Trust
for out-of-pocket costs incurred by the Master Servicer associated with any
such transfer of servicing duties from a Servicer to the Master Servicer or
any other successor servicer.
(b) If the Master Servicer assumes the servicing with
respect to any of the Mortgage Loans, it will not assume liability for the
representations and warranties of any Servicer it replaces or for any errors
or omissions of such Servicer.
If the Depositor or an affiliate of the Depositor, is the
owner of the servicing rights for any Servicer and the Depositor chooses to
terminate such Servicer with or without cause and sell those servicing rights to
a successor servicer, then the Depositor must provide thirty (30) days' notice
to the Master Servicer, such successor servicer must be reasonably acceptable to
the Master Servicer, the terminated servicer must be reimbursed for any
unreimbursed Monthly Advances, servicing fees and any related expenses, the
successor servicer must be qualified to service mortgage loans for Xxxxxx Mae or
Xxxxxxx Mac and the Depositor must obtain prior written consent from the Rating
Agencies that the transfer of the servicing of the mortgage loans will not
result in a downgrade, qualification or withdrawal of the then current ratings
of the Certificates. The costs of such transfer (including any costs of the
Master Servicer) are to be borne by the Depositor.
Neither the Depositor nor the Securities Administrator shall
consent to the assignment by any Servicer of such Servicer's rights and
obligations under the Agreement without the prior written consent of the
Master Servicer, which consent shall not be unreasonably withheld.
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Section 9.02 Maintenance of Fidelity Bond and Errors and
Omissions Insurance. The Master Servicer, at its expense, shall maintain in
effect a blanket fidelity bond and an errors and omissions insurance policy,
affording coverage with respect to all directors, officers, directors,
employees and other Persons acting on such Master Servicer's behalf, and
covering errors and omissions in the performance of the Master Servicer's
obligations hereunder. The errors and omissions insurance policy and the
fidelity bond shall be in such form and amount generally acceptable for
entities serving as master servicers or trustees.
Section 9.03 Representations and Warranties of the Master
Servicer. (a) The Master Servicer hereby represents and warrants to the
Depositor, the Securities Administrator and the Trustee, for the benefit of
the Certificateholders, as of the Closing Date that:
(i) it is a national banking association validly existing
and in good standing under the laws of the United States of America,
and as Master Servicer has full power and authority to transact any
and all business contemplated by this Agreement and to execute,
deliver and comply with its obligations under the terms of this
Agreement, the execution, delivery and performance of which have been
duly authorized by all necessary corporate action on the part of the
Master Servicer;
(ii) the execution and delivery of this Agreement by the
Master Servicer and its performance and compliance with the terms of
this Agreement will not (A) violate the Master Servicer's charter or
bylaws, (B) violate any law or regulation or any administrative
decree or order to which it is subject or (C) constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Master Servicer
is a party or by which it is bound or to which any of its assets are
subject, which violation, default or breach would materially and
adversely affect the Master Servicer's ability to perform its
obligations under this Agreement;
(iii) this Agreement constitutes, assuming due
authorization, execution and delivery hereof by the other respective
parties hereto, a legal, valid and binding obligation of the Master
Servicer, enforceable against it in accordance with the terms hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement
of creditors' rights in general, and by general equity principles
(regardless of whether such enforcement is considered in a proceeding
in equity or at law);
(iv) the Master Servicer is not in default with respect to
any order or decree of any court or any order or regulation of any
federal, state, municipal or governmental agency to the extent that
any such default would materially and adversely affect its
performance hereunder;
(v) the Master Servicer is not a party to or bound by any
agreement or instrument or subject to any charter provision, bylaw or
any other corporate restriction or any judgment, order, writ,
injunction, decree, law or regulation that may materially and
adversely affect its ability as Master Servicer to perform its
obligations under this Agreement or that requires the consent of any
third person to the execution of this
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Agreement or the performance by the Master Servicer of its obligations
under this Agreement;
(vi) no litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
would prohibit its entering into this Agreement or performing its
obligations under this Agreement;
(vii) [Reserved];
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Master Servicer of or compliance by
the Master Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement, except for such
consents, approvals, authorizations and orders (if any) as have been
obtained; and
(ix) the consummation of the transactions contemplated by
this Agreement are in the ordinary course of business of the Master
Servicer.
(b) Section 11.01(a) of this Agreement and Section 6 of the
applicable Step 2 Assignment Agreements provide that Avelo, at its option, may
purchase (or, if Avelo is no longer acting as a Servicer of any of the
Mortgage Loans, the Depositor, at its option, may request the Master Servicer
to solicit bids in a commercially reasonable manner, on or after the Optional
Termination Date (such event, the "Auction Call"), for the purchase) of all of
the Mortgage Loans (and REO Properties) at the Termination Price. The Master
Servicer shall accommodate such request to conduct an Auction Call at its sole
discretion. Avelo, in consideration of the benefits to it of the transactions
occurring under this Agreement, the Assignment Agreements and the related
Servicing Agreement, hereby represents, covenants and agrees with the
Depositor and any applicable NIM Issuer that it will not exercise its right to
purchase, on or after the Optional Termination Date, all Mortgage Loans (and
REO Properties) unless it has received (x) written notification from the NIM
Trustee that all of the outstanding notes issued under the applicable
indenture have been paid in full or (y) an Officer's Certificate of the NIM
Issuer pursuant to the applicable section of the relevant indenture to the
effect that all conditions precedent to the satisfaction and discharge of the
indenture have been complied with. The Depositor hereby represents, covenants
and agrees with any applicable NIM Issuer that it will not exercise its right
to request the Master Servicer to solicit bids in a commercially reasonable
manner, on or after the Optional Termination Date, for the purchase of all of
the Mortgage Loans (and REO Properties) unless it has received (x) written
notification from the NIM Trustee that all of the outstanding notes issued
under the applicable indenture have been paid in full or (y) an Officer's
Certificate of the NIM Issuer pursuant to the applicable section of the
relevant indenture to the effect that all conditions precedent to the
satisfaction and discharge of the indenture have been complied with.
The Master Servicer shall give Avelo written notice of the
occurrence of the Optional Termination Date upon the occurrence of the same.
(c) It is understood and agreed that the representations and
warranties set forth in this Section shall survive the execution and delivery
of this Agreement. The Master Servicer shall indemnify the Depositor,
Securities Administrator, and the Trustee and hold them
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harmless against any loss, damages, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments, and other reasonable costs and
expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from, a material breach of the Master Servicer's
representations and warranties contained in Section 9.03(a) above. It is
understood and agreed that the enforcement of the obligation of the Master
Servicer set forth in this Section 9.03 to indemnify the Depositor, Securities
Administrator, and the Trustee constitutes the sole remedy of the Depositor
and the Trustee, respecting a breach of the foregoing representations and
warranties. Such indemnification shall survive any termination of the Master
Servicer as Master Servicer hereunder and any termination of this Agreement.
Any cause of action against the Master Servicer relating to or
arising out of the breach of any representations and warranties made in this
Section shall accrue upon discovery of such breach by either the Depositor, the
Master Servicer, Securities Administrator or the Trustee or notice thereof by
any one of such parties to the other parties.
Section 9.04 Master Servicer Events of Default. Each of the
following shall constitute a "Master Servicer Event of Default":
(a) any failure by the Master Servicer to deposit in the
Distribution Account any payment received by it from any Servicer or required
to be made by the Master Servicer under the terms of this Agreement which
continues unremedied for a period of two (2) Business Days after the date upon
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer by any other party hereto;
(b) failure by the Master Servicer to duly observe or
perform, in any material respect, any other covenants, obligations or
agreements of the Master Servicer as set forth in this Agreement (including
any obligation to cause any subservicer or Reporting Subcontractor (except as
specified below) to take any action specified in Article XIII) which failure
continues unremedied for a period of thirty (30) days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by the Trustee or to the Master Servicer and
the Trustee by the holders of Certificates evidencing at least 25% of the
Voting Rights; provided that the thirty (30) day cure period shall not apply
so long as the Depositor is required to file Exchange Act Reports with respect
to the Trust Fund, the failure to comply with the requirements set forth in
Article XIII, for which the grace period shall not exceed the lesser of ten
(10) calendar days or such period in which the applicable Exchange Act Report
can be timely filed (without taking into account any extensions);
(c) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force, undischarged
or unstayed for a period of sixty (60) days;
(d) the Master Servicer shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets
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and liabilities or similar proceedings of or relating to the Master Servicer or
relating to all or substantially all of its property;
(e) the Master Servicer shall admit in writing its inability
to pay its debts as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations
for three (3) Business Days;
(f) except as otherwise set forth herein, the Master
Servicer attempts to assign this Agreement or its responsibilities hereunder
or to delegate its duties hereunder (or any portion thereof) without the
consent of the Securities Administrator and the Depositor; or
(g) the indictment of the Master Servicer for the taking of
any action by the Master Servicer, any employee thereof, any Affiliate or any
director or employee thereof that constitutes fraud or criminal activity in
the performance of its obligations under this Agreement, in each case, where
such indictment materially and adversely affects the ability of the Master
Servicer to perform its obligations under this Agreement (subject to the
condition that such indictment is not dismissed within ninety (90) days).
In each and every such case, so long as a Master Servicer
Event of Default shall not have been remedied, in addition to whatever rights
the Trustee may have at law or equity to damages, including injunctive relief
and specific performance, the Trustee, by notice in writing to the Master
Servicer, may, and (a) upon the request of the Holders of Certificates
representing at least 51% of the Voting Rights (except with respect to any
Master Servicer Event of Default related to a failure to comply with an Exchange
Act Filing Obligation) or (b) the Depositor, in the case of a failure related to
an Exchange Act Filing Obligation, shall, terminate with cause all the rights
and obligations of the Master Servicer under this Agreement.
The Depositor shall not be entitled to terminate the rights
and obligations of the Master Servicer, pursuant to the above paragraph, if a
failure of the Master Servicer to identify a Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with
respect to mortgage loans other than the Mortgage Loans.
Upon receipt by the Master Servicer of such written notice,
all authority and power of the Master Servicer under this Agreement, shall
pass to and be vested in any successor master servicer appointed hereunder
which accepts such appointments. Upon written request from the Trustee or the
Depositor, the Master Servicer shall prepare, execute and deliver to the
successor entity designated by the Trustee any and all documents and other
instruments related to the performance of its duties hereunder as the Master
Servicer and, place in such successor's possession all such documents with
respect to the master servicing of the Mortgage Loans and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of such notice of termination, at the Master Servicer's sole expense. The
Master Servicer shall cooperate with the Trustee and such successor master
servicer in effecting the termination of the Master Servicer's
responsibilities and rights hereunder, including without limitation, the
transfer to such successor master servicer for administration by it of all
cash amounts which shall at the time be
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credited to the Distribution Account or are thereafter received with respect
to the Mortgage Loans.
Upon the occurrence of a Master Servicer Event of Default, the
Securities Administrator shall (i) provide prompt written notice to the Trustee
and the Depositor of such occurrence and (ii) provide the Depositor in writing
and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a successor
master servicer in the event the Trustee should succeed to the duties of the
Master Servicer as set forth herein. In the event that the Master Servicer
becomes a terminated Master Servicer due to a Master Servicer Event of Default,
the terminated Master Servicer shall bear all costs of the transfer of master
servicing hereunder (including those incurred by the Trustee). If such costs are
not paid by the terminated Master Servicer, such costs shall be reimbursed from
the Trust Fund.
Section 9.05 Waiver of Default. By a written notice, the
Trustee may with the consent of a Holders of Certificates evidencing at least
51% of the Voting Rights waive any default by the Master Servicer in the
performance of its obligations hereunder and its consequences. Upon any waiver
of a past default, such default shall cease to exist, and any Master Servicer
Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
Section 9.06 Successor to the Master Servicer. Upon
termination of the Master Servicer's responsibilities and duties under this
Agreement, the Trustee shall appoint or may petition any court of competent
jurisdiction for the appointment of a successor, which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Master Servicer under this Agreement prior to the termination of the Master
Servicer. Any successor shall be a Xxxxxx Xxx and Xxxxxxx Mac approved
servicer in good standing and acceptable to the Depositor and the Rating
Agencies. In connection with such appointment and assumption, the Trustee may
make such arrangements for the compensation of such successor out of payments
on Mortgage Loans as it and such successor shall agree; provided, however,
that in no event shall the master servicer fee paid to such successor master
servicer exceed that paid to the Master Servicer hereunder. In the event that
the Master Servicer's duties, responsibilities and liabilities under this
Agreement are terminated, the Master Servicer shall continue to discharge its
duties and responsibilities hereunder until the effective date of such
termination with the same degree of diligence and prudence which it is
obligated to exercise under this Agreement and shall take no action whatsoever
that might impair or prejudice the rights of its successor. The termination of
the Master Servicer shall not become effective until a successor shall be
appointed pursuant hereto and shall in no event (i) relieve the Master
Servicer of responsibility for the representations and warranties made
pursuant to Section 9.03(a) hereof and the remedies available to the Trustee
under Section 9.03(b) hereof, it being understood and agreed that the
provisions of Section 9.03 hereof shall be applicable to the Master Servicer
notwithstanding any such sale, assignment, resignation or termination of the
Master Servicer or the termination of this Agreement; or (ii) affect the right
of the Master Servicer to receive payment and/or reimbursement of any amounts
accruing to it hereunder prior to the date of termination (or
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during any transition period in which the Master Servicer continues to perform
its duties hereunder prior to the date the successor master servicer fully
assumes its duties).
If no successor Master Servicer has accepted its appointment
within ninety (90) days of the time the Trustee receives the resignation of the
Master Servicer, the Trustee shall be the successor Master Servicer in all
respects under this Agreement and shall have all the rights and powers and be
subject to all the responsibilities, duties and liabilities relating thereto,
including the obligation to make Monthly Advances; provided, however, that any
failure to perform any duties or responsibilities caused by the Master
Servicer's failure to provide information required by this Agreement shall not
be considered a default by the Trustee hereunder. In the Trustee's capacity as
such successor, the Trustee shall have the same limitations on liability herein
granted to the Master Servicer. As compensation therefor, the Trustee shall be
entitled to receive the compensation, reimbursement and indemnities otherwise
payable to the Master Servicer, including the fees and other amounts payable
pursuant to Section 9.07 hereof.
At least fifteen (15) calendar days prior to the effective
date of such appointment, the Trustee shall provide written notice to the
Depositor of such successor pursuant to this Section 9.06.
Any successor master servicer appointed as provided herein,
shall execute, acknowledge and deliver to the Master Servicer and to the Trustee
an instrument accepting such appointment, wherein the successor shall make the
representations and warranties set forth in Section 9.03 hereof, and whereupon
such successor shall become fully vested with all of the rights, powers, duties,
responsibilities, obligations and liabilities of the Master Servicer, with like
effect as if originally named as a party to this Agreement. Any termination or
resignation of the Master Servicer or termination of this Agreement shall not
affect any claims that the Trustee may have against the Master Servicer arising
out of the Master Servicer's actions or failure to act prior to any such
termination or resignation or in connection with the Trustee's assumption as
successor master servicer of such obligations, duties and responsibilities.
Upon a successor's acceptance of appointment as such, the
Master Servicer shall notify by mail the Trustee of such appointment.
Section 9.07 Compensation of the Master Servicer. As
compensation for its activities under this Agreement, the Master Servicer
shall be paid the Master Servicing Fee and be entitled to the investment
income earned on amounts in the Distribution Account during the Master
Servicer Float Period.
Section 9.08 Merger or Consolidation. Any Person into which
the Master Servicer may be merged or consolidated, or any Person resulting
from any merger, conversion, other change in form or consolidation to which
the Master Servicer shall be a party, or any Person succeeding to the business
of the Master Servicer, shall be the successor to the Master Servicer
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or resulting Person to
the Master Servicer shall (i) be a Person (or have an Affiliate) that is
qualified and approved to service mortgage loans for Xxxxxx Xxx and FHLMC
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(provided, further that a successor Master Servicer that satisfies subclause
(i) through an Affiliate agrees to service the Mortgage Loans in accordance
with all applicable Xxxxxx Mae and FHLMC guidelines) and (ii) have a net worth
of not less than $25,000,000.
Section 9.09 Resignation of the Master Servicer. Except as
otherwise provided in Sections 9.08 and 9.10 hereof, the Master Servicer shall
not resign from the obligations and duties hereby imposed on it unless the
Master Servicer's duties hereunder are no longer permissible under applicable
law or are in material conflict by reason of applicable law with any other
activities carried on by it and cannot be cured. Any such determination
permitting the resignation of the Master Servicer shall be evidenced by an
Opinion of Counsel that shall be independent to such effect delivered to the
Trustee. No such resignation shall become effective until the Trustee shall
have assumed, or a successor master servicer satisfactory to the Trustee and
the Depositor shall have assumed, the Master Servicer's responsibilities and
obligations under this Agreement. Notice of such resignation shall be given
promptly by the Master Servicer and the Depositor to the Trustee.
At least fifteen (15) calendar days prior to the effective
date of such resignation, the Master Servicer shall provide written notice to
the Depositor of any successor pursuant to this Section.
If at any time, Xxxxx Fargo, as Master Servicer, resigns under
this Section 9.09, or is removed as Master Servicer pursuant to Section 9.04,
then at such time Xxxxx Fargo shall also resign (and shall be entitled to
resign) as Securities Administrator under this Agreement.
Section 9.10 Assignment or Delegation of Duties by the
Master Servicer. Except as expressly provided herein, the Master Servicer
shall not assign or transfer any of its rights, benefits or privileges
hereunder to any other Person, or delegate to or subcontract with, or
authorize or appoint any other Person to perform any of the duties, covenants
or obligations to be performed by the Master Servicer; provided, however, that
the Master Servicer shall have the right with the prior written consent of the
Depositor (which shall not be unreasonably withheld or delayed), and upon
delivery to the Trustee and the Depositor of a letter from each Rating Agency
to the effect that such action shall not result in a downgrade of the ratings
assigned to any of the Certificates, to delegate or assign to or subcontract
with or authorize or appoint any qualified Person to perform and carry out any
duties, covenants or obligations to be performed and carried out by the Master
Servicer hereunder. Notice of such permitted assignment shall be given
promptly by the Master Servicer to the Depositor and the Trustee. If, pursuant
to any provision hereof, the duties of the Master Servicer are transferred to
a successor master servicer, the entire compensation payable to the Master
Servicer pursuant hereto shall thereafter be payable to such successor master
servicer but in no event shall the fee payable to the successor master
servicer exceed that payable to the predecessor master servicer.
Section 9.11 Limitation on Liability of the Master Servicer.
Neither the Master Servicer nor any of the directors, officers, employees or
agents of the Master Servicer shall be under any liability to the Trustee, the
Securities Administrator, the Servicers or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Master Servicer or any such person
against any liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or negligence in the
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performance of its duties or by reason of reckless disregard for its
obligations and duties under this Agreement. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Master Servicer shall be
under no obligation to appear in, prosecute or defend any legal action that is
not incidental to its duties as Master Servicer with respect to the Mortgage
Loans under this Agreement and that in its opinion may involve it in any
expenses or liability; provided, however, that the Master Servicer may in its
sole discretion undertake any such action that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom, shall be liabilities of the Trust, and the Master Servicer shall be
entitled to be reimbursed therefor out of the Master Servicer Account in
accordance with the provisions of Section 9.07 and Section 9.12.
The Master Servicer shall not be liable for any acts or
omissions of any Servicer except to the extent that damages or expenses are
incurred as a result of such act or omissions and such damages and expenses
would not have been incurred but for the negligence, willful malfeasance, bad
faith or recklessness of the Master Servicer in supervising, monitoring and
overseeing the obligations of the Servicers as required under this Agreement.
Section 9.12 Indemnification; Third Party Claims. The Master
Servicer agrees to indemnify the Depositor, the Securities Administrator, the
Servicers and the Trustee, and hold them harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the
Depositor, the Securities Administrator, the Servicers or the Trustee may
sustain as a result of the Master Servicer's willful malfeasance, bad faith or
negligence in the performance of its duties hereunder or by reason of its
reckless disregard for its obligations and duties under this Agreement. The
Depositor, the Securities Administrator, the Servicers, and the Trustee shall
immediately notify the Master Servicer if a claim is made by a third party
with respect to this Agreement or the Mortgage Loans which would entitle the
Depositor, the Servicers or the Trustee to indemnification under this Section
9.12, whereupon the Master Servicer shall assume the defense of any such claim
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim.
The Master Servicer agrees to indemnify and hold harmless the
Trustee from and against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liability, fees and expenses (including reasonable attorneys' fees) that the
Trustee may sustain as a result of such liability or obligations of the Master
Servicer and in connection with the Trustee's assumption (not including the
Trustee's performance, except to the extent that costs or liability of the
Trustee are created or increased as a result of negligent or wrongful acts or
omissions of the Master Servicer prior to its replacement as Master Servicer) of
the Master Servicer's obligations, duties or responsibilities under such
agreement.
The Trust will indemnify the Master Servicer and hold it
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that the Master Servicer may incur or sustain in
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connection with, arising out of or related to this Agreement, the Servicing
Agreements, the Sale Agreements, the Step 2 Assignment Agreements or the
Certificates, except to the extent that any such loss, liability or expense is
related to (i) a material breach of the Master Servicer's representations and
warranties in this Agreement or (ii) the Master Servicer's willful
malfeasance, bad faith or negligence or by reason of its reckless disregard of
its duties and obligations under any such agreement; provided, that any such
loss, liability or expense constitutes an "unanticipated expense incurred by
the REMIC" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii). The Master Servicer shall be entitled to reimbursement for
any such indemnified amount from funds on deposit in the Distribution Account.
ARTICLE X
CONCERNING THE SECURITIES ADMINISTRATOR
Section 10.01 Duties of the Securities Administrator. The
Securities Administrator shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement.
(a) The Securities Administrator, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Securities Administrator that are
specifically required to be furnished pursuant to any provision of this
Agreement shall examine them to determine whether they are in the form
required by this Agreement; provided, however, that the Securities
Administrator shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or other
instrument. If any such instrument is found not to conform in any material
respect to the requirements of this Agreement, the Securities Administrator
shall notify the Certificateholders of such non conforming instrument in the
event the Securities Administrator, after so requesting, does not receive a
satisfactorily corrected instrument.
(b) No provision of this Agreement shall be construed to
relieve the Securities Administrator from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct;
provided, however, that:
(i) the duties and obligations of the Securities
Administrator shall be determined solely by the express provisions of
this Agreement, the Securities Administrator shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Securities
Administrator and the Securities Administrator may conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Securities Administrator and conforming to the requirements of this
Agreement which it believed in good faith to be genuine and to have
been duly executed by the proper authorities respecting any matters
arising hereunder;
(ii) the Securities Administrator shall not be liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Securities Administrator, unless it shall
be conclusively determined by a court of competent
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jurisdiction, such determination no longer subject to appeal, that
the Securities Administrator was negligent in ascertaining the
pertinent facts;
(iii) the Securities Administrator shall not be liable with
respect to any action or inaction taken, suffered or omitted to be
taken by it in good faith in accordance with the direction of Holders
of Certificates evidencing not less than 25% of the Voting Rights of
Certificates relating to the time, method and place of conducting any
proceeding for any remedy available to the Securities Administrator,
or exercising or omitting to exercise any trust or power conferred
upon the Securities Administrator under this Agreement; and
(iv) the Securities Administrator shall not be accountable,
shall have no liability and makes no representation as to any acts or
omissions hereunder of the Master Servicer or the Trustee.
Section 10.02 Certain Matters Affecting the Securities
Administrator. Except as otherwise provided in Section 10.01:
(a) the Securities Administrator may request and conclusively
rely upon and shall be fully protected in acting or refraining from
acting upon any resolution, Officer's Certificate, certificate of
auditors or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Securities
Administrator shall have no responsibility to ascertain or confirm the
genuineness of any signature of any such party or parties;
(b) the Securities Administrator may consult with counsel,
financial advisers or accountants and the advice of any such counsel,
financial advisers or accountants and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(c) the Securities Administrator shall not be liable for any
action or inaction taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(d) the Securities Administrator shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that if the payment within a
reasonable time to the Securities Administrator of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Securities Administrator, not
reasonably assured to the Securities Administrator by the security
afforded to it by the terms of this Agreement, the Securities
Administrator may require reasonable indemnity against such expense or
liability as a condition to so proceeding. Nothing in this clause (iv)
shall derogate from
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the obligation of the Master Servicer to observe any applicable law
prohibiting disclosure of information regarding the Mortgagors,
provided that the Master Servicer shall have no liability for
disclosure required by this Agreement;
(e) the Securities Administrator may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys or a custodian and the Securities
Administrator shall not be responsible for any misconduct or negligence
on the part of any such agent, attorney or custodian appointed by the
Securities Administrator with due care;
(f) the Securities Administrator shall not be required to risk
or expend its own funds or otherwise incur any financial liability in
the performance of any of its duties or in the exercise of any of its
rights or powers hereunder if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not assured to it, and none of the provisions
contained in this Agreement shall in any event require the Securities
Administrator to perform, or be responsible for the manner of
performance of, any of the obligations of the Master Servicer under
this Agreement;
(g) the Securities Administrator shall be under no obligation
to exercise any of the trusts, rights or powers vested in it by this
Agreement or to institute, conduct or defend any litigation hereunder
or in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Securities
Administrator reasonable security or indemnity satisfactory to the
Securities Administrator against the costs, expenses and liabilities
which may be incurred therein or thereby;
(h) the Securities Administrator shall have no obligation to
appear in, prosecute or defend any legal action that is not incidental
to its duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Securities
Administrator may in its discretion undertake any such action that it
may deem necessary or desirable in respect of this Agreement and the
rights and duties of the parties hereto and the interests of the
Trustee, the Securities Administrator and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action
and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Securities Administrator shall
be entitled to be reimbursed therefor out of the Collection Account;
and
(i) in no event shall the Securities Administrator be liable
for special, indirect or consequential damages.
The Securities Administrator shall have no duty (A) to cause
any recording, filing, or depositing of this Agreement or any agreement referred
to herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or filing
or depositing or to any rerecording, refiling or redepositing thereof, (B) to
cause the provision of any insurance or (C) to cause the payment or discharge of
any tax, assessment, or other governmental charge or any lien or encumbrance of
any kind owing with
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respect to, assessed or levied against, any part of the Trust Fund other than
from funds available in the Distribution Account.
Section 10.03 Securities Administrator Not Liable for
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates shall be taken as the statements of the Depositor or the
Transferor, as the case may be, and the Securities Administrator assumes no
responsibility for their correctness. The Securities Administrator makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document other than with
respect to the Securities Administrator's execution and authentication of the
Certificates. The Securities Administrator shall not be accountable for the
use or application by the Depositor or the Master Servicer of any funds paid
to the Depositor or the Master Servicer in respect of the Mortgage Loans or
deposited in or withdrawn from the Collection Account by the Depositor or the
Master Servicer.
Section 10.04 Securities Administrator May Own Certificates.
The Securities Administrator in its individual or any other capacity may
become the owner or pledgee of Certificates and may transact business with the
parties hereto and their Affiliates with the same rights as it would have if
it were not the Securities Administrator.
Section 10.05 Securities Administrator's Fees and Expenses.
The Securities Administrator shall be entitled to the investment income earned
on amounts in the Distribution Account during the Master Servicer Float
Period. The Securities Administrator and any director, officer, employee,
agent or "control person" within the meaning of the Securities Act of 1933, as
amended, and the Securities Exchange of 1934, as amended ("Control Person"),
of the Securities Administrator shall be indemnified by the Trust and held
harmless against any loss, liability or expense (including reasonable
attorney's fees) (i) incurred in connection with any claim or legal action
relating to (a) this Agreement, (b) the Mortgage Loans or (c) the
Certificates, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of any of the
Securities Administrator's duties hereunder, (ii) incurred in connection with
the performance of any of the Securities Administrator's duties hereunder,
other than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of any of the
Securities Administrator's duties hereunder or (iii) incurred by reason of any
action of the Securities Administrator taken at the direction of the
Certificateholders, provided that any such loss, liability or expense
constitutes an "unanticipated expense incurred by the REMIC" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii). Such indemnity
shall survive the termination of this Agreement or the resignation or removal
of the Securities Administrator hereunder. Without limiting the foregoing, and
except for any such expense, disbursement or advance as may arise from the
Securities Administrator's negligence, bad faith or willful misconduct, or
which would not be an "unanticipated expense" within the meaning of the second
preceding sentence, the Securities Administrator shall be reimbursed by the
Trust for all reasonable expenses, disbursements and advances incurred or made
by the Securities Administrator in accordance with any of the provisions of
this Agreement with respect to: (A) the reasonable compensation and the
expenses and disbursements of its counsel not associated with the closing of
the issuance of the Certificates, (B) the reasonable compensation, expenses
and disbursements of any accountant, engineer, appraiser or other agent that
is not regularly employed by the Securities Administrator, to the extent that
the Securities Administrator must engage such Persons to perform acts or
services hereunder and (C) printing
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and engraving expenses in connection with preparing any Definitive
Certificates. The Trust shall fulfill its obligations under this paragraph
from amounts on deposit from time to time in the Distribution Account.
The Securities Administrator may retain or withdraw from the
Distribution Account, (i) the Master Servicing Fee and the investment income
earned on amounts in the Distribution Account during the Master Servicer Float
Period, (ii) amounts necessary to reimburse it or the Master Servicer for any
previously unreimbursed Advances and any Advances the Master Servicer deems to
be non-recoverable from the related Mortgage Loan proceeds, (iii) an aggregate
annual amount to indemnify the Master Servicer and itself for amounts due in
accordance with this Agreement and (iv) any other amounts which it or the Master
Servicer is entitled to receive hereunder for reimbursement, indemnification or
otherwise, including the amount to which the Securities Administrator is
entitled pursuant to Section 3.02 hereof. The Securities Administrator shall be
required to pay all expenses incurred by it in connection with its activities
hereunder and shall not be entitled to reimbursement therefor except as provided
in this Agreement.
Section 10.06 Eligibility Requirements for the Securities
Administrator. The Securities Administrator hereunder shall at all times be a
corporation or association organized and doing business under the laws the
United States of America or any state thereof, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by federal or state
authority and with a credit rating of at least investment grade. If such
corporation or association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 10.06 the combined
capital and surplus of such corporation or association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Securities Administrator shall
cease to be eligible in accordance with the provisions of this Section 10.06,
the Securities Administrator shall resign immediately in the manner and with
the effect specified in Section 10.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the
Depositor and its affiliates or the Trustee and its affiliates.
Any successor Securities Administrator (i) may not be an
originator, the Master Servicer, the Servicer, the Depositor or an affiliate of
the Depositor unless the Securities Administrator functions are operated through
an institutional trust department of the Securities Administrator, (ii) must be
authorized to exercise corporate trust powers under the laws of its jurisdiction
of organization, and (iii) must be rated at least "A/F1" by Fitch, if Fitch is a
Rating Agency and if rated by Fitch, or the equivalent rating by S&P or Xxxxx'x.
If no successor Securities Administrator shall have been appointed and shall
have accepted appointment within sixty (60) days after the Securities
Administrator ceases to be the Securities Administrator pursuant to Section
10.07, then the Trustee may (but shall not be obligated to) become the successor
Securities Administrator. The Depositor shall appoint a successor to the
Securities Administrator in accordance with Section 10.07. The Trustee shall
notify the Rating Agencies of any change of Securities Administrator.
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Section 10.07 Resignation and Removal of the Securities
Administrator. The Securities Administrator may at any time resign by giving
written notice of resignation to the Depositor and the Trustee and each Rating
Agency not less than sixty (60) days before the date specified in such notice
when, subject to Section 10.08, such resignation is to take effect, and
acceptance by a successor Securities Administrator in accordance with Section
10.08 meeting the qualifications set forth in Section 10.06. If no successor
Securities Administrator meeting such qualifications shall have been so
appointed by the Depositor and have accepted appointment within thirty (30)
days after the giving of such notice of resignation, the resigning Securities
Administrator may petition any court of competent jurisdiction for the
appointment of a successor Securities Administrator.
At least fifteen (15) calendar days prior to the effective
date of such resignation, the Securities Administrator shall provide written
notice to the Depositor or any successor pursuant to this Section 10.07.
If at any time (i) the Securities Administrator shall cease to
be eligible in accordance with the provisions of Section 10.06 hereof and shall
fail to resign after written request thereto by the Depositor, (ii) the
Securities Administrator shall become incapable of acting, or shall be adjudged
as bankrupt or insolvent, or a receiver of the Securities Administrator or of
its property shall be appointed, or any public officer shall take charge or
control of the Securities Administrator or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, (iii)(A) a tax is
imposed with respect to the Trust Fund by any state in which the Securities
Administrator or the Trust Fund is located and (B) the imposition of such tax
would be avoided by the appointment of a different Securities Administrator, or
(iv) the Securities Administrator fails to comply with its obligations under
Article XIII and such failure is not remedied within the lesser of ten (10)
calendar days or such period in which the applicable Exchange Act Report can be
timely filed (without taking into account any extensions), then, in the case of
clauses (i) through (iv), the Depositor may remove the Securities Administrator
and appoint a successor Securities Administrator by written instrument, in
triplicate, one copy of which instrument shall be delivered to the Securities
Administrator so removed, one copy of which shall be delivered to the Master
Servicer and one copy to the successor Securities Administrator.
The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Securities Administrator and appoint a
successor Securities Administrator by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys in fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor Securities Administrator.
Any resignation or removal of the Securities Administrator and
appointment of a successor Securities Administrator pursuant to any of the
provisions of this Section 10.07 shall become effective upon acceptance by the
successor Securities Administrator of appointment as provided in Section 10.08
hereof.
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Section 10.08 Successor Securities Administrator. Any
successor Securities Administrator (which may be the Trustee) appointed as
provided in Section 10.07 hereof shall execute, acknowledge and deliver to the
Depositor and to its predecessor Securities Administrator and the Trustee an
instrument accepting such appointment hereunder and thereupon the resignation
or removal of the predecessor Securities Administrator shall become effective
and such successor Securities Administrator, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if
originally named as Securities Administrator herein. The Depositor, the
Trustee, the Master Servicer and the predecessor Securities Administrator
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
the successor Securities Administrator all such rights, powers, duties, and
obligations.
No successor Securities Administrator shall accept appointment
as provided in this Section 10.08 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 10.06 hereof and its appointment shall not adversely affect the then
current rating of the Certificates, as confirmed in writing by each Rating
Agency and has provided to the Depositor in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a replacement Securities Administrator.
Upon acceptance by a successor Securities Administrator of
appointment as provided in this Section 10.08, the Depositor shall mail notice
of the succession of such Securities Administrator hereunder to all Holders of
Certificates. If the Depositor fails to mail such notice within ten (10) days
after acceptance by the successor Securities Administrator of appointment, the
successor Securities Administrator shall cause such notice to be mailed at the
expense of the Depositor.
Section 10.09 Merger or Consolidation of the Securities
Administrator. Any corporation or other entity into which the Securities
Administrator may be merged or converted or with which it may be consolidated
or any corporation or other entity resulting from any merger, conversion or
consolidation to which the Securities Administrator shall be a party, or any
corporation or other entity succeeding to the business of the Securities
Administrator, shall be the successor of the Securities Administrator
hereunder, provided that such corporation or other entity shall be eligible
under the provisions of Section 10.06 hereof, without the execution or filing
of any paper or further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section 10.10 Assignment or Delegation of Duties by the
Securities Administrator. Except as expressly provided herein, the Securities
Administrator shall not assign or transfer any of its rights, benefits or
privileges hereunder to any other Person, or delegate to or subcontract with,
or authorize or appoint any other Person to perform any of the duties,
covenants or obligations to be performed by the Securities Administrator;
provided, however, that the Securities Administrator shall have the right with
the prior written consent of the Depositor (which shall not be unreasonably
withheld or delayed), and upon delivery to the Trustee and the Depositor of a
letter from each Rating Agency to the effect that such action shall
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not result in a downgrade of the ratings assigned to any of the Certificates,
to delegate or assign to or subcontract with or authorize or appoint any
qualified Person to perform and carry out any duties, covenants or obligations
to be performed and carried out by the Securities Administrator hereunder.
Notice of such permitted assignment shall be given promptly by the Securities
Administrator to the Depositor and the Trustee. If, pursuant to any provision
hereof, the duties of the Securities Administrator are transferred to a
successor securities administrator, the entire compensation payable to the
Securities Administrator pursuant hereto shall thereafter be payable to such
successor securities administrator but in no event shall the fee payable to
the successor securities administrator exceed that payable to the predecessor
securities administrator.
ARTICLE XI
TERMINATION
Section 11.01 Termination upon Liquidation or Purchase of
the Mortgage Loans. Subject to Section 11.03, the obligations and
responsibilities of the Depositor, the Master Servicer, the Servicers, the
Securities Administrator and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of: (a) Avelo, at its option,
purchasing (the "Avelo Call") (or, if Avelo is no longer acting as a Servicer
of any of the Mortgage Loans, the Depositor may request the Master Servicer to
exercise its option to conduct an Auction Call for the purchase of) the
Mortgage Loans and all other property of the Trust on a non-recourse basis
with no representations or warranties of any nature whatsoever and the sale of
all of the Property of the Trust Fund, on or after the Optional Termination
Date. The Master Servicer shall accommodate such request to conduct an Auction
Call at its sole discretion. The Property of the Trust Fund shall be sold by
the Trustee as directed by the Depositor or the Master Servicer to the entity
with the highest bid received by the Master Servicer from closed bids
solicited by the Master Servicer or its designee; provided, that to effectuate
such sale, the Master Servicer or its designee shall have made reasonable
efforts to sell all of the property of the Trust Fund for its fair market
value in a commercially reasonable manner and on commercially reasonable
terms, which includes the good faith solicitation of competitive bids to
prospective purchasers that are recognized broker/dealers for assets of this
type and provided further that, (i) such sale price shall not be less than the
Par Value as certified by the Depositor, (ii) the Master Servicer receives
bids from no fewer than three prospective purchasers (which may include the
Majority Class X Certificateholder) and (iii) such sale price shall be
deposited with the Master Servicer prior to the Distribution Date following
the month in which such value is determined; and (b) the later of (i) the
maturity or other liquidation (or any Advance with respect thereto) of the
last Mortgage Loan remaining in the Trust Fund and the disposition of all REO
Property and (ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement. In no event
shall the trusts created hereby continue beyond the expiration of 21 years
from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late Ambassador of the United States to the Court of St. James's, living on
the date hereof. For purposes of this Section, the "Termination Price" shall
be equal to the greater of: (1) the sum of (i) 100% of the unpaid principal
balance of each Mortgage Loan (other than in respect of REO Property) plus
accrued and unpaid interest thereon at the applicable Mortgage Interest Rate,
(ii) the lesser of (x) the appraised value of any REO Property as determined
by the higher of two appraisals completed by two independent appraisers
selected by the Master Servicer at its expense, plus accrued and unpaid
interest on the related mortgage loans at the applicable mortgage rate and (y)
the unpaid
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principal balance of each Mortgage Loan related to any REO Property, in each
case plus accrued and unpaid interest thereon at the applicable Mortgage
Interest Rate; and (iii) any Swap Termination Payment other than a Defaulted
Swap Termination Payment owed to the Swap Provider; and (2) the aggregate fair
market value of each Mortgage Loan and any REO Property, as determined by the
highest bid received by the Master Servicer from closed bids solicited by the
Depositor or its designee from at least three recognized broker/dealers (one
of which may be an affiliate of the Depositor) that deal in similar assets as
of the close of business on the third Business Day preceding the date upon
which a Notice of Final Distribution is furnished to Certificateholders
pursuant to Section 11.02, plus accrued and unpaid interest on the Mortgage
Loans at the applicable Mortgage Interest Rate.
The proceeds of the purchase or sale of such assets of the
Trust pursuant to the Avelo Call or the Auction Call described in Section 11.01
above (other than, with respect to any mortgage loan and the related property,
an amount equal to the excess, if any, of the amount in Section 11.01(a)(2) over
the sum of the amount in Section 11.01(a)(1) (such excess, the "Fair Market
Value Excess")) will be distributed to the holders of the Certificates in
accordance with Section 4.01. Any Fair Market Value Excess received in
connection with the purchase of the Mortgage Loans and REO Properties will be
distributed to the holders of the Class RC Certificates.
Except to the extent provided above with regard to allocating
any Fair Market Value Excess to the holders of the Class RC Certificates, the
proceeds of such a purchase or sale will be treated as a prepayment of the
Mortgage Loans for purposes of distributions to Certificateholders. Accordingly,
the sale of the Mortgage Loans and the REO Properties as a result of the
exercise of the Avelo Call or the Auction Call will result in the final
distribution on the Certificates on that Distribution Date.
Section 11.02 Final Distribution on the Certificates. If, on
any Remittance Date, the Servicers notify the Securities Administrator that
there are no Outstanding Mortgage Loans and no other funds or assets in the
Trust Fund other than the funds in the Collection Account, the Securities
Administrator shall promptly send a Notice of Final Distribution to the
applicable Certificateholders. If Avelo exercises its option to terminate the
Trust Fund pursuant to clause (a) of Section 11.01, or if an Auction Call is
requested pursuant to clause (b) of such Section, the Master Servicer,
pursuant to the applicable Step 2 Assignment Agreements and by no later than
the tenth (10th) day of the month of final distribution, shall notify the
Trustee, each Servicer and the Securities Administrator of the final
Distribution Date and of the applicable sale price of the Mortgage Loans and
REO Properties.
A Notice of Final Distribution, specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment of
the final distribution and cancellation, shall be given promptly by the
Securities Administrator by letter to Certificateholders mailed not later than
the fifteenth (15th) day of the month of such final distribution. Any such
Notice of Final Distribution shall specify (a) the Distribution Date upon which
final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable to such Distribution Date is not applicable,
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distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Securities Administrator
will give such Notice of Final Distribution to each Rating Agency at the time
such Notice of Final Distribution is given to Certificateholders.
In the event the Mortgage Loans (and REO Properties) and all
rights and obligations under the Servicing Agreements are purchased or sold
pursuant to Section 11.01 and pursuant to the applicable Step 2 Assignment
Agreement, the Master Servicer on behalf of the Trustee is required thereunder
to remit to the Securities Administrator the applicable Termination Price on the
applicable Remittance Date immediately preceding the applicable final
Distribution Date. Upon such final deposit with respect to the Trust Fund and
the receipt by the Securities Administrator and the Custodians of a request for
release therefor in the form of Exhibit L, Exhibit L-1 or Exhibit L-2, as
applicable, the Master Servicer shall direct the Custodians to release and the
relevant Custodians shall promptly release to the Master Servicer or its
designee the Custodial Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the
Securities Administrator shall cause to be distributed to the Certificateholders
of each Class (after reimbursement of all amounts due the Depositor, the Master
Servicer, the Securities Administrator, the Trustee and the Custodians
hereunder), in each case on the final Distribution Date and in the order set
forth in Section 4.01, in proportion to their respective Percentage Interests,
with respect to Certificateholders of the same Class, an amount up to an amount
equal to (i) as to each Class of Regular Certificates (except the Class X
Certificates), the Certificate Balance thereof plus for each such Class and the
Class X Certificates accrued interest thereon in the case of an interest-bearing
Certificate and all other amounts to which such Classes are entitled pursuant to
Section 4.01, and (ii) as to the Residual Certificates, the amount, if any,
which remains on deposit in the Distribution Account after application pursuant
to clause (i) above (other than the amounts retained to meet claims). The
foregoing provisions are intended to distribute to each Class of Regular
Certificates any accrued and unpaid interest and principal to which they are
entitled based on the Pass-Through Rates and actual Class Certificate Balances
or notional principal balances set forth in the Preliminary Statement upon
liquidation of the Trust Fund.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six (6) months after the date
specified in the above mentioned written notice, the Securities Administrator
shall give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. If within six months after the second notice all the
applicable Certificates shall not have been surrendered for cancellation, the
Securities Administrator may take appropriate steps, or may appoint an agent to
take appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets which remain a part of the Trust Fund. If within one (1)
year after the second notice all Certificates shall not have been surrendered
for cancellation, the Class R Certificateholders shall be entitled to all
unclaimed funds and other assets of the Trust Fund which remain subject hereto.
Section 11.03 Additional Termination Requirements. In the
event the Avelo Call or the Auction Call is exercised as provided in Section
11.01, the Trust Fund shall be terminated in accordance with the following
additional requirements, unless the Trustee and the Securities
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Administrator have been supplied with an Opinion of Counsel, at the expense of
the entity exercising the call right, to the effect that the failure to comply
with the requirements of this Section 11.03 will not (i) result in the
imposition of taxes on "prohibited transactions" on any Trust REMIC as defined
in Section 860F of the Code, or (ii) cause any Trust REMIC to fail to qualify
as a REMIC at any time that any Certificates are outstanding:
(a) The Securities Administrator on behalf of the Trustee
shall sell all of the assets of the Trust Fund to the entity with the highest
bid received pursuant to the Auction Call and, by the next Distribution Date
after such sale, shall distribute to the Certificateholders the proceeds of
such sale in complete liquidation of each of the Trust REMICs; and
(b) The Securities Administrator shall attach a statement to
the final federal income tax return for each of the Trust REMICs stating that
pursuant to Treasury Regulations Section 1.860F-1, the first day of the ninety
(90) day liquidation period for each such Trust REMIC was the date on which
the Securities Administrator on behalf of the Trustee sold the assets of the
Trust Fund to the entity with the highest bid received pursuant to the Auction
Call.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment. This Agreement may be amended from
time to time by the Depositor, the Master Servicer, the Securities
Administrator, the Custodians and the Trustee (and the Master Servicer may
request an amendment or consent to any amendment of a Servicing Agreement as
directed by the Depositor) without the consent of any of the
Certificateholders (i) to cure any ambiguity or mistake, (ii) to correct any
defective provision herein or in the applicable Servicing Agreement, or to
supplement any provision in this Agreement which may be inconsistent with any
other provision herein or in the applicable Servicing Agreement, (iii) to add
to the duties of the Depositor, or the Trustee (or with respect to the
applicable Servicing Agreement, of the applicable Servicer) the Master
Servicer, the Securities Administrator or the Custodians, (iv) to add any
other provisions with respect to matters or questions arising hereunder or
under the applicable Servicing Agreement, (v) to cause the provisions herein
to conform to or be consistent with or in furtherance of the statements made
with respect to the Certificates, the Trust Fund or this Agreement in the
Prospectus Supplement, or to correct or supplement any provision herein which
may be inconsistent with any other provisions herein or with the provisions of
any underlying purchase or servicing agreement or (vi) to modify, alter,
amend, add to or rescind any of the terms or provisions contained in this
Agreement or in the applicable Servicing Agreement; provided, that any action
pursuant to clause (iv) or (vi) above shall not, as evidenced by an Opinion of
Counsel (which Opinion of Counsel shall be an expense of the requesting party,
but in any case shall not be an expense of the Trustee, the Master Servicer,
the Securities Administrator, the Custodians or the Trust Fund, and shall be
addressed to the foregoing entities), adversely affect in any material respect
the interests of any Certificateholder; provided, further, that the amendment
shall not be deemed to adversely affect in any material respect the interests
of the Certificateholders if the Person requesting the amendment obtains a
letter from each Rating Agency stating that the amendment would not result in
the downgrading or withdrawal of the respective ratings then assigned to the
Certificates; it being understood and agreed that any such letter in and of
itself will not represent
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a determination as to the materiality of any such amendment and will represent
a determination only as to the credit issues affecting any such rating. The
Trustee, the Depositor, the Custodians, the Securities Administrator and the
Master Servicer also may at any time and from time to time amend this
Agreement (and the Master Servicer shall request the Servicers amend the
applicable Servicing Agreements), without the consent of the
Certificateholders, to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or helpful to (i) maintain the qualification
of each Trust REMIC under the REMIC Provisions, (ii) avoid or minimize the
risk of the imposition of any tax on any Trust REMIC pursuant to the Code that
would be a claim at any time prior to the final redemption of the Certificates
or (iii) comply with any other requirements of the Code; provided, that the
Trustee and the Master Servicer have been provided an Opinion of Counsel,
which opinion shall be an expense of the party requesting such opinion but in
any case shall not be an expense of the Trustee or the Trust Fund, to the
effect that such action is necessary or helpful to, as applicable, (i)
maintain such qualification, (ii) avoid or minimize the risk of the imposition
of such a tax or (iii) comply with any such requirements of the Code.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Custodians, the Securities Administrator and
the Trustee (and the Master Servicer shall consent to any amendment to the
applicable Servicing Agreement as directed by the Depositor) with the consent of
the Holders of Certificates evidencing Percentage Interests aggregating not less
than 66?% of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments required to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in
clause (i), without the consent of the Holders of Certificates of such Class
evidencing, as to such Class, Percentage Interests aggregating not less than
66?%, or (iii) reduce the aforesaid percentages of Certificates the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee and the Master Servicer shall not consent to any amendment to this
Agreement or any Servicing Agreement unless (i) each shall have first received
an Opinion of Counsel, which opinion shall not be an expense of the Trustee, the
Master Servicer or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any Trust REMIC or the Certificateholders or
cause any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding and (ii) the party seeking such amendment shall
have provided written notice to the Rating Agencies (with a copy of such notice
to the Trustee and the Master Servicer) of such amendment, stating the
provisions of the Agreement to be amended.
Notwithstanding the foregoing provisions of this Section
12.01, with respect to any amendment that significantly modifies the permitted
activities of the Trustee or a Servicer under the applicable Servicing
Agreement, any Certificate beneficially owned by the Depositor or any of its
Affiliates or by the Responsible Party or any of its Affiliates shall be deemed
not to be outstanding (and shall not be considered when determining the
percentage of
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Certificateholders consenting or when calculating the total number
of Certificates entitled to consent) for purposes of determining if the
requisite consents of Certificateholders under this Section 12.01 have been
obtained.
Promptly after the execution of any amendment to this
Agreement or any Servicing Agreement requiring the consent of
Certificateholders, the Master Servicer shall furnish written notification of
the substance or a copy of such amendment to each Certificateholder and each
Rating Agency.
It shall not be necessary for the consent of
Certificateholders under this Section 12.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee, the
Custodians, the Master Servicer or the Securities Administrator to enter into an
amendment which modifies its obligations or liabilities without its consent and
in all cases without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee, the Custodians, the Master Servicer, the Securities
Administrator or the Trust Fund), satisfactory to the Trustee, the Master
Servicer or the Securities Administrator, as applicable, that (i) such amendment
is permitted and is not prohibited by this Agreement or the applicable Servicing
Agreement and that all requirements for amending this Agreement or such
Servicing Agreement have been complied with; and (ii) either (A) the amendment
does not adversely affect in any material respect the interests of any
Certificateholder or (B) the conclusion set forth in the immediately preceding
clause (A) is not required to be reached pursuant to this Section 12.01.
Notwithstanding the Trustee's consent to, or the Master
Servicer's request for, any amendment of any Servicing Agreement pursuant to the
terms of this Section 12.01, such Servicing Agreement cannot be amended without
the consent of the applicable Servicer. Neither the Master Servicer nor the
Trustee shall be responsible for any failure by such Servicer to consent to any
amendment to the applicable Servicing Agreement.
Notwithstanding the foregoing, any amendment to this Agreement
shall require the prior written consent of the Swap Provider, if such amendment
materially and adversely affects the rights or interests of the Swap Provider.
Section 12.02 Recordation of Agreement; Counterparts. This
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in
which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such
recordation shall be caused to be effected by the Depositor at the expense of
the Trust, but only if an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders is delivered to the Depositor.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number
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of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same instrument.
Section 12.03 Governing Law. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE
OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF
NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND
THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.04 Intention of Parties. It is the express intent
of the parties hereto that the conveyance (i) of the Mortgage Loans by the
Depositor and (ii) of the Trust Fund by the Depositor to the Trustee each be,
and be construed as, an absolute sale thereof. It is, further, not the
intention of the parties that such conveyances be deemed a pledge thereof.
However, in the event that, notwithstanding the intent of the parties, such
assets are held to be the property of the Depositor, or if for any other
reason this Agreement is held or deemed to create a security interest in
either of such assets, then (i) this Agreement shall be deemed to be a
security agreement within the meaning of the Uniform Commercial Code of the
State of New York and (ii) the conveyances provided for in this Agreement
shall be deemed to be an assignment and a grant by the Depositor to the
Trustee, for the benefit of the Certificateholders, of a security interest in
all of the assets transferred, whether now owned or hereafter acquired.
The Depositor, for the benefit of the Certificateholders,
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. The Depositor shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted or assigned to the Trustee for the
benefit of the Certificateholders.
Section 12.05 Notices. (a) The Securities Administrator
shall use its best efforts to promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) Any material change or amendment to this
Agreement;
(ii) The occurrence of any Event of Default that has
not been cured;
(iii) The resignation or termination of a Servicer,
Master Servicer, Securities Administrator or the Trustee and
the appointment of any successor;
(iv) The repurchase or substitution of Mortgage Loans
pursuant to this Agreement or the Sale Agreements; and
(v) The final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly
make available on its internet website to each Rating Agency copies of the
following:
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(i) Each report to Certificateholders described in
Section 4.02.
(ii) The Servicer's annual statement of compliance and
the accountant's report described in the Servicing
Agreements; and
(iii) Any notice of a purchase of a Mortgage Loan
pursuant to this Agreement and any Sale Agreement.
(c) All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to: (a) in the case
of the Depositor, the Purchaser or the Goldman Conduit, to Xxxxxxx, Sachs & Co.,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Principal Finance
Group/Xxxxxxxxxxx X. Xxxxxxx and Asset Management Group/Senior Asset Manager, or
such other address as may be hereafter furnished to the Securities Administrator
by the Depositor in writing; (b) in the case of Avelo, to Avelo Mortgage,
L.L.C., 000 X. Xxx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention:
President and General Counsel, or such other address as may be hereafter
furnished to the Depositor and the Securities Administrator by Avelo in writing;
(c) in the case of Countrywide and Countrywide Servicing, to Countrywide Home
Loans Servicing LP, 0000 Xxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Investor Accounting, or such other address as may be hereafter furnished to the
Depositor and the Securities Administrator by Countrywide Servicing in writing;
(d) in the case of BNY as Custodian, to The Bank of New York, 0000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, or such other address as may be
hereafter furnished to the Depositor and the Securities Administrator by BNY in
writing; (e) in the case of GreenPoint, to GreenPoint Mortgage Funding, Inc.,
000 Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxx, or such
other address as may be hereafter furnished to the Depositor and the Securities
Administrator by GreenPoint in writing; (f) in the case of IndyMac, IndyMac
Bank, F.S.B., 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, or such
other address as may be hereafter furnished to the Depositor and the Securities
Administrator by IndyMac in writing; (g) in the case of SunTrust, SunTrust
Mortgage, Inc., 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, or such other
address as may be hereafter furnished to the Depositor, the Securities
Administrator and the Swap Provider by SunTrust in writing; (h) in the case of
the Trustee or the Securities Administrator to its Corporate Trust Office, or
such other address as the Trustee or the Securities Administrator may hereafter
furnish to the Depositor; (i) in the case of the Master Servicer and the
Securities Administrator, Xxxxx Fargo Bank, National Association, X.X. Xxx 00,
Xxxxxxxx, Xxxxxxxx 00000, Attention: GSAA 2006-17, or such other address as may
be hereafter furnished to the Depositor and the Securities Administrator by the
Master Servicer in writing; (j) in the case of Deutsche Bank as a Custodian,
Deutsche Bank National Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000, Attention: Mortgage Custody - GS0617; (k) in the case of U.S.
Bank, U.S. Bank National Association, 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xx. Xxxx,
Xxxxxxxxx 00000, Attention: GSAA Home Equity Trust 2006-17; (l) in the case of
the Swap Provider, to the related Swap Provider addressed to it at the address
specified in the Interest Rate Swap Agreement or at any other address previously
furnished in writing to the Trust by the related Swap Provider; and (o) in the
case of each of the Rating Agencies, the address specified therefor in the
definition corresponding to the name of such Rating Agency. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
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Section 12.06 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or of
the Certificates or the rights of the Holders thereof.
Section 12.07 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as herein
provided, and unless the Holders of Certificates evidencing not less than 25% of
the Voting Rights evidenced by the Certificates shall also have made written
request to the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby, and the Trustee, for sixty (60) days after its
receipt of such notice, request and offer of indemnity shall have neglected or
refused to institute any such action, suit or proceeding; it being understood
and intended, and being expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the Certificates,
or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Agreement, except in the manner herein
provided and for the common benefit of all Certificateholders. For the
protection and enforcement of the provisions of this Section 12.07, each and
every Certificateholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
Section 12.08 Certificates Nonassessable and Fully Paid. It
is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Trust Fund, that the interests in the
Trust Fund represented by the Certificates shall be nonassessable for any
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reason whatsoever, and that the Certificates, upon due authentication thereof
by the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 12.09 Waiver of Jury Trial. EACH PARTY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY
APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE
ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE
SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
Section 12.10 Rights of the Swap Provider. The Swap Provider
shall be deemed a third party beneficiary of this Agreement to the same extent
as if it were a party hereto, and shall have the right to enforce its rights
under this Agreement,
ARTICLE XIII
EXCHANGE ACT REPORTING
Section 13.01 Filing Obligations.
The Master Servicer, the Trustee, the Securities
Administrator and each Custodian shall reasonably cooperate with the Depositor
and Securities Administrator in connection with the satisfaction of the
Depositor's reporting requirements under the Exchange Act with respect to the
Trust Fund. In addition to the information specified below, if so requested by
the Depositor in writing for the purpose of satisfying its reporting
obligation under the Exchange Act, the Master Servicer, the Trustee, the
Securities Administrator and each Custodian shall (and the Master Servicer
shall cause each Servicer and subservicer to) provide the Depositor with (a)
such information which is available to such Person without unreasonable effort
or expense and within such timeframe as may be reasonably requested by the
Depositor to comply with the Depositor's reporting obligations under the
Exchange Act and (b) to the extent such Person is a party (and the Depositor
is not a party) to any agreement or amendment required to be filed, copies of
such agreement or amendment in XXXXX-compatible form.
In the event that the Securities Administrator becomes aware
that it will be unable to timely file with the Commission all or any required
portion of any Form 8-K, 10-D or 10-K required to be filed by this Agreement
because required disclosure information was either not delivered to it or
delivered to it after the delivery deadlines set forth in this Agreement or for
any other reason, the Securities Administrator will promptly notify the
Depositor. In the case of Form 10-D and 10-K, the parties to this Agreement will
cooperate and cause such other Servicers or Servicing Function Participants, as
applicable, to cooperate, to prepare and file a Form 12b-25 and a 10-DA and
10-KA as applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of
Form 8-K, the Securities Administrator will, upon receipt of all required Form
8-K Disclosure Information and upon the approval and direction of the Depositor,
include such disclosure information on the next Form 10-D unless directed by the
Depositor to file a Form 8-K with such Form 8-K Disclosure Information. In the
event that any previously filed Form 8-K, Form 10-D or Form 10-K needs to be
amended, the Securities Administrator shall notify the Depositor and
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prepare any necessary Form 8-KA, Form 10-DA or Form 10-KA. Any Form 15, Form
12b-25 or any amendment to Form 8-K or Form 10-D shall be signed by a duly
authorized representative of the Master Servicer. Any amendment to Form 10-K
shall be signed by the Depositor. The parties to this Agreement acknowledge
that the performance by the Securities Administrator of its duties under this
Section 13.01 related to the timely preparation and filing of Form 15, a Form
12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is contingent upon
each such party performing its duties under this Section. The Securities
Administrator shall have no liability for any loss, expense, damage or claim
arising out of or with respect to any failure to properly prepare and/or
timely file any such Form 15, Form 12b-25 or any amendments to Form 8-K, Form
10-D or Form 10-K, where such failure results from the Securities
Administrator's inability or failure to receive on a timely basis, any
information from or on behalf of any other party hereto needed to prepare,
arrange for execution or file such Form 15, Form 12b-25 or any amendments to
Forms 8-K, 10-D or 10-K, not resulting from its own negligence, bad faith or
willful misconduct.
The Securities Administrator shall promptly file, and exercise
its reasonable best efforts to obtain a favorable response to, no-action
requests, or other appropriate exemptive relief with the Commission seeking the
usual and customary exemption from such reporting requirements granted to
issuers of securities similar to the Certificates if and to the extent the
Depositor shall deem any such relief to be necessary or appropriate. Unless
otherwise advised by the Depositor, the Securities Administrator shall assume
that the Depositor is in compliance with the preceding sentence. In no event
shall the Securities Administrator have any liability for the execution or
content of any document required to be filed by the 1934 Act. The Depositor
agrees to promptly furnish to the Securities Administrator, from time to time
upon request, such further information, reports, and financial statements within
its control related to the Trust Agreement and the Mortgage Loans as the
Depositor reasonably deems appropriate to prepare and file all necessary reports
with the Commission.
Section 13.02 Form 8-K Filings.
The Depositor shall prepare or cause to be prepared the
initial current report on Form 8-K. Thereafter within four (4) Business Days
after the occurrence of an event requiring disclosure in a current report on
Form 8-K (each such event, a "Reportable Event"), and if requested by the
Depositor, the Master Servicer shall sign on behalf of the Depositor and the
Securities Administrator shall prepare and file with the Commission any Form
8-K, as required by the Exchange Act. Any disclosure or information related to a
Reportable Event or that is otherwise required to be included on Form 8-K ("Form
8-K Disclosure Information") shall be determined and prepared by and at the
direction of the Depositor pursuant to this Section 13.02 and the Securities
Administrator shall have no duty or liability for any failure hereunder to
determine or prepare any Form 8-K Disclosure Information or any Form 8-K, except
as set forth in this Section 13.02.
As set forth on Exhibit M hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than the end of
business on the second Business Day after the occurrence of a Reportable Event
each of the Securities Administrator, the Custodians, the Master Servicer and
the Depositor shall be required to provide to the Securities Administrator and
Depositor, to the extent known, in XXXXX-compatible form, or in such other
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form as otherwise agreed upon by the Securities Administrator and such party,
the form and substance of any Form 8-K Disclosure Information, if applicable
and (ii) the Depositor shall approve, as to form and substance, or disapprove,
as the case may be, the inclusion of the Form 8-K Disclosure Information. The
Depositor shall be responsible for any reasonable fees and expenses assessed
or incurred by the Securities Administrator in connection with including any
Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph.
After preparing the Form 8-K, the Securities Administrator
shall forward electronically a draft copy of the Form 8-K to the Depositor for
review. No later than 12:00 noon New York City time on the fourth (4th) Business
Day after the Reportable Event, a duly authorized representative of the Master
Servicer shall sign the Form 8-K and return such signed Form 8-K to the
Securities Administrator, and no later than 5:30 p.m. New York City time on such
Business Day the Securities Administrator shall file such Form 8-K with the
Commission. If a Form 8-K cannot be filed on time or if a previously filed Form
8-K needs to be amended, the Securities Administrator will follow the procedures
set forth in Section 13.01. Promptly (but no later than one (1) Business Day)
after filing with the Commission, the Securities Administrator will, make
available on its internet website (located at xxx.xxxxxxx.xxx) a final executed
copy of each Form 8-K prepared by the Securities Administrator. The signing
party at the Master Servicer can be contacted at 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust, GSAA 2006-17, by
e-mail at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile (000) 000-0000.
The parties to this Agreement acknowledge that the performance by the Securities
Administrator of its duties under this Section 13.02 related to the timely
preparation and filing of Form 8-K is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under this
Section 13.02. The Securities Administrator shall have no liability for any
loss, expense, damage, claim arising out of or with respect to any failure to
properly prepare and/or timely file such Form 8-K, where such failure results
from the Securities Administrator's inability or failure to receive on a timely
basis, any information from any other party hereto (other than an Affiliate)
needed to prepare, arrange for execution or file such Form 8-K, not resulting
from its own negligence, bad faith or willful misconduct.
Section 13.03 Form 10-D Filings.
Within fifteen days after each Distribution Date (subject to
permitted extensions under the Exchange Act and until a Form 15 is filed
pursuant to Section 13.05), the Securities Administrator shall prepare and file
with the Commission, and the Master Servicer shall sign on behalf of the
Depositor any distribution report on Form 10-D required by the Exchange Act, in
form and substance as required by the Exchange Act. The Securities Administrator
shall file each Form 10-D with a copy of the related Monthly Statement attached
thereto. Any disclosure in addition to the monthly statement that is required to
be included on Form 10-D ("Additional Form 10-D Disclosure") shall be determined
and prepared by and at the direction of the Depositor pursuant to the following
paragraph and the Securities Administrator will have no duty or liability for
any failure hereunder to determine or prepare any Additional Form 10-D
Disclosure, except as set forth in this Section 13.03.
As set forth on Exhibit N hereto, within five (5) calendar
days after the related Distribution Date, (i) certain parties to the GSAA Home
Equity Trust 2006-17 Asset-Backed
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Certificates transaction shall be required to provide to the Securities
Administrator and the Depositor, to the extent known, in XXXXX-compatible
form, or in such other form as otherwise agreed upon by the Securities
Administrator and such party, the form and substance of any Additional Form
10-D Disclosure, if applicable and (ii) the Depositor will approve, as to form
and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-D Disclosure on Form 10-D. The Depositor shall be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with any Additional Form 10-D
Disclosure on Form 10-D pursuant to this Section 13.03.
After preparing the Form 10-D, the Securities Administrator
shall forward electronically a draft copy of the Form 10-D to the Depositor for
review. No later than fifteen days after the related Distribution Date, a duly
authorized representative of the Master Servicer shall sign the Form 10-D and
return such signed Form 10-D to the Securities Administrator and Depositor, and
no later than 5:30 p.m. New York City time on such day the Securities
Administrator shall file such Form 10-D with the Commission. If a Form 10-D
cannot be filed on time or if a previously filed Form 10-D needs to be amended,
the Securities Administrator will follow the procedures set forth in Section
13.01. Promptly (but no later than one (1) Business Day) after filing with the
Commission, the Securities Administrator will make available on its internet
website (located at xxx.xxxxxxx.xxx) a final executed copy of each Form 10-D
prepared by the Securities Administrator. The signing party at the Master
Servicer can be contacted at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust, GSAA 2006-17, by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile (000) 000-0000. Each party
to this Agreement acknowledges that the performance by the Securities
Administrator of its duties under this Section 13.03 related to the timely
preparation and filing of Form 10-D is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under this
Section 13.03. The Securities Administrator shall have no liability for any
loss, expense, damage or claim arising out of or with respect to any failure to
properly prepare and/or timely file such Form 10-D, where such failure results
from the Securities Administrator's inability or failure to receive on a timely
basis, any information from any other party hereto needed to prepare, arrange
for execution or file such Form 10-D, not resulting from its own negligence, bad
faith or willful misconduct.
Form 10-D requires the registrant to indicate (by checking
"yes" or "no") that it "(1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for
such shorter period that the registrant was required to file such reports), and
(2) has been subject to such filing requirements for the past 90 days." The
Depositor shall notify the Securities Administrator in writing, no later than
the fifth calendar day after the related Distribution Date with respect to the
filing of a report on Form 10-D if the answer to the questions should be "no".
The Securities Administrator shall be entitled to rely on such representations
in preparing, executing and/or filing any such report.
Section 13.04 Form 10-K Filings.
Within 90 days after the end of each fiscal year of the Trust
or such earlier date as may be required by the Exchange Act (the "10-K Filing
Deadline") (it being understood that the fiscal year for the Trust ends on
December 31 of each year), commencing in March 2007 and continuing until the
Trust has been deregistered with the Commission, the Securities
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Administrator shall prepare and file on behalf of the Depositor an annual
report on Form 10-K, in form and substance as required by the Exchange Act.
Each such Form 10-K shall include the following items, in each case to the
extent they have been delivered to the Securities Administrator within the
applicable time frames set forth in this Agreement and the related Servicing
Agreement: (i) an annual compliance statement for each Servicer, each
Additional Servicer and the Master Servicer (each such party, a "Reporting
Servicer") as described below, (ii)(A) the annual reports on assessment of
compliance with servicing criteria for each Reporting Servicer, as described
under this Section 13.04 and Section 13.07, and (B) if each Reporting
Servicer's report on assessment of compliance with servicing criteria
described under Section 13.04 and Section 13.07 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if each Reporting Servicer's report on assessment of
compliance with servicing criteria described under Section 13.04 and Section
13.07 is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included,
(iii)(A) the registered public accounting firm attestation report for each
Reporting Servicer, as described under Section 13.07, and (B) if any
registered public accounting firm attestation report described under Section
13.07 identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any such registered public
accounting firm attestation report is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included, and (iv) a Xxxxxxxx-Xxxxx Certification as described
in Section 13.06. Any disclosure or information in addition to the disclosure
or information specified in items (i) through (iv) above that is required to
be included on Form 10-K ("Additional Form 10-K Disclosure") shall be
determined and prepared by and at the direction of the Depositor pursuant to
the following paragraph and the Securities Administrator shall have no duty or
liability for any failure hereunder to determine or prepare any Additional
Form 10-K Disclosure, except as set forth in this Section 13.04.
The Master Servicer and the Securities Administrator shall
deliver (and the Master Servicer and Securities Administrator shall cause any
Additional Servicer engaged by it to deliver) to the Depositor and the
Securities Administrator on or before March 15 of each year, commencing in March
2007, an Officer's Certificate stating, as to the signer thereof, that (i) a
review of such party's activities during the preceding calendar year or portion
thereof and of such party's performance under this Agreement, or such other
applicable agreement in the case of an Additional Servicer, has been made under
such officer's supervision and (ii) to the best of such officer's knowledge,
based on such review, such party has fulfilled all its obligations under this
Agreement, or such other applicable agreement in the case of an Additional
Servicer, in all material respects throughout such year or portion thereof, or,
if there has been a failure to fulfill any such obligation in any material
respect, specifying each such failure known to such officer and the nature and
status thereof. Promptly after receipt of each such officer's certificate, the
Depositor shall review such officer's certificate and consult with each such
party, as applicable, as to the nature of any failures by such party, in the
fulfillment of any of such party's obligations hereunder or, in the case of an
Additional Servicer, under such other applicable agreement.
The Master Servicer shall enforce any obligation of the
Servicers, to the extent set forth in the related Servicing Agreement, to
deliver to the Master Servicer an annual statement of compliance within the time
frame set forth in, and in such form and substance as may be required pursuant
to, the related Servicing Agreement The Master Servicer shall include such
annual
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statements of compliance with its own annual statement of compliance to
be submitted to the Securities Administrator pursuant to this Section.
As set forth on Exhibit O hereto, no later than March 15 of
each year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2007 and continuing until the Trust has been deregistered with the
Commission, (i) certain parties to the GSAA Home Equity Trust 2006-17
Asset-Backed Certificates transaction shall be required to provide to the
Securities Administrator and the Depositor, to the extent known, in
XXXXX-compatible form, or in such other form as otherwise agreed upon by the
Securities Administrator and such party, the form and substance of any
Additional Form 10-K Disclosure, if applicable, and (ii) the Depositor shall
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Depositor
shall be responsible for any reasonable fees and expenses assessed or incurred
by the Securities Administrator in connection with including any Additional Form
10-K Disclosure on Form 10-K pursuant to this Section 13.04.
After preparing the Form 10-K, the Securities Administrator
shall forward electronically a draft copy of the Form 10-K to the Depositor for
review. No later than 12:00 noon New York City time on the fourth Business Day
prior to the 10-K Filing Deadline, a senior officer of the Depositor shall sign
the Form 10-K and return such signed Form 10-K to the Securities Administrator.
If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs
to be amended, the Securities Administrator will follow the procedures set forth
in 13.01. Promptly (but no later than one (1) Business Day) after filing with
the Commission, the Securities Administrator will make available on its internet
website located at (located at xxx.xxxxxxx.xxx) a final executed copy of each
Form 10-K prepared by the Securities Administrator. The parties to this
Agreement acknowledge that the performance by the Securities Administrator of
its duties under this Section 13.04 related to the timely preparation and filing
of Form 10-K is contingent upon such parties (and any Additional Servicer or
Servicing Function Participant) strictly observing all applicable deadlines in
the performance of their duties under this Section 13.04, Section 13.06, Section
13.01 and Section 13.07. The Securities Administrator shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare and/or timely file such Form 10-K, where such
failure results from the Securities Administrator's inability or failure to
receive on a timely basis, any information from any other party hereto needed to
prepare, arrange for execution or file such Form 10-K, not resulting from its
own negligence, bad faith or willful misconduct.
Form 10-K requires the registrant to indicate (by checking
"yes" or "no") that it "(1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for
such shorter period that the registrant was required to file such reports), and
(2) has been subject to such filing requirements for the past 90 days." The
Depositor shall notify the Securities Administrator in writing, no later than
March 15th if the answer to the questions should be "no". The Securities
Administrator shall be entitled to rely on such representations in preparing,
executing and/or filing any such report.
Section 13.05 Form 15 Filing.
124
Prior to January 30 of the first year in which the Securities
Administrator is able to do so under applicable law, the Securities
Administrator shall prepare, sign and file a Form 15 relating to the automatic
suspension of reporting in respect of the Trust Fund under the Exchange Act.
Section 13.06 Xxxxxxxx-Xxxxx Certification.
Each Form 10-K shall include a certification, (the
"Xxxxxxxx-Xxxxx Certification") required by Rules 13a-14(d) and 15(d)-14(d)
under the Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of
2002 and the rules and regulations of the Commission promulgated thereunder).
Each Servicer, the Securities Administrator and the Master Servicer shall cause
any Servicing Function Participant engaged by it to provide to the Person who
signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person"), by March 15 of
each year in which the Trust is subject to the reporting requirements of the
Exchange Act and otherwise within a reasonable period of time upon request, a
certification (each, a "Back-Up Certification"), in the form attached hereto as
Exhibit J-1 (in the case of the Master Servicer) and Exhibit J-2 (in the case of
the Securities Administrator), upon which the Certifying Person, the entity for
which the Certifying Person acts as an officer, and such entity's officers,
directors and Affiliates (collectively with the Certifying Person,
"Certification Parties") can reasonably rely. The Depositor shall serve as the
Certifying Person on behalf of the Trust. In the event that prior to the filing
date of the Form 10-K in March of each year, the Securities Administrator or the
Master Servicer has actual knowledge of information material to the
Xxxxxxxx-Xxxxx Certification, the Securities Administrator or the Master
Servicer, as the case may be, shall promptly notify the Depositor. The
respective parties hereto agree to cooperate with all reasonable requests made
by any Certifying Person or Certification Party in connection with such Person's
attempt to conduct any due diligence that such Person reasonably believes to be
appropriate in order to allow it to deliver any Xxxxxxxx-Xxxxx Certification or
portion thereof with respect to the Trust Fund. In the event the Master
Servicer, the Securities Administrator or any Servicing Function Participant
engaged by parties is terminated or resigns pursuant to the terms of this
Agreement, or any applicable sub-servicing agreement, as the case may be, such
party shall provide a Back-Up Certification to the Certifying Person pursuant to
this Section 13.06 with respect to the period of time it was subject to this
Agreement or any applicable sub-servicing agreement, as the case may be.
The Master Servicer shall enforce any obligation of the
Servicers, to the extent set forth in the related Servicing Agreement, to
deliver to the Master Servicer a certification similar to the Back-Up
Certification within the time frame set forth in, and in such form and substance
as may be required pursuant to, the related Servicing Agreement.
Section 13.07 Report on Assessment of Compliance and
Attestation.
(a) On or before March 15th of each calendar year,
commencing in 2007:
(1) Each of the Master Servicer, the Securities
Administrator and the Custodians shall deliver to the Depositor and the
Securities Administrator a report regarding the Master Servicer's, the
Securities Administrator's or Custodians', as applicable, assessment of
compliance with the Servicing Criteria applicable to it during the immediately
preceding
125
calendar year, as required under Rules 13a-18 and 15d-18 of the Exchange
Act and Item 1122 of Regulation AB; provided, however, the Securities
Administrator and Custodians shall deliver such report until a Form 15 is
filed pursuant to Section 13.06. Such report shall be signed by an authorized
officer of such Person and shall address each of the Servicing Criteria
applicable to it identified in Exhibit K hereto delivered to the Depositor
concurrently with the execution of this Agreement. To the extent any of the
Servicing Criteria so specified are not applicable to such Person, with
respect to asset-backed securities transactions taken as a whole involving
such Person and that are backed by the same asset type backing the
Certificates, such report shall include such a statement to that effect. The
Depositor and its respective officers and directors shall be entitled to rely
on upon each such servicing criteria assessment.
(2) Each of the Master Servicer, the Securities
Administrator and the Custodians shall deliver to the Depositor, the
Securities Administrator and the Master Servicer a report of a registered
public accounting firm that attests to, and reports on, the assessment of
compliance made by Master Servicer, the Securities Administrator or the
Custodians, as applicable, and delivered pursuant to the preceding paragraphs.
Such attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act, including,
without limitation that in the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report
why it was unable to express such an opinion. Such report must be available
for general use and not contain restricted use language. To the extent any of
the Servicing Criteria are not applicable to such Person, with respect to
asset-backed securities transactions taken as a whole involving such Person
and that are backed by the same asset type backing the Certificates, such
report shall include such a statement to that effect.
(3) The Master Servicer shall cause each Servicer and
Reporting Subcontractor to deliver to the Depositor an assessment of
compliance and accountant's attestation as and when provided in paragraphs (a)
and (b) of this Section 13.07.
(4) The Securities Administrator shall cause each
Reporting Subcontractor under its employ, if any, to deliver to the Depositor
and the Master Servicer an assessment of compliance and accountant's
attestation as and when provided in paragraphs (a) and (b) of this Section.
(b) Each assessment of compliance provided by the
Securities Administrator, the Master Servicer or the Custodians pursuant to
Section 13.07(a)(2) shall address each of the Servicing Criteria applicable to
it specified on a Exhibit K hereto delivered to the Depositor concurrently with
the execution of this Agreement or, in the case of a securities administrator,
master servicer or custodian subsequently appointed as such, on or prior to the
date of such appointment. An assessment of compliance provided by a
Subcontractor pursuant to Section 13.07(a)(3) or (4) need not address any
elements of the Servicing Criteria other than those specified pursuant to
Section 13.07(a)(1).
Section 13.08 Use of Subservicers and Subcontractors.
126
(a) The Master Servicer shall cause any subservicer used
by the Master Servicer and shall cause each Servicer to cause any subservicer
used by such servicer for the benefit of the Depositor to comply with the
provisions of this Article XIII to the same extent as if such Servicer or
subservicer were the Master Servicer (except with respect to the Master
Servicer's duties with respect to preparing and filing any Exchange Act Reports
or as the Certifying Person). The Master Servicer shall be responsible for
obtaining from each Servicer and subservicer and delivering to the Depositor any
servicer compliance statement required to be delivered by such Servicer or
subservicer pursuant to the second paragraph of Section 13.04, any assessment of
compliance and attestation required to be delivered by such Servicer or
subservicer under Section 13.07 and any certification required to be delivered
to the Certifying Person under Section 13.05 as and when required to be
delivered.
(b) It shall not be necessary for the Master Servicer,
any Servicer, any subservicer or the Securities Administrator to seek the
consent of the Depositor or any other party hereto to the utilization of any
Subcontractor. The Master Servicer or the Securities Administrator, as
applicable, shall promptly upon request provide to the Depositor (or any
designee of the Depositor, such as the Master Servicer or administrator) a
written description (in form and substance satisfactory to the Depositor) of the
role and function of each Subcontractor utilized by such Person (or in the case
of the Master Servicer, any Servicer or any subservicer), specifying (i) the
identity of each such Subcontractor, (ii) which (if any) of such Subcontractors
are "participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor
determined to be a Reporting Subcontractor, the Master Servicer or the
Securities Administrator, as applicable, shall cause any such Subcontractor used
by such Person (or in the case of the Master Servicer, any Servicer or any
subservicer) for the benefit of the Depositor to comply with the provisions of
Section 13.07 of this Agreement to the same extent as if such Subcontractor were
the Master Servicer (except with respect to the Master Servicer's duties with
respect to preparing and filing any Exchange Act Reports or as the Certifying
Person) or the Securities Administrator, as applicable. The Master Servicer or
the Securities Administrator, as applicable, shall be responsible for obtaining
from each Subcontractor and delivering to the Depositor and the Master Servicer,
any assessment of compliance and attestation required to be delivered by such
Subcontractor under Section 13.07, in each case as and when required to be
delivered.
127
IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
--------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST
COMPANY, solely in its capacity as
Trustee and Custodian and not in its
individual capacity
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
By:
-------------------------------
Name:
Title:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer and
Securities Administrator
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
[SIGNATURES CONTINUE]
Master Servicing and Trust Agreement
THE BANK OF NEW YORK, as a Custodian
By: /s/ Xxxxxxx X. Cottmier
-----------------------------
Name: Xxxxxxx X. Cottmier
Title: Assistant Treasurer
U.S. BANK NATIONAL ASSOCIATION, as a
Custodian
By: /s/ Xxxx X. Xxxx
-----------------------------
Name: Xxxx X. Xxxx
Title: Assistant Vice President
Solely for purposes of Sections 9.03(b) and 11.01
accepted and agreed to by:
AVELO MORTGAGE, L.L.C.
By: /s/ J. Xxxxxx Xxxxxxx
--------------------------------------------------
Name: J. Xxxxxx Xxxxxxx
Title: President
Master Servicing and Trust Agreement
SCHEDULE I
Mortgage Loan Schedule
[On File with the Securities Administrator as provided by the Depositor]
S-I-1
EXHIBIT A
FORM OF CLASS A-1, CLASS X-0, XXXXX X-0X, XXXXX X-0X,
CLASS M-1, CLASS M-2, CLASS M-3, CLASS M-4, CLASS M-5, CLASS M-6
CLASS B-1, CLASS B-2 AND CLASS B-3 CERTIFICATES
[To be added to the Class B-3 Certificates while they remain non-investment
grade Certificates: IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER THIS
CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR CERTIFICATE
(THE "TRANSFEROR CERTIFICATE") IN THE FORM OF EXHIBIT I TO THE AGREEMENT
REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR RECEIVES A RULE
144A LETTER (THE "RULE 144A LETTER") IN THE FORM OF EXHIBIT H TO THE AGREEMENT
REFERRED TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR RECEIVES AN OPINION OF
COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE
MADE WITHOUT-REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.]
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL BE
DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
[To be added to the Class B-3 Certificates while they remain Private
Certificates: NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR
EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A
PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR, IF THE
TRANSFEREE IS AN INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT IS USING THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR, TO
THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE
OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR,
THE TRUSTEE, THE MASTER SERVICER, THE SERVICERS OR THE SECURITIES ADMINISTRATOR
TO ANY OBLIGATION IN
A-1
ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE
REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES
ADMINISTRATOR, TRUSTEE AND DEPOSITOR AS DESCRIBED ABOVE SHALL BE VOID AND OF
NO EFFECT.]
IN THE EVENT THAT A TRANSFER OF A PRIVATE CERTIFICATE WHICH IS A BOOK-ENTRY
CERTIFICATE IS TO BE MADE IN RELIANCE UPON AN EXEMPTION FROM THE SECURITIES ACT
AND SUCH LAWS, IN ORDER TO ASSURE COMPLIANCE WITH THE SECURITIES ACT AND SUCH
LAWS, THE CERTIFICATEHOLDER DESIRING TO EFFECT SUCH TRANSFER WILL BE DEEMED TO
HAVE MADE AS OF THE TRANSFER DATE EACH OF THE CERTIFICATIONS SET FORTH IN THE
TRANSFEROR CERTIFICATE IN RESPECT OF SUCH CERTIFICATE AND THE TRANSFEREE WILL BE
DEEMED TO HAVE MADE AS OF THE TRANSFER DATE EACH OF THE CERTIFICATIONS SET FORTH
IN THE RULE 144A LETTER IN RESPECT OF SUCH CERTIFICATE, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT,"
AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN OTHER
ASSETS.
[To be added to the Class B-3 Certificates while they remain Private
Certificates: THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
A-2
Certificate No. :
Cut-off Date : October 1, 2006
First Distribution Date : November 27, 2006
Initial Certificate Balance of
this Certificate
("Denomination") :
------------
Initial Certificate Balances of
all Certificates of this Class : -------------- ---------
CUSIP
ISIN
A-3
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-17
Asset-Backed Certificates, Series 2006-17
[Class A-1][Class A-2][Class A-3A][Class A-3B]
[Class M-1][Class M-2][Class M-3][Class M-4][Class M-5][Class M-6]
[Class B-1][Class B-2][Class B-3]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable
monthly as set forth herein. Accordingly, the Certificate Balance at any time
may be less than the Certificate Balance as set forth herein. This Certificate
does not evidence an obligation of, or an interest in, and is not guaranteed by
the Depositor, the Master Servicer, the Securities Administrator or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain monthly
distributions pursuant to a Master Servicing and Trust Agreement dated as of the
Cut-off Date specified above (the "Agreement") among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Deutsche Bank National Trust Company, as
trustee (the "Trustee") and as a custodian, Xxxxx Fargo Bank, National
Association, as Master Servicer (in such capacity, the "Master Servicer") and
Securities Administrator (in such capacity, the "Securities Administrator"), The
Bank of New York, as a custodian, Deutsche Bank National Trust Company, as a
custodian and U.S. Bank National Association, as a custodian. To the extent not
defined herein, the capitalized terms used herein have the meanings assigned in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
A-4
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Securities
Administrator
By:
-------------------------------
Authenticated:
By:
-----------------------------------------
Authorized Signatory of
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
A-5
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-17
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAA Home Equity Trust 2006-17 Asset-Backed
Certificates, of the Series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest in
the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on the
first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the applicable Interest Accrual
Period for the related Distribution Date; provided, however, that for any
Definitive Certificates, the Record Date shall be the last Business Day of the
month immediately preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire
transfer of immediately available funds to the account of the Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Securities Administrator in writing
at least five (5) Business Days prior to the related Record Date and such
Certificateholder shall satisfy the conditions to receive such form of payment
set forth in the Agreement, or, if not, by check mailed by first class mail to
the address of such Certificateholder appearing in the Certificate Register. The
final distribution on each Certificate will be made in like manner, but only
upon presentment and surrender of such Certificate at the office designated by
the Securities Administrator for such purposes, or such other location specified
in the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Trustee and the other parties to the
Agreement with the consent of the Holders of Certificates affected by such
A-6
amendment evidencing the requisite Percentage Interest, as provided in the
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Securities Administrator upon surrender of
this Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Trustee, the Depositor and the Securities Administrator
and any agent of the Trustee, the Depositor or the Securities Administrator may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Trustee, the Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated
Principal Balance of the Mortgage Loans is less than or equal to 10% of the
Cut-off Date Pool Principal Balance, the Person specified in Section 11.01 of
the Agreement will have the option to effectuate the purchase, in whole, from
the Trust Fund all remaining Mortgage Loans and all property acquired in respect
of the Mortgage Loans at a purchase price determined and in the manner as
provided in the Agreement. The obligations and responsibilities created by this
Agreement will terminate as provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall
have the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
A-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto__________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a
new Certificate of a like denomination and Class, to the above named assignee
and deliver such Certificate to the following address:
-----------------------------------------------------------------------------.
Dated:
______________________________________________
Signature by or on behalf of assignor
A-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to________________________________________________,
_____________________________________________________________________________,
for the account of___________________________________________________________,
account number ______, or, if mailed by check, to____________________________.
Applicable statements should be mailed to____________________________________,
_____________________________________________________________________________.
This information is provided by_____________________________,
the assignee named above, or _________________________________________________,
as its agent.
A-9
EXHIBIT B
FORM OF CLASS P CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE (THE "TRANSFEROR CERTIFICATE") IN THE FORM OF EXHIBIT H TO THE
AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL,
DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE IS AN
INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION LETTER THAT IT IS USING THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR, TO
THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE
OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE MASTER SERVICER, THE DEPOSITOR OR THE SECURITIES ADMINISTRATOR TO ANY
OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY
LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE
REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES
ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
B-1
Certificate No. : 1
Cut-off Date : October 1, 2006
First Distribution Date : November 27, 2006
Percentage Interest of this
Certificate
("Denomination") : 100%
CUSIP :
ISIN :
B-2
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-17
Asset-Backed Certificates, Series 2006-17
Class P
evidencing a percentage interest in the distributions
allocable to the Certificates of the above referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Master
Servicer, the Securities Administrator or the Trustee referred to below or any
of their respective affiliates. Neither this Certificate nor the Mortgage Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_______________________] is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Master Servicing and
Trust Agreement dated as of the Cut-off Date specified above (the "Agreement")
among GS Mortgage Securities Corp., as depositor (the "Depositor"), Deutsche
Bank National Trust Company, as trustee (the "Trustee") and as a custodian,
Xxxxx Fargo Bank, National Association, as Master Servicer (in such capacity,
the "Master Servicer") and Securities Administrator (in such capacity, the
"Securities Administrator"), The Bank of New York, as a custodian and U.S. Bank
National Association, as a custodian. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
office designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made
unless such disposition is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and any applicable state
securities laws or is made in accordance with the 1933 Act and such laws. In the
event of any such transfer, the Securities Administrator shall require the
transferor to execute a transferor certificate (in substantially the form
attached to the Agreement) and deliver either (i) a Rule 144A Letter, (in
substantially the form attached to the Agreement), or (ii) a written Opinion of
Counsel to the Securities Administrator that such transfer may be made pursuant
to an exemption, describing the applicable exemption and the basis therefor,
from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of
Counsel shall be an expense of the transferor. No transfer of a Certificate of
this Class shall be made unless the Securities Administrator shall have received
either (i) a representation letter from the transferee
B-3
of such Certificate, acceptable to and in form and substance satisfactory to
the Securities Administrator, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code or any materially similar provisions of applicable federal, state or
local law ("Similar Law") or a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense
of the Securities Administrator, or (ii) if the transferee is an insurance
company and the certificate has been the subject of an ERISA-Qualifying
Underwriting, a representation letter that it is purchasing such Certificates
with the assets of its general account and that the purchase and holding of
such Certificates satisfy the requirements for exemptive relief under Sections
I and III of PTCE 95-60, or (iii) in the case of a Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or a
plan or arrangement subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments) or a plan subject to Similar Law, or
a trustee of any such plan or any other person acting on behalf of any such
plan or arrangement or using such plan's or arrangement's assets, an Opinion
of Counsel satisfactory to the Securities Administrator, which Opinion of
Counsel shall not be an expense of the Securities Administrator, the
Depositor, the Trustee or the Trust Fund, addressed to the Securities
Administrator, the Trustee and the Depositor to the effect that the purchase
and holding of such Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code
or any Similar Law and will not subject the Trustee to any obligation in
addition to those expressly undertaken in this Agreement or to any liability.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
B-4
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Securities
Administrator
By:
--------------------------------
Authenticated:
By:
-----------------------------------------
Authorized Signatory of
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
B-5
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-17
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAA Home Equity Trust 2006-17 Asset-Backed
Certificates, of the Series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest in
the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire
transfer of immediately available funds to the account of the Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Securities Administrator in writing
at least five (5) Business Days prior to the related Record Date and such
Certificateholder shall satisfy the conditions to receive such form of payment
set forth in the Agreement, or, if not, by check mailed by first class mail to
the address of such Certificateholder appearing in the Certificate Register. The
final distribution on each Certificate will be made in like manner, but only
upon presentment and surrender of such Certificate at the office designated by
the Securities Administrator for such purposes or such other location specified
in the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Trustee and the other parties to the Agreement with
the consent of the Holders of Certificates affected by such amendment evidencing
the requisite Percentage Interest, as provided in the Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future
B-6
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Securities Administrator upon surrender of
this Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Trustee, the Depositor and the Securities Administrator
and any agent of the Trustee, the Depositor or the Securities Administrator may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Trustee, the Depositor, the Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated
Principal Balance of the Mortgage Loans is less than or equal to 10% of the
Cut-off Date Pool Principal Balance, the Person specified in Section 11.01 of
the Agreement will have the option to effectuate the purchase, in whole, from
the Trust Fund all remaining Mortgage Loans and all property acquired in respect
of the Mortgage Loans at a purchase price determined and in the manner as
provided in the Agreement. The obligations and responsibilities created by this
Agreement will terminate as provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall
have the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
B-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a
new Certificate of a like denomination and Class, to the above named assignee
and deliver such Certificate to the following address: .
______________________________________________________________________________.
Dated:
______________________________________
Signature by or on behalf of assignor
B-8
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise,
in immediately available funds to_____________________________________________,
______________________________________________________________________________,
for the account of____________________________________________________________,
account number__________, or, if mailed by check, to _________________________,
Applicable statements should be mailed to ____________________________________,
______________________________________________________________________________.
This information is provided by ____,
the assignee named above, or,
as its agent.
B-9
EXHIBIT C
FORM OF CLASS R, CLASS RC AND CLASS RX CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN
SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY SIMILAR
PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") OR A PERSON
INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR AN OPINION OF
COUNSEL AS DESCRIBED IN THE AGREEMENT. IN THE EVENT THAT SUCH REPRESENTATION IS
VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR ARRANGEMENT SUBJECT TO
SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN
SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT WITHOUT AN
OPINION OF COUNSEL AS DESCRIBED IN THE AGREEMENT, SUCH ATTEMPTED TRANSFER OR
ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [R][RC][RX]
Cut-off Date : October 1, 2006
First Distribution Date : November 27, 2006
Initial Certificate Balance of this
Certificate ("Denomination") : $100
Initial Certificate Balance of all
Certificates of this Class: : $100
CUSIP :
ISIN :
C-1
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-17
Asset-Backed Certificates, Series 2006-17
Class [R][RC][RX]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as
set forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Master Servicer, the Securities Administrator or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This certifies that [____________] is the registered owner of the
Percentage Interest specified above of any monthly distributions due to the
Class [R][RC][RX] Certificates pursuant to a Master Servicing and Trust
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
GS Mortgage Securities Corp., as depositor (the "Depositor"), Deutsche Bank
National Trust Company, as trustee (the "Trustee") and as a custodian, Xxxxx
Fargo Bank, National Association, as Master Servicer (in such capacity, the
"Master Servicer") and Securities Administrator (in such capacity, the
"Securities Administrator"), The Bank of New York, as a custodian and U.S. Bank
National Association, as a custodian. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class [R][RC][RX]
Certificate at the office designated by the Securities Administrator for such
purposes.
No transfer of a Class [R][RC][RX] Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such transferee
is not an employee benefit plan or arrangement subject to Section 406 of ERISA,
a plan or arrangement subject to Section 4975 of the Code or a plan subject to
Similar Law, or a person acting on behalf of any such plan or arrangement or
using the assets of any such plan or arrangement to effect such transfer, which
representation letter shall not be an expense of the Securities Administrator or
the Trust Fund, or, alternatively, an opinion of counsel as described in the
Agreement. In the event that such representation is violated, or any attempt is
made to transfer to a plan or arrangement subject to Section 406 of ERISA or a
plan subject to Section 4975 of the Code or a plan subject to Similar Law, or a
person acting on behalf of any such plan or arrangement or using the assets of
any such plan or arrangement, without an opinion
C-2
of counsel as described in the Agreement, such attempted transfer or
acquisition shall be void and of no effect.
Each Holder of this Class [R][RC][RX] Certificate shall be deemed by
the acceptance or acquisition an Ownership Interest in this Class [R][RC][RX]
Certificate to have agreed to be bound by the following provisions, and the
rights of each Person acquiring any Ownership Interest in this Class [R][RC][RX]
Certificate are expressly subject to the following provisions: (i) each Person
holding or acquiring any Ownership Interest in this Class [R][RC][RX]
Certificate shall be a Permitted Transferee and shall promptly notify the
Securities Administrator of any change or impending change in its status as a
Permitted Transferee, (ii) no Ownership Interest in this Class [R][RC][RX]
Certificate may be registered on the Closing Date or thereafter transferred, and
the Securities Administrator shall not register the Transfer of this Certificate
unless, in addition to the certificates required to be delivered to the
Securities Administrator under Section 5.02(b) of the Agreement, the Securities
Administrator shall have been furnished with a Transfer Affidavit of the initial
owner or the proposed transferee in the form attached as Exhibit G to the
Agreement, (iii) each Person holding or acquiring any Ownership Interest in this
Class [R][RC][RX] Certificate shall agree (A) to obtain a Transfer Affidavit
from any other Person to whom such Person attempts to Transfer its Ownership
Interest this Class [R][RC][RX] Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of this Class [R][RC][RX] Certificate, (C) not to
cause income with respect to the Class [R][RC][RX] Certificate to be
attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person and (D) not to Transfer the Ownership Interest in this Class [R][RC][RX]
Certificate or to cause the Transfer of the Ownership Interest in this Class
[R][RC][RX] Certificate to any other Person if it has actual knowledge that such
Person is not a Permitted Transferee and (iv) any attempted or purported
Transfer of the Ownership Interest in this Class [R][RC][RX] Certificate in
violation of the provisions herein shall be absolutely null and void and shall
vest no rights in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
C-3
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Securities
Administrator
By:____________________________________
Authenticated:
By:
-----------------------------------------
Authorized Signatory of
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
C-4
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-17
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2006-17 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name this
Certificate is registered at the close of business on the applicable Record Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date for each Distribution Date is the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five (5)
Business Days prior to the related Record Date and such Certificateholder shall
satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office designated by the
Securities Administrator for such purposes, or such other location specified in
the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Trustee and the other parties to the Agreement with the
consent of the Holders of Certificates affected by such amendment evidencing the
requisite Percentage Interest, as provided in the Agreement. Any such consent by
the Holder of this Certificate shall be conclusive and binding on such Holder
C-5
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Securities Administrator upon surrender of this Certificate for
registration of transfer at the office designated by the Securities
Administrator for such purposes, accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the holder
hereof or such holder's attorney duly authorized in writing, and thereupon one
or more new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest in the Trust Fund will be
issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, the Depositor, the Securities Administrator and any agent
of the Trustee, the Depositor or the Securities Administrator may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Trustee or Securities Administrator,
nor any such agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 11.01 of the Agreement
will have the option to effectuate the purchase, in whole, from the Trust Fund
all remaining Mortgage Loans and all property acquired in respect of the
Mortgage Loans at a purchase price determined and in the manner as provided in
the Agreement. The obligations and responsibilities created by this Agreement
will terminate as provided in Section 11.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
C-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto___________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a
new Certificate of a like denomination and Class, to the above named assignee
and deliver such Certificate to the following address: .
Dated:
______________________________________
Signature by or on behalf of assignor
C-7
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise,
in immediately available funds to_____________________________________________,
______________________________________________________________________________,
for the account of____________________________________________________________,
account number __________, or, if mailed by check, to_________________________,
______________________________________________________________________________.
Applicable statements should be mailed to ____________________________________,
______________________________________________________________________________.
This information is provided by ______________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
C-8
EXHIBIT D
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER ASSETS
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE (THE "TRANSFEROR CERTIFICATE") IN THE FORM OF EXHIBIT H TO THE
AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR
RECEIVES A RULE 144A LETTER (THE "RULE 144A LETTER") IN THE FORM OF EXHIBIT I TO
THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR RECEIVES
AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH
TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE IS AN
INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION LETTER THAT IT IS USING THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR, TO
THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT CONSTITUTE
OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE MASTER SERVICER, THE DEPOSITOR OR THE SECURITIES ADMINISTRATOR TO ANY
OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY
LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE
REPRESENTATION
D-1
LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES
ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
Certificate No. : X-1
Cut-off Date : October 1, 2006
First Distribution Date : November 27, 2006
Percentage Interest of this
Certificate ("Denomination") : 100%
CUSIP :
ISIN :
D-2
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-17
Asset-Backed Certificates, Series 2006-17
Class X
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor the Master
Servicer, to Securities Administrator or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
This certifies that [_______________________] is the
registered owner of the Percentage Interest evidenced by this Certificate
(obtained by dividing the denomination of this Certificate by the aggregate of
the denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Master Servicing and
Trust Agreement dated as of the Cut-off Date specified above (the "Agreement")
among GS Mortgage Securities Corp., as depositor (the "Depositor"), Deutsche
Bank National Trust Company, as trustee (the "Trustee") and as a custodian,
Xxxxx Fargo Bank, National Association, as Master Servicer (in such capacity,
the "Master Servicer") and Securities Administrator (in such capacity, the
"Securities Administrator"), The Bank of New York, as a custodian and U.S. Bank
National Association, as a custodian. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
office designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made
unless such disposition is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and any applicable state
securities laws or is made in accordance with the 1933 Act and such laws. In the
event of any such transfer, the Securities Administrator shall require the
transferor to execute a transferor certificate (in substantially the form
attached to the Agreement) and deliver either (i) a Rule 144A Letter (in
substantially the form attached to the Agreement), or (ii) a written Opinion of
Counsel to the Securities Administrator that such transfer may be made pursuant
to an exemption, describing the applicable exemption and the basis therefor,
from the 1933 Act or is being made pursuant to the 1933 Act, which Opinion of
Counsel shall be an expense of the transferor. No transfer of a Certificate of
this Class shall be made unless the Securities Administrator shall have received
either (i) a representation letter from the transferee
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of such Certificate, acceptable to and in form and substance satisfactory to
the Securities Administrator, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code or any materially similar provisions of applicable federal, state or
local law ("Similar Law") or a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense
of the Securities Administrator, or (ii) if the transferee is an insurance
company and the certificate has been the subject of an ERISA-Qualifying
Underwriting, a representation letter that it is purchasing such Certificates
with the assets of its general account and that the purchase and holding of
such Certificates satisfy the requirements for exemptive relief under Sections
I and III of PTCE 95-60, or (iii) in the case of a Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or a
plan or arrangement subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments) or a plan subject to Similar Law, or
a trustee of any such plan or any other person acting on behalf of any such
plan or arrangement or using such plan's or arrangement's assets, an Opinion
of Counsel satisfactory to the Securities Administrator, which Opinion of
Counsel shall not be an expense of the Securities Administrator, the
Depositor, the Trustee or the Trust Fund, addressed to the Securities
Administrator, the Trustee and the Depositor to the effect that the purchase
and holding of such Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code
or any Similar Law and will not subject the Trustee to any obligation in
addition to those expressly undertaken in this Agreement or to any liability.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
D-4
IN WITNESS WHEREOF, the Securities Administrator has caused
this Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Securities
Administrator
By:
-------------------------------------
Authenticated:
By:
-----------------------------------------
Authorized Signatory of
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
D-5
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-17
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of
Certificates designated as GSAA Home Equity Trust 2006-17 Asset-Backed
Certificates, of the Series specified on the face hereof (herein collectively
called the "Certificates"), and representing a beneficial ownership interest in
the Trust Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in whose
name this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month of such Distribution Date.
Distributions on this Certificate shall be made by wire
transfer of immediately available funds to the account of the Holder hereof at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Securities Administrator in writing
at least five (5) Business Days prior to the related Record Date and such
Certificateholder shall satisfy the conditions to receive such form of payment
set forth in the Agreement, or, if not, by check mailed by first class mail to
the address of such Certificateholder appearing in the Certificate Register. The
final distribution on each Certificate will be made in like manner, but only
upon presentment and surrender of such Certificate at the office designated by
the Securities Administrator for such purposes or such other location specified
in the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Trustee and the other parties to the Agreement with
the consent of the Holders of Certificates affected by such amendment evidencing
the requisite Percentage Interest, as provided in the Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future
D-6
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Securities Administrator upon surrender of
this Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator duly executed
by the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the Trust
Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Trustee, the Depositor and the Securities Administrator
and any agent of the Trustee, the Depositor or the Securities Administrator may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Trustee, the Depositor, the Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated
Principal Balance of the Mortgage Loans is less than or equal to 10% of the
Cut-off Date Pool Principal Balance, the Person or Persons specified in Section
11.01 of the Agreement will have the option to effectuate the purchase, in
whole, from the Trust Fund all remaining Mortgage Loans and all property
acquired in respect of the Mortgage Loans at a purchase price determined and in
the manner as provided in the Agreement. The obligations and responsibilities
created by this Agreement will terminate as provided in Section 11.01 of the
Agreement.
Any term used herein that is defined in the Agreement shall
have the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
D-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto __________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust Fund.
I (We) further direct the Securities Administrator to issue a
new Certificate of a like denomination and Class, to the above named assignee
and deliver such Certificate to the following address:
-----------------------------------------------------------------------------.
Dated:
______________________________________
Signature by or on behalf of assignor
D-8
DISTRIBUTION INSTRUCTIONS
Distributions shall be made, by wire transfer or otherwise,
in immediately available funds to ___________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number ______, or, if mailed by check, to____________________________.
Applicable statements should be mailed to____________________________________,
_____________________________________________________________________________.
This information is provided by____________________________,
the assignee named above, or ________________________________________________,
as its agent.
D-9
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
[Trustee]
---------------------
---------------------
Re: Master Servicing and Trust Agreement, dated as of
October 1, 2006 (the "Agreement"), among GS Mortgage
Securities Corp., as depositor (the "Depositor"),
Deutsche Bank National Trust Company, as trustee (in
such capacity, the "Trustee"), The Bank of New York,
Deutsche Bank National Trust Company and U.S. Bank
National Association, each as a custodian, and Xxxxx
Fargo Bank, National Association, as master servicer
(in such capacity, the "Master Servicer") and
securities administrator (in such capacity, the
"Securities Administrator")
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Master
Servicing and Trust Agreement (the "Trust Agreement"), the undersigned, as
Custodian, for each Mortgage Loan listed in the Mortgage Loan Schedule for which
the undersigned is specified as the Custodian (other than any Mortgage Loan
listed in the attached exception report), it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse";
and
(ii) except with respect to a MERS Loan, an executed
Assignment of Mortgage (which may be included in a blanket
assignment or assignments).
Based on its review and examination and only as to the
foregoing documents, such documents appear regular on their face and related to
such Mortgage Loan.
The Custodian has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Trust Agreement. The Custodian makes no representations as to:
(i) the validity, legality, sufficiency, enforceability, recordability or
genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or the perfection or priority of any Mortgage. Notwithstanding anything
herein to the contrary, the Custodian has made no determination and makes no
representations as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or assignee
thereof, in
E-1
and to that Mortgage Note or (ii) any assignment is in recordable
form or sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Trust Agreement.
[DEUTSCHE BANK NATIONAL TRUST
COMPANY][THE BANK OF NEW YORK][U.S.
BANK NATIONAL ASSOCIATION], not in its
individual capacity, but solely as Custodian
By:_________________________________
Name:_______________________________
Title:________________________________
E-2
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Trustee]
---------------------
---------------------
Re: Master Servicing and Trust Agreement, dated as of
October 1, 2006 (the "Agreement"), among GS Mortgage
Securities Corp., as depositor (the "Depositor"),
Deutsche Bank National Trust Company, as trustee (in
such capacity, the "Trustee"), The Bank of New York,
Deutsche Bank National Trust Company and U.S. Bank
National Association, each as a custodian, and Xxxxx
Fargo Bank, National Association, as master servicer
(in such capacity, the "Master Servicer") and
securities administrator (in such capacity, the
"Securities Administrator")
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Master
Servicing and Trust Agreement (the "Trust Agreement"), the undersigned, as
Custodian, hereby certifies, subject to any exceptions listed on the exception
report attached hereto, that as to each Mortgage Loan listed in the Mortgage
Loan Schedule for which the undersigned is specified as the Custodian (other
than any Mortgage Loan paid in full or listed on the attached exception report)
it has received:
1. the original Mortgage Note, endorsed without recourse in
blank by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
2. the original Assignment of Mortgage in blank (or, in the
case of the Goldman Conduit Mortgage Loans, in form and substance acceptable
for recording or if the Mortgage is to be recorded, assigned to the Trustee or
in blank), unless the Mortgage Loan is a MERS Loan;
3. personal endorsement and/or guaranty agreements executed
in connection with all non individual Mortgage Loans (corporations,
partnerships, trusts, estates, etc. (if provided);
4. the related original Mortgage and evidence of its
recording or a certified copy of the Mortgage with evidence of recording
thereof;
F-1
5. originals of any intervening Mortgage assignment or
certified copies in either case necessary to show a complete chain of title
from the original mortgagee to the seller and evidencing recording; provided,
that, except in the case of the Goldman Conduit Mortgage Loans, the assignment
may be in the form of a blanket assignment or assignments, a copy of which
with evidence of recording shall be acceptable;
6. if provided, originals of all assumption, modification,
consolidation or extension agreements or certified copies thereof, in either
case with evidence of recording if required to maintain the lien of the
mortgage or if otherwise required, or, if recordation is not required, an
original or copy of the agreement; provided, that, in the case of the Goldman
Conduit Mortgage Loans, an original with evidence of recording thereon is
always required;
7. except with respect to the Countrywide Mortgage Loans,
(if applicable to the files held by the Custodian) an original or copy of a
title insurance policy or evidence of title;
8. to the extent applicable, an original power of attorney;
except in the case of the Goldman Conduit Mortgage Loans, (if applicable to
the files held by the Custodian) an original power of attorney or, in limited
circumstances as set forth in the applicable Servicing Agreement, a copy of
the power of attorney; and
9. except with respect to the Countrywide Mortgage Loans,
(if applicable to the files held by the Custodian) a security agreement,
chattel mortgage or equivalent document executed in connection with the
Mortgage, if any.
Based on its review and examination and only as to the
foregoing documents, (a) such documents appear regular on their face and related
to such Mortgage Loan, and (b) the information set forth in items 2, 8, 34 and
35 of the Mortgage Loan Schedule accurately reflects information set forth in
the Custodial File.
The Custodian has made no independent examination of any
documents contained in each Mortgage File beyond the review of the Custodial
File specifically required in the Trust Agreement. The Custodian makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan or the perfection or priority of any Mortgage. Notwithstanding anything
herein to the contrary, the Custodian has made no determination and makes no
representations as to whether (i) any endorsement is sufficient to transfer all
right, title and interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note or (ii) any assignment is in recordable
form or sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Trust Agreement.
[DEUTSCHE BANK NATIONAL TRUST
COMPANY][THE BANK OF NEW YORK][U.S.
BANK NATIONAL ASSOCIATION], not in its
F-2
individual capacity, but solely as
Custodian
By:_________________________________
Name:_______________________________
Title:________________________________
F-3
EXHIBIT G
FORM OF RESIDUAL TRANSFER AFFIDAVIT
GSAA Home Equity Trust 2006-17,
Asset-Backed Certificates, Series 2006-17
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________,
the proposed Transferee of an Ownership Interest in a Class [R][RC][RX]
Certificate (the "Certificate") issued pursuant to the Master Servicing and
Trust Agreement (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Deutsche Bank National Trust Company, as trustee
(the "Trustee"), Xxxxx Fargo Bank, National Association, as Master Servicer (in
such capacity, the "Master Servicer") and Securities Administrator (in such
capacity, the "Securities Administrator"), U.S. Bank National Association, as a
custodian, Deutsche Bank National Trust Company, as a custodian and The Bank of
New York, as a custodian. Capitalized terms used, but not defined herein, shall
have the meanings ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the Transferee
for the benefit of the Depositor, the Securities Administrator and the Trustee.
2. The Transferee is, as of the date hereof, and will
be, as of the date of the Transfer, a Permitted Transferee. The Transferee is
acquiring its Ownership Interest in the Certificate for its own account. The
Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands
that (i) a tax will be imposed on Transfers of the Certificate to Persons that
are not Permitted Transferees; (ii) such tax will be imposed on the transferor,
or, if such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands
that a tax will be imposed on a "pass-through entity" holding the Certificate if
at any time during the taxable year of the pass through entity a Person that is
not a Permitted Transferee is the record holder of an interest in such entity.
The Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass through entity an
affidavit that such record holder is a Permitted Transferee and the pass through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a
G-1
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section
5.02(c) of the Agreement and understands the legal consequences of the
acquisition of an Ownership Interest in the Certificate including, without
limitation, the restrictions on subsequent Transfers and the provisions
regarding voiding the Transfer and mandatory sales. The Transferee expressly
agrees to be bound by and to abide by the provisions of Section 5.02(c) of the
Agreement and the restrictions noted on the face of the Certificate. The
Transferee understands and agrees that any breach of any of the representations
included herein shall render the Transfer to the Transferee contemplated hereby
null and void.
6. The Transferee agrees to require a Transfer Affidavit
from any Person to whom the Transferee attempts to Transfer its Ownership
Interest in the Certificate, and in connection with any Transfer by a Person for
whom the Transferee is acting as nominee, trustee or agent, and the Transferee
will not Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Securities Administrator a certificate
substantially in the form set forth as Exhibit H to the Agreement (a "Transferor
Certificate") to the effect that such Transferee has no actual knowledge that
the Person to which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee has historically paid its debts as
they have come due, intends to pay its debts as they come due in the future, and
understands that the taxes payable with respect to the Certificate may exceed
the cash flow with respect thereto in some or all periods and intends to pay
such taxes as they become due. The Transferee does not have the intention to
impede the assessment or collection of any tax legally required to be paid with
respect to the Certificate.
8. The Transferee's taxpayer identification number is ______.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with respect
to the income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of the Transferee
or any other U.S. person.
12. Check one of the following:
[ ] The present value of the anticipated tax liabilities
associated with holding the Certificate, as applicable, does not exceed the sum
of:
G-2
(i) the present value of any consideration given to the
Transferee to acquire such Certificate;
(ii) the present value of the expected future distributions
on such Certificate; and
(iii) the present value of the anticipated tax savings
associated with holding such Certificate as the related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is
assumed to pay tax at the highest rate currently specified in Section 11(b) of
the Code (but the tax rate in Section 55(b)(1)(B) of the Code may be used in
lieu of the highest rate specified in Section 11(b) of the Code if the
Transferee has been subject to the alternative minimum tax under Section 55 of
the Code in the preceding two years and will compute its taxable income in the
current taxable year using the alternative minimum tax rate) and (ii) present
values are computed using a discount rate equal to the short-term Federal rate
prescribed by Section 1274(d) of the Code for the month of the transfer and the
compounding period used by the Transferee.
[ ] The transfer of the Certificate complies with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as
defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which
income from the Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any obligation of a
person related to the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess
of $10 million;
(iii) the Transferee will transfer the Certificate only to
another "eligible corporation," as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of Sections
1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5) of the U.S.
Treasury Regulations; and
(iv) the Transferee determined the consideration paid to
it to acquire the Certificate based on reasonable market assumptions (including,
but not limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and other factors
specific to the Transferee) that it has determined in good faith.
[ ] None of the above.
13. The Transferee is not an employee benefit plan that
is subject to Title I of ERISA or a plan that is subject to Section 4975 of the
Code or a plan subject to any federal, state or local law that is substantially
similar to Title I of ERISA or Section 4975 of the Code, and the Transferee is
not acting on behalf of or investing plan assets of such a plan.
G-3
IN WITNESS WHEREOF, the Transferee has caused this
instrument to be executed on its behalf, pursuant to authority of its Board of
Directors, by its duly authorized officer and its corporate seal to be
hereunto affixed, duly attested, this ____ day of _______, 20__.
______________________________
Print Name of Transferee
By:__________________________
Name:
Title:
[Corporate Seal]
ATTEST:
-------------------------------
[Assistant] Secretary
Personally appeared before me the above-named __________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the ___________ of the Transferee, and acknowledged that he
executed the same as his free act and deed and the free act and deed of the
Transferee.
Subscribed and sworn before me this ____ day of ________,
20__.
---------------------------
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
G-4
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Fargo Bank, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: GSAA Home Equity Trust 2006-17, Asset-Backed Certificates
Series 2006-17, Class [___]
---------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates
we certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being disposed
by us in a transaction that is exempt from the registration requirements of the
Act, (b) we have not offered or sold any Certificates to, or solicited offers to
buy any Certificates from, any person, or otherwise approached or negotiated
with any person with respect thereto, in a manner that would be deemed, or taken
any other action which would result in, a violation of Section 5 of the Act and
(c) to the extent we are disposing of a Residual Certificate, (A) we have no
knowledge the Transferee is not a Permitted Transferee and (B) after conducting
a reasonable investigation of the financial condition of the Transferee, we have
no knowledge and no reason to believe that the Transferee will not pay all taxes
with respect to the Residual Certificates as they become due and (C) we have no
reason to believe that the statements made in paragraphs 7, 10 and 11 of the
Transferee's Residual Transfer Affidavit are false.
Very truly yours,
___________________________________
Print Name of Transferor
By:
--------------------------------
Authorized Officer
H-1
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Fargo Bank, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: GSAA Home Equity Trust 2006-17, Asset-Backed Certificates,
Series 2006-17, Class [__]
----------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates
we certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Act and any such laws, (b) we have
such knowledge and experience in financial and business matters that we are
capable of evaluating the merits and risks of investments in the Certificates,
(c) we have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are purchasing a Class A-1, Class X-0,
Xxxxx X-0X, Xxxxx X-0X, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class B-1 or a Class B-2 Certificate, or we are not an employee
benefit plan that is subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or a plan or arrangement that is
subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), or a plan subject to any federal, state or local law materially similar
to the foregoing provisions of ERISA or the Code, nor are we acting on behalf of
any such plan or arrangement or using the assets of any such plan or arrangement
to effect such acquisition, or, with respect to a Class B-2, Class X Certificate
or Class P Certificate that has been the subject of an ERISA-Qualifying
Underwriting, the purchaser is an insurance company that is purchasing this
certificate with funds contained in an "insurance company general account" (as
such term is defined in Section V(e) of Prohibited Transaction Class Exemption
95-60 ("PTCE 95-60")) and the purchase and holding of such Certificates satisfy
the requirements for exemptive relief under Sections I and III of PTCE 95-60,
(e) we have not, nor has anyone acting on our behalf offered, transferred,
pledged, sold or otherwise disposed of the Certificates, any interest in the
Certificates or any other similar security to, or solicited any offer to buy or
accept a transfer, pledge or other disposition of the Certificates, any interest
in the Certificates or any other similar security from, or otherwise approached
or negotiated with respect to the Certificates, any interest in the Certificates
or any other similar security with, any person in any manner, or made any
general
I-1
solicitation by means of general advertising or in any other manner, or
taken any other action, that would constitute a distribution of the Certificates
under the Securities Act or that would render the disposition of the
Certificates a violation of Section 5 of the Securities Act or require
registration pursuant thereto, nor will act, nor has authorized or will
authorize any person to act, in such manner with respect to the Certificates and
(f) we are a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act and have completed either of the forms of
certification to that effect attached hereto as Annex 1 or Annex 2. We are aware
that the sale to us is being made in reliance on Rule 144A. We are acquiring the
Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such Certificates may be resold, pledged or transferred
only (i) to a person reasonably believed to be a qualified institutional buyer
that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or transfer
is being made in reliance on Rule 144A, or (ii) pursuant to another exemption
from registration under the Securities Act.
I-2
ANNEX 1 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President,
Chief Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer
is a "qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer
owned and/or invested on a discretionary basis $___________(1) in securities
(except for the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in accordance with
Rule 144A and (ii) the Buyer satisfies the criteria in the category marked
below.
____ Corporation, etc. The Buyer is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the business
of which is substantially confined to banking and is supervised by the State or
territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan association, building
and loan association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal authority
having supervision over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial statements, a
copy of which is attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to Section
15 of the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision by
the insurance commissioner or a similar official or agency of a State, territory
or the District of Columbia.
---------------------------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
I-3
____ State or Local Plan. The Buyer is a plan established and maintained
by a State, its political subdivisions, or any agency or instrumentality of
the State or its political subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business
investment company licensed by the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include
(i) securities of issuers that are affiliated with the Buyer, (ii) securities
that are part of an unsold allotment to or subscription by the Buyer, if the
Buyer is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Buyer, the
Buyer used the cost of such securities to the Buyer and did not include any of
the securities referred to in the preceding paragraph, except (i) where the
Buyer reports its securities holdings in its financial statements on the basis
of their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding sentence
applies, the securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by subsidiaries
of the Buyer, but only if such subsidiaries are consolidated with the Buyer in
its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Buyer's direction. However, such securities were not included if the
Buyer is a majority-owned, consolidated subsidiary of another enterprise and the
Buyer is not itself a reporting company under the Securities Exchange Act of
1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule
144A and understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A
Securities, the Buyer will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of the Certificates will
constitute a reaffirmation of this certification as of the date of such
purchase. In addition, if the Buyer is a bank or savings and loan is provided
above, the Buyer agrees that it will furnish to such parties updated annual
financial statements promptly after they become available.
I-4
-----------------------------
Print Name of Transferee
By:
--------------------------
Name:
Title:
Date:
------------------------
I-5
ANNEX 2 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to
the parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President,
Chief Financial Officer or Senior Vice President of the Buyer or, if the Buyer
is a "qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities (other
than the excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Buyer or the Buyer's Family of Investment Companies, the cost of
such securities was used, except (i) where the Buyer or the Buyer's Family of
Investment Companies reports its securities holdings in its financial statements
on the basis of their market value, and (ii) no current information with respect
to the cost of those securities has been published. If clause (ii) in the
preceding sentence applies, the securities may be valued at market.
____ The Buyer owned $___________ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent fiscal
year (such amount being calculated in accordance with Rule 144A). ____ The Buyer
is part of a Family of Investment Companies which owned in the aggregate
$__________ in securities (other than the excluded securities referred to below)
as of the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include
(i) securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii) currency,
interest rate and commodity swaps.
I-6
5. The Buyer is familiar with Rule 144A and understands
that the parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the
undersigned will notify the parties listed in the Rule 144A Transferee
Certificate to which this certification relates of any changes in the
information and conclusions herein. Until such notice is given, the Buyer's
purchase of the Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
---------------------------------
Print Name of Transferee
By:_______________________________
Name:
Title:
IF AN ADVISER:
----------------------------------
Print Name of Buyer
Date:______________________________
I-7
EXHIBIT J-1
FORM OF BACK-UP CERTIFICATION
(Master Servicer)
RE: Master Servicing and Trust Agreement, dated as of October 1,
2006 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Deutsche Bank National Trust
Company, as trustee (in such capacity, the "Trustee"), The
Bank of New York, Deutsche Bank National Trust Company and
U.S. Bank National Association, each as a custodian, and Xxxxx
Fargo Bank, National Association, as master servicer (in such
capacity, the "Master Servicer") and securities administrator
(in such capacity, the "Securities Administrator").
I, ________________________________, the _______________________ of
[NAME OF COMPANY] (the "Company"), certify to the Depositor, and its officers,
with the knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the
Company provided in accordance with Item 1123 of Regulation AB (the
"Compliance Statement"), the report on assessment of the Company's
compliance with the servicing criteria set forth in Item 1122(d) of
Regulation AB (the "Servicing Criteria"), provided in accordance with
Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Item 1122 of Regulation AB (the
"Servicing Assessment"), the registered public accounting firm's
attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), all servicing reports, officer's certificates
and other information relating to the servicing of the Mortgage Loans
by the Company during 2006 that were delivered by the Company to the
Depositor and the Securities Administrator pursuant to the Agreement
(collectively, the "Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information,
taken as a whole, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
made, in the light of the circumstances under which such statements
were made, not misleading with respect to the period of time covered by
the Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing
Information required to be provided by the Company under the Agreement
has been provided to the Depositor;
(4) I am responsible for reviewing the activities performed by
the Company as a servicer under the Agreement, and based on my
knowledge and the compliance review conducted in preparing the
Compliance Statement and except as disclosed in the Compliance
Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement; and
J-1-1
(5) The Compliance Statement required to be delivered by the
Company pursuant to the Agreement, and the Servicing Assessment and
Attestation Report required to be provided by the Company and by any
Subservicer or Subcontractor pursuant to the Agreement, have been
provided to the Master Servicer. Any material instances of
noncompliance described in such reports have been disclosed to the
Master Servicer. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
Date: _________________________
By: ________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF BACK-UP CERTIFICATION
(Securities Administrator)
RE: Master Servicing and Trust Agreement, dated as of October 1,
2006 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Deutsche Bank National Trust
Company, as trustee (in such capacity, the "Trustee"), The
Bank of New York, Deutsche Bank National Trust Company and
U.S. Bank National Association, each as a custodian and Xxxxx
Fargo Bank, National Association, as master servicer (in such
capacity, the "Master Servicer") and securities administrator
(in such capacity, the "Securities Administrator").
I, ________________________________, the _______________________ of
[NAME OF COMPANY] (the "Company"), certify to the Depositor, and its officers,
with the knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the report on assessment of the Company's
compliance with the servicing criteria set forth in Item 1122(d) of
Regulation AB (the "Servicing Criteria"), provided in accordance with
Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Item 1122 of Regulation AB (the
"Servicing Assessment"), the registered public accounting firm's
attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), all reports on Form 10-D containing statements
to certificateholders filed in respect of the period included in the
year covered by the annual report of the Trust Fund (collectively, the
"Distribution Date Statements");
(2) Assuming the accuracy and completeness of the information
delivered to the Company by the Master Servicer as provided in the
Agreement and subject to paragraph (4) below, the distribution
information determined by the Company and set forth in the Distribution
Date Statements contained in all Form 10-D's included in the year
covered by the annual report of such Trust on Form 10-K for the
calendar year 200[ ], is complete and does not contain any material
misstatement of fact as of the last day of the period covered by such
annual report;
(3) Based solely on the information delivered to the Company
by the Master Servicer as provided in the Agreement, (i) the
distribution information required under the Agreement to be contained
in the Trust Fund's Distribution Date Statements and (ii) the servicing
information required to be provided by the Master Servicer to the
Securities Administrator for inclusion in the Trust Fund's Distribution
Date Statements, to the extent received by the Securities Administrator
from the Master Servicer in accordance with the Agreement, is included
in such Distribution Date Statements;
J-2-1
(4) The Company is not certifying as to the accuracy,
completeness or correctness of the information which it received from
the Master Servicer and did not independently verify or confirm the
accuracy, completeness or correctness of the information provided by
the Master Servicer;
(5) I am responsible for reviewing the activities performed by
the Company as a person "performing a servicing function" under the
Agreement, and based on my knowledge and the compliance review
conducted in preparing the Servicing Assessment and except as disclosed
in the Servicing Assessment or the Attestation Report, the Company has
fulfilled its obligations under the Agreement; and
(6) The Servicing Assessment and Attestation Report required
to be provided by the Company pursuant to the Agreement, have been
provided to the Depositor. Any material instances of noncompliance
described in such reports have been disclosed to the Depositor. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Date: ________________________________
By: ________________________________
Name:
Title:
J-2-2
EXHIBIT K
FORM OF SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE STATEMENT
The assessment of compliance to be delivered by the [Master Servicer]
[Securities Administrator] [Custodians] shall address, at a minimum, the
criteria identified as below as "Applicable Servicing Criteria":
-----------------------------------------------------------------------------------------------------------------------------------
Securities
Servicing Criteria Master Servicer Administrator Custodians
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------- ---------------------------------------------------
General Servicing Considerations
------------------------------------------------------------------------------- ---------------------------------------------------
Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
1122(d)(1)(i) accordance with the transaction agreements.
------------------------------------------------------------------------------- ---------------------------------------------------
If any material servicing activities are outsourced to
third parties, policies and procedures are instituted
to monitor the third party's performance
1122(d)(1)(ii) and compliance with such servicing activities.
------------------------------------------------------------------------------- ---------------------------------------------------
Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans
1122(d)(1)(iii) are maintained.
------------------------------------------------------------------------------- ---------------------------------------------------
A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing
function throughout the reporting period in the amount
of coverage required by and otherwise in accordance
with the terms of the transaction X
1122(d)(1)(iv) agreements.
------------------------------------------------------------------------------- ---------------------------------------------------
Cash Collection and Administration
------------------------------------------------------------------------------- ---------------------------------------------------
Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days
following receipt, or such other number of days
1122(d)(2)(i) specified in the transaction agreements. X
------------------------------------------------------------------------------- ---------------------------------------------------
Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized
1122(d)(2)(ii) personnel. X
------------------------------------------------------------------------------- ---------------------------------------------------
K-1
-----------------------------------------------------------------------------------------------------------------------------------
Securities
Servicing Criteria Master Servicer Administrator Custodians
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------- ---------------------------------------------------
Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and
1122(d)(2)(iii) approved as specified in the transaction agreements. X
------------------------------------------------------------------------------- ---------------------------------------------------
The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in X
1122(d)(2)(iv) the transaction agreements.
------------------------------------------------------------------------------- ---------------------------------------------------
Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this
criterion, "federally insured depository institution"
with respect to a foreign financial institution means
a foreign financial institution that meets the X
requirements of Rule 13k-1(b)(1) of the Securities
1122(d)(2)(v) Exchange Act.
------------------------------------------------------------------------------- ---------------------------------------------------
Unissued checks are safeguarded so as to prevent
1122(d)(2)(vi) unauthorized access. X
------------------------------------------------------------------------------- ---------------------------------------------------
Reconciliations are prepared on a monthly basis for
all asset-backed securities related bank accounts,
including custodial accounts and related bank
clearing accounts. These reconciliations are (A)
mathematically accurate; (B) prepared within 30
calendar days after the bank statement cutoff date,
or such other number of days specified in the
transaction agreements; (C) reviewed and approved by
someone other than the person who prepared the
reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are X
resolved within 90 calendar days of their original
identification, or such other number of days
1122(d)(2)(vii) specified in the transaction agreements.
------------------------------------------------------------------------------- ---------------------------------------------------
K-2
-----------------------------------------------------------------------------------------------------------------------------------
Securities
Servicing Criteria Master Servicer Administrator Custodians
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------- ---------------------------------------------------
Investor Remittances and Reporting
------------------------------------------------------------------------------- ---------------------------------------------------
Reports to investors, including those to be filed with
the Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are
prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed
with the Commission as required by its rules and
regulations; and (D) agree with investors'
or the trustee's records as to the total unpaid X X
principal balance and number of mortgage loans
1122(d)(3)(i) serviced by the Servicer.
------------------------------------------------------------------------------- ---------------------------------------------------
Amounts due to investors are allocated and remitted
in accordance with timeframes, distribution priority
and other terms set forth in the transaction
1122(d)(3)(ii) agreements. X X
------------------------------------------------------------------------------- ---------------------------------------------------
Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or
such other number of days specified in the
1122(d)(3)(iii) transaction agreements. X
------------------------------------------------------------------------------- ---------------------------------------------------
Amounts remitted to investors per the investor
reports agree with cancelled checks, or other form of
1122(d)(3)(iv) payment, or custodial bank statements. X
------------------------------------------------------------------------------- ---------------------------------------------------
Pool Asset Administration
------------------------------------------------------------------------------- ---------------------------------------------------
Collateral or security on mortgage loans is X
maintained as required by the transaction agreements
1122(d)(4)(i) or related mortgage loan documents.
------------------------------------------------------------------------------- ---------------------------------------------------
Mortgage loan and related documents are safeguarded
1122(d)(4)(ii) as required by the transaction agreements. X
------------------------------------------------------------------------------- ---------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to
------------------------------------------------------------------------------- ---------------------------------------------------
K-3
-----------------------------------------------------------------------------------------------------------------------------------
Securities
Servicing Criteria Master Servicer Administrator Custodians
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------- ---------------------------------------------------
the asset pool are made, reviewed and approved in
accordance with any conditions or requirements in the
transaction agreements.
------------------------------------------------------------------------------- ---------------------------------------------------
Payments on mortgage loans, including any payoffs, made
in accordance with the related mortgage loan documents
are posted to the Servicer's obligor records maintained
no more than two business days after receipt, or such
other number of days specified in the transaction
agreements, and allocated to principal, interest or
other items (e.g., escrow) in
1122(d)(4)(iv) accordance with the related mortgage loan documents.
------------------------------------------------------------------------------- ---------------------------------------------------
The Servicer's records regarding the mortgage loans
agree with the Servicer's records with respect to an
1122(d)(4)(v) obligor's unpaid principal balance.
------------------------------------------------------------------------------- ---------------------------------------------------
Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan modifications or
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the transaction
1122(d)(4)(vi) agreements and related pool asset documents.
------------------------------------------------------------------------------- ---------------------------------------------------
Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with
the timeframes or other requirements established by
1122(d)(4)(vii) the transaction agreements.
------------------------------------------------------------------------------- ---------------------------------------------------
Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or
such other period specified in the transaction
agreements, and describe the entity's activities in
monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary
1122(d)(4)(viii) (e.g., illness or unemployment).
------------------------------------------------------------------------------- ---------------------------------------------------
K-4
-----------------------------------------------------------------------------------------------------------------------------------
Securities
Servicing Criteria Master Servicer Administrator Custodians
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------- ---------------------------------------------------
loans including, for example, phone calls, letters
and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness
or unemployment).
------------------------------------------------------------------------------- ---------------------------------------------------
Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based
1122(d)(4)(ix) on the related mortgage loan documents.
------------------------------------------------------------------------------- ---------------------------------------------------
Regarding any funds held in trust for an obligor (such
as escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents,
on at least an annual basis, or such other period
specified in the transaction agreements; (B) interest
on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and
state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of
the related mortgage loans, or such other number of
1122(d)(4)(x) days specified in the transaction agreements.
------------------------------------------------------------------------------- ---------------------------------------------------
Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments,
provided that such support has been received by the
servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the
1122(d)(4)(xi) transaction agreements.
------------------------------------------------------------------------------- ---------------------------------------------------
Any late payment penalties in connection with any
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the
1122(d)(4)(xii) obligor's error or omission.
------------------------------------------------------------------------------- ---------------------------------------------------
Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
1122(d)(4)(xiii) maintained by the servicer,
------------------------------------------------------------------------------- ---------------------------------------------------
K-5
-----------------------------------------------------------------------------------------------------------------------------------
Securities
Servicing Criteria Master Servicer Administrator Custodians
-----------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------- ---------------------------------------------------
or such other number of days specified in the
transaction agreements.
------------------------------------------------------------------------------- ---------------------------------------------------
Delinquencies, charge-offs and uncollectible accounts
are recognized and recorded in accordance with the
1122(d)(4)(xiv) transaction agreements.
------------------------------------------------------------------------------- ---------------------------------------------------
Any external enhancement or other support, identified
in Item 1114(a)(1) through (3) or Item 1115 of
Regulation AB, is maintained as set forth in the
1122(d)(4)(xv) transaction agreements.
------------------------------------------------------------------------------- ---------------------------------------------------
------------------------------------------------------------------------------- ---------------------------------------------------
K-6
EXHIBIT L
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
To: U.S. Bank National Assoc. Attention: Document Custody Services
0000 Xxxxxx Xxxxx 000 Xxxxxxxxx Xxxx
XX-XX-XXXX FAX: (000) 000-0000 or 000-0000
Xx. Xxxx, XX 00000
RE: Custodial Agreement between U.S. Bank National Association, a custodian,
and ___________________ as the company stated in the "agreement".
In connection with and pursuant to Section____________, of the agreement, we
request the release and acknowledge of the custodial file for the mortgage loan
described below, for the reason indicated:
FROM: Servicer:________________________________________________________,
City/State______________
SERVICER LOAN #: ___________________________,
U.S. BANK NATIONAL ASSOC. #_____________________________________,
Deal Name: ____________________,
Mortgagor's Name: _____________________________________________ Original loan
amount: ________
Property Address: _____________________________________________ Payment amount:
____________
City/State/Zip: _______________________________________________ Interest rate:
________________
REASON FOR REQUESTING DOCUMENTS (check one)
________1. Loan paid in full
________2. Loan in foreclosure
________3. Loan being substituted
________4. Loan being liquidated by company
________5. Other (please explain)
_________________________________________________________
L-1
If box 1 or 4 above is checked, and if all or part of the Custodial File was
previously released to us, then please provide a copy of the previous release
request (RR) to us as well as any additional documents in your possession
relating to the above specified mortgage loan.
If box 2 or 5 above is checked, then upon our return to you as custodian, all of
the documents for the above specified mortgage loan, please acknowledge your
receipt by signing in the space indicated below, and returning this form to us.
COMPANY NAME:______________________________________PHONE#______________________
____________________
AUTHORIZED SIGNER:
_________________________________________________________________________
NAME(TYPED):_________________________________DATE:____________________________
PHONE #:_____________________________________________________
DATE:__________________________
------------------------------------------------------------------------------
PLEASE MAIL DOCUMENTS BACK TO:
------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------
X-0
XXXXXXX X-0
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
To: Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Mortgage Custody - GS0617
RE: Master Servicing and Trust Agreement, dated as of October 1, 2006 (the
"Agreement"), among GS Mortgage Securities Corp., as depositor (the
"Depositor"), Deutsche Bank National Trust Company, as trustee (in such
capacity, the "Trustee"), The Bank of New York, Deutsche Bank National Trust
Company and U.S. Bank National Association, each as a custodian and Xxxxx Fargo
Bank, National Association, as master servicer (in such capacity, the "Master
Servicer") and securities administrator (in such capacity, the "Securities
Administrator").
In connection with and pursuant to Section____________, of the agreement, we
request the release and acknowledge of the custodial file for the mortgage loan
described below, for the reason indicated below. Further, any payments received
by the Servicer listed below in connection with this request for release have
been deposited into the Distribution Account for the benefit of the Trust.
FROM: Servicer:________________________________________________________,
City/State______________
SERVICER LOAN #: ___________________________,
DEUTSCHE BANK NATIONAL TRUST COMPANY
#________________________________,
Deal Name: ____________________,
Mortgagor's Name: ______________________________________ Original loan
amount: ________
Property Address: ______________________________________ Payment amount:
____________
City/State/Zip: ________________________________________ Interest rate:
________________
REASON FOR REQUESTING DOCUMENTS (check one)
________1. Loan paid in full
________2. Loan in foreclosure
________3. Loan being substituted
L-1-1
________4. Loan being liquidated by company
________5. Other (please explain)
_________________________________________________________
If box 1 or 4 above is checked, and if all or part of the Custodial File was
previously released to us, then please provide a copy of the previous release
request (RR) to us as well as any additional documents in your possession
relating to the above specified mortgage loan.
If box 2 or 5 above is checked, then upon our return to you as custodian, all of
the documents for the above specified mortgage loan, please acknowledge your
receipt by signing in the space indicated below, and returning this form to us.
COMPANY NAME:__________________________PHONE#__________________________________
___________________
AUTHORIZED SIGNER: ____________________________________________________________
NAME(TYPED):__________________________________DATE:____________________________
PHONE #:_____________________________________________________
DATE:__________________________
-------------------------------------------------------------------------------
PLEASE MAIL DOCUMENTS BACK TO:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
--------------------
X-0-0
XXXXXXX X-0
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
To: The Bank of New York
0000 Xxxxxxxxxx Xxxx., Xxxxx 000,
Xxxxxx, Xxxxx 00000
RE: Master Servicing and Trust Agreement, dated as of October 1, 2006 (the
"Agreement"), among GS Mortgage Securities Corp., as depositor (the
"Depositor"), Deutsche Bank National Trust Company, as trustee (in such
capacity, the "Trustee"), The Bank of New York, Deutsche Bank National Trust
Company and U.S. Bank National Association, each as a custodian and Xxxxx Fargo
Bank, National Association, as master servicer (in such capacity, the "Master
Servicer") and securities administrator (in such capacity, the "Securities
Administrator").
In connection with and pursuant to Section____________, of the agreement, we
request the release and acknowledge of the custodial file for the mortgage loan
described below, for the reason indicated below:
FROM: Servicer:________________________________________________________,
City/State______________
SERVICER LOAN #: ___________________________,
THE BANK OF NEW YORK
#_____________________________________,
Deal Name: ____________________,
Mortgagor's Name: ______________________________________ Original loan
amount: ________
Property Address: ______________________________________ Payment amount:
____________
City/State/Zip: ________________________________________ Interest rate:
________________
REASON FOR REQUESTING DOCUMENTS (check one)
________1. Loan paid in full
________2. Loan in foreclosure
________3. Loan being substituted
________4. Loan being liquidated by company
L-2-1
________5. Other (please explain)
__________________________________________
If box 1 or 4 above is checked, and if all or part of the Custodial File was
previously released to us, then please provide a copy of the previous release
request (RR) to us as well as any additional documents in your possession
relating to the above specified mortgage loan.
If box 2 or 5 above is checked, then upon our return to you as custodian, all of
the documents for the above specified mortgage loan, please acknowledge your
receipt by signing in the space indicated below, and returning this form to us.
COMPANY NAME:__________________________PHONE#__________________________________
-----------
AUTHORIZED SIGNER: ____________________________________________________________
_____________
NAME(TYPED):_______________________________________________DATE:_______________
_____________
PHONE #:_____________________________________________________
DATE:__________________________
------------------------------------------------------------------------------
PLEASE MAIL DOCUMENTS BACK TO:
------------------------------------------------------------------------------
------------------------------------------------------------------------------
L-2-2
EXHIBIT M
Form 8-K Disclosure Information
-------------------------------------------------------------------------------------------------------------------
FORM 8-K DISCLOSURE INFORMATION
---------------------------------------------------------- --------------------------------------------------------
Item on Form 8-K Responsible Party
---------------------------------------------------------- --------------------------------------------------------
Item 1.01- Entry into a Material Definitive Agreement
Disclosure is required regarding entry into or amendment
of any definitive agreement that is material to the
securitization, even if depositor is not a party. The party to this Agreement entering into such
Material Definitive Agreement.
Examples: servicing agreement, custodial agreement.
Note: disclosure not required as to definitive
agreements that are fully disclosed in the prospectus
---------------------------------------------------------- --------------------------------------------------------
Item 1.02- Termination of a Material Definitive Agreement
Disclosure is required regarding termination of any
definitive agreement that is material to the
securitization (other than expiration in accordance with The party to this Agreement requesting termination of
its terms), even if depositor is not a party. a Material Definitive Agreement.
Examples: servicing agreement, custodial agreement.
---------------------------------------------------------- --------------------------------------------------------
Item 1.03- Bankruptcy or Receivership
Disclosure is required regarding the bankruptcy or receivership, with respect to
any of the following:
---------------------------------------------------------- --------------------------------------------------------
[ ] Sponsor (Seller) Depositor/Sponsor (Seller)
---------------------------------------------------------- --------------------------------------------------------
[ ] Depositor Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Master Servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
[ ] Affiliated Servicer Servicer
---------------------------------------------------------- --------------------------------------------------------
[ ] Other Servicer servicing 20% or more of the pool Servicer
assets at the time of the report
---------------------------------------------------------- --------------------------------------------------------
[ ] Other material servicers Servicer
---------------------------------------------------------- --------------------------------------------------------
[ ] Trustee Trustee
---------------------------------------------------------- --------------------------------------------------------
[ ] Securities Administrator Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
[ ] Significant Obligor Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Credit Enhancer (10% or more) Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Derivative Counterparty Depositor
---------------------------------------------------------- --------------------------------------------------------
M-1
-------------------------------------------------------------------------------------------------------------------
FORM 8-K DISCLOSURE INFORMATION
---------------------------------------------------------- --------------------------------------------------------
Item on Form 8-K Responsible Party
---------------------------------------------------------- --------------------------------------------------------
[ ] Custodian Custodian
---------------------------------------------------------- --------------------------------------------------------
Item 2.04- Triggering Events that Accelerate or Increase Master Servicer and Securities Administrator
a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement
Includes an early amortization, performance trigger or
other event, including event of default, that would
materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure will be made of events other than waterfall
triggers which are disclosed in the monthly statements
to the certificateholders.
---------------------------------------------------------- --------------------------------------------------------
Item 3.03- Material Modification to Rights of Security Securities Administrator
Holders
Disclosure is required of any material modification to
documents defining the rights of Certificateholders,
including the Pooling and Servicing Agreement.
---------------------------------------------------------- --------------------------------------------------------
Item 5.03- Amendments of Articles of Incorporation or (i) Securities Administrator and (ii) Depositor
Bylaws; Change of Fiscal Year with respect to any information relating to the
Depositor
Disclosure is required of any amendment "to the governing
documents of the issuing entity".
---------------------------------------------------------- --------------------------------------------------------
Item 6.01- ABS Informational and Computational Material Depositor
---------------------------------------------------------- --------------------------------------------------------
Item 6.02- Change of Servicer or Securities Administrator Master Servicer/Securities Administrator/
Servicer
Requires disclosure of any removal, replacement,
substitution or addition of any master servicer, affiliated
servicer, other servicer servicing 10% or more of
pool assets at time of report, other material servicers or
trustee.
---------------------------------------------------------- --------------------------------------------------------
Reg AB disclosure about any new servicer or master Servicer/Master Servicer/Depositor
servicer is also required.
---------------------------------------------------------- --------------------------------------------------------
Reg AB disclosure about any new Trustee is also required. Depositor/Successor Trustee
---------------------------------------------------------- --------------------------------------------------------
Item 6.03- Change in Credit Enhancement or External Depositor and Securities Administrator
Support
Covers termination of any enhancement in manner other
than by its terms, the addition of an
---------------------------------------------------------- --------------------------------------------------------
M-2
-------------------------------------------------------------------------------------------------------------------
FORM 8-K DISCLOSURE INFORMATION
---------------------------------------------------------- --------------------------------------------------------
Item on Form 8-K Responsible Party
---------------------------------------------------------- --------------------------------------------------------
enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as
well as derivatives.
---------------------------------------------------------- --------------------------------------------------------
Reg AB disclosure about any new enhancement
provider is Depositor also required.
---------------------------------------------------------- --------------------------------------------------------
Item 6.04- Failure to Make a Required Distribution Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
Item 6.05- Securities Act Updating Disclosure Depositor
If any material pool characteristic differs by 5% or
more at the time of issuance of the securities from the
description in the final prospectus, provide
updated Reg AB disclosure about the actual asset pool.
---------------------------------------------------------- --------------------------------------------------------
If there are any new servicers or originators required
Depositor to be disclosed under Regulation AB as a result
of the foregoing, provide the information called
for in Items 1108 and 1110 respectively.
---------------------------------------------------------- --------------------------------------------------------
Item 7.01- Reg FD Disclosure All Parties (excluding Custodian and Trustee)
---------------------------------------------------------- --------------------------------------------------------
Item 8.01- Other Events Depositor
Any event, with respect to which information is not
otherwise called for in Form 8-K, that the registrant
deems of importance to certificateholders.
---------------------------------------------------------- --------------------------------------------------------
Item 9.01- Financial Statements and Exhibits Responsible party for reporting/disclosing the
financial statement or exhibit
---------------------------------------------------------- --------------------------------------------------------
M-3
EXHIBIT N
Additional Form 10-D Disclosure
-------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
---------------------------------------------------------- --------------------------------------------------------
Item on Form 10-D Responsible Party
---------------------------------------------------------- --------------------------------------------------------
Item 1: Distribution and Pool Performance Information
---------------------------------------------------------- --------------------------------------------------------
Information included in the [Monthly Statement] Servicer, Master Servicer and Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
Any information required by 1121 which is NOT included Depositor
on the [Monthly Statement]
---------------------------------------------------------- --------------------------------------------------------
Item 2: Legal Proceedings
Any legal proceeding pending against the following
entities or their respective property, that is material
to Certificateholders, including any proceedings
known to be contemplated by governmental authorities:
---------------------------------------------------------- --------------------------------------------------------
[ ] Issuing Entity (Trust Fund) Master Servicer, Securities Administrator and Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Sponsor (Seller) Seller (if a party to the Pooling and Servicing
Agreement) or Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Depositor Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Trustee Trustee
---------------------------------------------------------- --------------------------------------------------------
[ ] Securities Administrator Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
[ ] Master Servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
[ ] Custodian Custodian
---------------------------------------------------------- --------------------------------------------------------
[ ] 1110(b) Originator Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any 1108(a)(2) Servicer (other than the Master Servicer
Servicer or Securities Administrator)
---------------------------------------------------------- --------------------------------------------------------
[ ] Any other party contemplated by 1100(d)(1) Depositor
---------------------------------------------------------- --------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds (i) Depositor (with respect to the Closing Date) and
Information from Item 2(a) of Part II of Form 10-Q: (ii) Master Servicer
With respect to any sale of securities by the sponsor,
depositor or issuing entity, that are backed by the same
asset pool or are otherwise issued by the issuing entity,
whether or not registered, provide the sales and use of
proceeds information in Item 701 of Regulation S-K.
Pricing information can be omitted if securities were
not registered.
---------------------------------------------------------- --------------------------------------------------------
N-1
-------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
---------------------------------------------------------- --------------------------------------------------------
Item on Form 10-D Responsible Party
---------------------------------------------------------- --------------------------------------------------------
Item 4: Defaults Upon Senior Securities Securities Administrator
Information from Item 3 of Part II of Form 10-Q:
Report the occurrence of any Event of Default (after
expiration of any grace period and provision of any
required notice)
---------------------------------------------------------- --------------------------------------------------------
Item 5: Submission of Matters to a Vote of Security Securities Administrator
Holders
Information from Item 4 of Part II of Form 10-Q
---------------------------------------------------------- --------------------------------------------------------
Item 6: Significant Obligors of Pool Assets Depositor
Item 1112(b) - Significant Obligor Financial Information*
---------------------------------------------------------- --------------------------------------------------------
*This information need only be reported on the Form 10-D
for the distribution period in which updated information
is required pursuant to the Item.
---------------------------------------------------------- --------------------------------------------------------
Item 7: Significant Enhancement Provider Information
Item 1114(b)(2) - Credit Enhancement Provider Financial
Information*
---------------------------------------------------------- --------------------------------------------------------
[ ] Determining applicable disclosure threshold Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Requesting required financial information (including Depositor
any required accountants' consent to the use thereof) or
effecting incorporation by reference
---------------------------------------------------------- --------------------------------------------------------
Item 1115(b) - Derivative Counterparty Financial
Information*
---------------------------------------------------------- --------------------------------------------------------
[ ] Determining current maximum probable exposure Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Determining current significance percentage Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Requesting required financial information (including Depositor
any required accountants' consent to the use thereof) or
effecting incorporation by reference
---------------------------------------------------------- --------------------------------------------------------
*This information need only be reported on the Form 10-D
for the distribution period in which updated information
is required pursuant to the Items.
---------------------------------------------------------- --------------------------------------------------------
N-2
-------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
---------------------------------------------------------- --------------------------------------------------------
Item on Form 10-D Responsible Party
---------------------------------------------------------- --------------------------------------------------------
Item 8: Other Information Any party responsible for the applicable disclosure
items on Form 8-K
Disclose any information required to be reported on Form
8-K during the period covered by the Form 10-D but not
reported
---------------------------------------------------------- --------------------------------------------------------
Item 9: Exhibits
---------------------------------------------------------- --------------------------------------------------------
Monthly Statement to Certificateholders Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
Exhibits required by Item 601 of Regulation S-K, such as Depositor
material agreements
---------------------------------------------------------- --------------------------------------------------------
N-3
EXHIBIT O
Additional Form 10-K Disclosure
-------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
-------------------------------------------------------------------------------------------------------------------
Item on Form 10-K Responsible Party
---------------------------------------------------------- --------------------------------------------------------
Item 1B: Unresolved Staff Comments Depositor
---------------------------------------------------------- --------------------------------------------------------
Item 9B: Other Information Any responsible party for Disclosure Item on Form 8-K
Disclose any information required to be reported on
Form 8-K during the fourth quarter covered by the
Form 10-K but not reported
---------------------------------------------------------- --------------------------------------------------------
Item 15: Exhibits, Financial Statement Schedules (i) As to agreements, Securities
Administrator/Depositor and (ii) as to financial
statements, Reporting Parties (as to themselves)
(excluding Custodian or Trustee)
---------------------------------------------------------- --------------------------------------------------------
Reg AB Item 1112(b): Significant Obligors of Pool Assets
---------------------------------------------------------- --------------------------------------------------------
Significant Obligor Financial Information* Depositor
---------------------------------------------------------- --------------------------------------------------------
*This information need only be reported on the Form 10-D
for the distribution period in which updated information
is required pursuant to the Item.
---------------------------------------------------------- --------------------------------------------------------
Reg AB Item 1114(b)(2): Credit Enhancement Provider
Financial Information
---------------------------------------------------------- --------------------------------------------------------
[ ] Determining applicable disclosure threshold Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Requesting required financial information (including Depositor
any required accountants' consent to the use thereof) or
effecting incorporation by reference
---------------------------------------------------------- --------------------------------------------------------
*This information need only be reported on the Form 10-D
for the distribution period in which updated information
is required pursuant to the Items.
---------------------------------------------------------- --------------------------------------------------------
Reg AB Item 1115(b): Derivative Counterparty Financial
Information
---------------------------------------------------------- --------------------------------------------------------
[ ] Determining current maximum probable exposure Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Determining current significance percentage Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Requesting required financial information (including Depositor
any required accountants' consent to the use thereof) or
effecting incorporation by reference
---------------------------------------------------------- --------------------------------------------------------
*This information need only be reported on the Form 10-D
for the distribution period in which updated information
is required pursuant to the
---------------------------------------------------------- --------------------------------------------------------
O-1
-------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
-------------------------------------------------------------------------------------------------------------------
Item on Form 10-K Responsible Party
---------------------------------------------------------- --------------------------------------------------------
Items.
---------------------------------------------------------- --------------------------------------------------------
Reg AB Item 1117: Legal Proceedings
Any legal proceeding pending against the following
entities or their respective property, that is material
to Certificateholders, including any proceedings
known to be contemplated by governmental authorities:
---------------------------------------------------------- --------------------------------------------------------
[ ] Issuing Entity (Trust Fund) Master Servicer, Securities Administrator and Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Sponsor (Seller) Seller (if a party to the Pooling and Servicing
Agreement) or Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Depositor Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Trustee Trustee
---------------------------------------------------------- --------------------------------------------------------
[ ] Securities Administrator Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
[ ] Master Servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
[ ] Custodian Custodian
---------------------------------------------------------- --------------------------------------------------------
[ ] 1110(b) Originator Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any 1108(a)(2) Servicer (other than the Master Servicer
Servicer or Securities Administrator)
---------------------------------------------------------- --------------------------------------------------------
[ ] Any other party contemplated by 1100(d)(1) Depositor
---------------------------------------------------------- --------------------------------------------------------
Reg AB Item 1119: Affiliations and Relationships
---------------------------------------------------------- --------------------------------------------------------
Whether (a) the Sponsor (Seller), Depositor or Issuing Depositor as to (a)
Entity is an affiliate of the following parties, and (b) Sponsor/Seller as to
(a) to the extent known and material, any of the following
parties are affiliated with one another:
---------------------------------------------------------- --------------------------------------------------------
[ ] Master Servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
[ ] Securities Administrator Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
[ ] Any other 1108(a)(3) servicer Servicer
---------------------------------------------------------- --------------------------------------------------------
[ ] Any 1110 Originator Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any 1112(b) Significant Obligor Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any 1114 Credit Enhancement Provider Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any 1115 Derivate Counterparty Provider Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any other 1101(d)(1) material party Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
Whether there are any "outside the ordinary course Depositor as to (a)
business arrangements" other than would be obtained in Sponsor/Seller as to (a)
an arm's length transaction between (a) the Sponsor
(Seller), Depositor or Issuing Entity on the one hand,
and (b) any of the following parties (or their
affiliates) on the other hand, that exist currently or
within the past two years and that are material to a
Certificateholder's understanding of the Certificates:
---------------------------------------------------------- --------------------------------------------------------
O-2
-------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
-------------------------------------------------------------------------------------------------------------------
Item on Form 10-K Responsible Party
---------------------------------------------------------- --------------------------------------------------------
[ ] Master Servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
[ ] Securities Administrator Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
[ ] Trustee Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any other 1108(a)(3) servicer Servicer
---------------------------------------------------------- --------------------------------------------------------
[ ] Any 1110 Originator Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any 1112(b) Significant Obligor Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any 1114 Credit Enhancement Provider Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any 1115 Derivate Counterparty Provider Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any other 1101(d)(1) material party Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
Whether there are any specific relationships Depositor as to (a)
involving the transaction or the pool assets between (a) Sponsor/Seller as to (a)
the Sponsor (Seller), Depositor or Issuing Entity on the
one hand, and (b) any of the following parties (or their
affiliates) on the other hand, that exist currently
or within the past two years and that are material:
---------------------------------------------------------- --------------------------------------------------------
[ ] Master Servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
[ ] Securities Administrator Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
[ ] Trustee Depositor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any other 1108(a)(3) servicer Servicer
---------------------------------------------------------- --------------------------------------------------------
[ ] Any 1110 Originator Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any 1112(b) Significant Obligor Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any 1114 Credit Enhancement Provider Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any 1115 Derivate Counterparty Provider Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
[ ] Any other 1101(d)(1) material party Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
O-3
EXHIBIT P
Form of Master Loan Purchase Agreement, between various sellers
and Xxxxxxx Xxxxx Mortgage Company
[See Exhibit 99.1 to Form 8-K/A filed with the Commission on
February 14, 2006, Accession No. 0000905148-06-001326]
P-1
EXHIBIT Q
Flow Servicing Agreement, dated as of January 1, 2006,
between Avelo Mortgage, L.L.C. and Xxxxxxx Sachs Mortgage Company
[See Exhibit 99.13 to Form 8-K filed with the Commission on
March 14, 2006, Accession No. 0000905148-06-00297]
Q-1
EXHIBIT R
Servicing Agreement, dated as of July 1, 2004,
between Countrywide Home Loans Servicing LP and Xxxxxxx Xxxxx Mortgage
Company, as amended by Amendment Reg AB
[See Exhibit 99.3 to Form 8-K filed with the Commission on March 13, 2006,
Accession No. 0000905148-06-002297]
R-1
EXHIBIT S
Master Mortgage Loan Purchase Agreement, dated as of July 1, 2004, between
Countrywide Home Loans, Inc. and Xxxxxxx Sachs Mortgage Company, as amended
by Amendment Reg AB
[See Exhibit 99.3 to Form 8-K filed with the Commission on March 13, 2006,
Accession No. 0000905148-06-002297]
S-1
EXHIBIT T
Amendment Reg AB to the Master Mortgage Loan Purchase and Servicing Agreement,
dated as of January 1, 2006, among Xxxxxxx Xxxxx Mortgage Company, Countrywide
Home Loans, Inc. and Countrywide Home Loans Servicing LP
[See Exhibit 99.1 to Form 8-K filed with the Commission on
March 14, 2006, Accession No. 0000905148-06-002297]
T-1
EXHIBIT U
Amended and Restated Master Mortgage Loan Purchase Agreement, dated as of
November 1, 2005, between GreenPoint Mortgage Funding, Inc. and
Xxxxxxx Sachs Mortgage Company
[See Exhibit 99.9 to Form 8-K/A filed with the Commission on February 14, 2006,
Accession No. 0000905148-06-001326]
U-1
EXHIBIT V
Servicing Agreement, dated as of November 1, 2005, between GreenPoint
Mortgage Funding, Inc. and Xxxxxxx Xxxxx Mortgage Company
[See Exhibit 99.9 to Form 8-K/A filed with the Commission on February 14, 2006,
Accession No. 0000905148-06-001326]
V-1
EXHIBIT W
Amended and Restated Servicing Agreement, dated as of November 1, 2005,
between IndyMac Bank, F.S.B. and Xxxxxxx Sachs Mortgage Company
W-1
EXHIBIT X
Second Amended and Restated Master Mortgage Loan Purchase Agreement,
dated as of March 1, 2006, between IndyMac Bank, F.S.B.
and Xxxxxxx Xxxxx Mortgage Company
X-1
EXHIBIT Y
Amendment No. 1 to Second Amended and Restated Master Mortgage Loan
Purchase Agreement, between IndyMac Bank, F.S.B. and
Xxxxxxx Sachs Mortgage Corporation
Y-1
EXHIBIT Z
Amended and Restated Flow Seller's Warranties and Servicing Agreement, dated
as of December 1, 2005, between SunTrust Mortgage, Inc. and
Xxxxxxx Xxxxx Mortgage Company
[See Exhibit [___] to Form 8-K filed with the Commission on
[_____] [__], 2006, Accession No. 0000905148-06-[______]
Z-1
EXHIBIT AA
Amendment No. 1 to Amended and Restated Flow Seller's Warranties and
Servicing Agreement, dated as of July 1, 2006, between SunTrust Mortgage, Inc.
and Xxxxxxx Sachs Mortgage Company
[See Exhibit [___] to Form 8-K filed with the Commission on
[_____] [__], 2006, Accession No. 0000905148-06-[______]
AA-1
EXECUTION COPY
===============================================================================
AMENDED AND RESTATED SERVICING AGREEMENT
between
INDYMAC BANK, F.S.B.
(Servicer)
and
XXXXXXX XXXXX MORTGAGE COMPANY
(Owner)
Dated as of November 1, 2005
Fixed & Adjustable-Rate First Lien Residential Mortgage Loans
===============================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 2.1 Representations and Warranties of the Servicer................................................13
Section 2.2 Remedies for Breaches of Representations or Warranties........................................15
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.1 Identification of Mortgage Loans; Servicer to Act as Servicer.................................15
Section 3.2 Liquidation of Mortgage Loans.................................................................17
Section 3.3 Collection of Mortgage Loan Payments..........................................................18
Section 3.4 Establishment of Custodial Account; Deposits in Custodial Account.............................18
Section 3.5 Permitted Withdrawals from the Custodial Account..............................................19
Section 3.6 Establishment of Escrow Account; Deposits in Escrow Account; Escrow Analysis..................21
Section 3.7 Permitted Withdrawals from the Escrow Account.................................................21
Section 3.8 Payment of Taxes, Insurance and Other Charges.................................................22
Section 3.9 Transfer of Custodial Accounts and Escrow Accounts............................................22
Section 3.10 Maintenance of Hazard Insurance...............................................................22
Section 3.11 Maintenance of Primary Mortgage Insurance Policies; Collections Thereunder....................23
Section 3.12 Fidelity Bond; Errors and Omissions Insurance.................................................24
Section 3.13 Title, Management and Disposition of Real Estate Owned........................................25
Section 3.14 Application of Proceeds of Insurance to Repair or Restoration.................................27
Section 3.15 Inspections...................................................................................27
Section 3.16 Fair Credit Reporting Act.....................................................................28
Section 3.17 Compliance with the Privacy Laws..............................................................28
ARTICLE IV
PAYMENTS TO THE OWNER
Section 4.1 Distributions.................................................................................28
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Section 4.2 Reports.......................................................................................29
Section 4.3 Monthly Advances by Servicer..................................................................29
ARTICLE V
GENERAL SERVICING PROCEDURE; COVENANTS;
REPRESENTATIONS AND WARRANTIES
Section 5.1 Assumption Agreements.........................................................................30
Section 5.2 Satisfaction of Mortgages and Release of Collateral Files.....................................31
Section 5.3 Servicing Compensation........................................................................32
Section 5.4 Annual Statements as to Compliance............................................................32
Section 5.5 Annual Independent Public Accountants' Servicing Report.......................................33
Section 5.6 Owner's Right to Examine Servicer Records, etc................................................34
Section 5.7 Consents and Approvals........................................................................34
Section 5.8 Removal of Mortgage Loans from Inclusion Under this Agreement Upon a Whole Loan
Transfer or a Securitization Transaction on One or More Reconstitution Dates................34
Section 5.9 Compliance With REMIC Provisions..............................................................36
ARTICLE VI
THE SERVICER
Section 6.1 Indemnification; Third Party Claims...........................................................37
Section 6.2 Servicer Covenants; Merger or Consolidation of the Servicer...................................37
Section 6.3 Limitation on Liability of the Servicer and Others............................................38
Section 6.4 Servicer Not to Resign........................................................................38
Section 6.5 No Transfer of Servicing......................................................................39
ARTICLE VII
DEFAULT
Section 7.1 Events of Default.............................................................................39
Section 7.2 Waiver of Defaults............................................................................41
Section 7.3 Survival of Certain Obligations and Liabilities of the Defaulted Servicer.....................41
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Agreement......................................................................41
Section 8.2 Termination of the Servicer due to an Event of Default........................................41
Section 8.3 Termination Without Cause.....................................................................42
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ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Successor to the Servicer.....................................................................42
Section 9.2 Amendment.....................................................................................43
Section 9.3 Duration of Agreement.........................................................................43
Section 9.4 Governing Law.................................................................................43
Section 9.5 General Interpretive Principles...............................................................43
Section 9.6 Reproduction of Documents.....................................................................44
Section 9.7 Notices.......................................................................................44
Section 9.8 Severability of Provisions....................................................................45
Section 9.9 Disclosure of Relationship....................................................................45
Section 9.10 Exhibits and Schedules........................................................................46
Section 9.11 Counterparts; Successors and Assigns..........................................................46
Section 9.12 Effect of Headings............................................................................46
Section 9.13 Other Agreements Superseded...................................................................46
Section 9.14 Confidentiality...............................................................................46
ARTICLE X
COMPLIANCE WITH REGULATION AB
Section 10.1 Intent of the Parties; Reasonableness.........................................................47
Section 10.2 Additional Representations and Warranties of the Servicer.....................................47
Section 10.3 Information to Be Provided by the Servicer....................................................48
Section 10.4 Servicer Compliance Statement.................................................................51
Section 10.5 Report on Assessment of Compliance and Attestation............................................52
Section 10.6 Use of Subservicers and Subcontractors........................................................53
Section 10.7 Indemnification; Remedies.....................................................................54
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DESCRIPTION OF ATTACHMENTS
Exhibit A MORTGAGE LOAN SCHEDULE
Exhibit B LIST OF COLLATERAL DOCUMENTS
Exhibit C LIST OF DOCUMENTS IN CREDIT FILE
Exhibit D FORM OF ANNUAL CERTIFICATION
Exhibit E SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE.
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SERVICING AGREEMENT
THIS SERVICING AGREEMENT (this "Agreement") dated as of
November 1, 2005, is by and between INDYMAC BANK, F.S.B., in its capacity as
servicer (the "Servicer"), and XXXXXXX SACHS MORTGAGE COMPANY, and its
successors and assigns, as owner (the "Owner").
PRELIMINARY STATEMENT
WHEREAS, the Owner and IndyMac Bank, F.S.B., ("Indymac")
have entered into that certain Amended and Restated Master Mortgage Loan
Purchase Agreement dated as of November 1, 2005 between the Owner, as
purchaser and Indymac, as seller, pursuant to which the Owner will purchase
and Indymac will sell from time to time, certain fixed and adjustable-rate
first lien residential mortgage loans (the "Master Mortgage Loan Purchase
Agreement");
WHEREAS, the Servicer is in the business of providing
primary servicing of mortgage loans and owns the right to service the Mortgage
Loans (as hereinafter defined) listed on the Mortgage Loan Schedule (as
hereinafter defined);
WHEREAS, the Owner and the Servicer are parties to that
certain Servicing Agreement, dated February 1, 2004, as amended (the "Original
Servicing Agreement"), pursuant to which the Owner requested the Servicer to
service the Mortgage Loans and the Servicer agreed to service, as an
independent contractor, such mortgage loans for the Owner on the terms and
conditions set forth therein;
WHEREAS, at present time, the Owner and the Servicer desire
to amend the Original Servicing Agreement to make certain modifications as set
forth herein with respect to all Mortgage Loans serviced pursuant to this
Agreement or the Original Servicing Agreement
NOW, THEREFORE, in consideration of the mutual agreements
and covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Servicer and the
Owner agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Acceptable Servicing Procedures: The procedures, including
prudent collection and loan administration procedures, and standard of care
employed by prudent mortgage servicers. Such standard of care (i) shall not be
lower than that the Servicer customarily employs and exercises in servicing
and administering similar mortgage loans for its own account, (ii) shall
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be in accordance with the requirements of the Servicer's policies and
procedures, (iii) shall be, at a minimum, at least as prudent and customary in
the mortgage origination and servicing business and (iv) shall be in full
compliance with all federal, state and local laws, ordinances, rules and
regulations.
Advance: A Monthly Advance or Servicing Advance.
Agreement: This Amended and Restated Servicing Agreement,
including all exhibits and schedules hereto, and all amendments hereof and
supplements hereto.
Ancillary Income: All income if any, derived from any
Mortgage Loan, including but not limited to late charges, fees received with
respect to checks or bank drafts returned by the related bank for
non-sufficient funds, assumption fees, speed pay fees, reconveyance and demand
statement fees, loan modification fees and reamortization fees.
Applicable Requirements: The (i) terms of the Mortgage and
Mortgage Note related to each Mortgage Loan, (ii) the federal, state, local
and foreign laws, statutes, rules, regulations, ordinances, standards,
requirements, administrative rulings, orders and processes pertaining to
Mortgage Loans, including but not limited to those pertaining to the
processing, origination and servicing of the Mortgage Loans and the servicer's
policies and procedures, (iii) the requirements of a Primary Mortgage Insurer
(if any) with respect to the processing, origination, insuring, servicing or
filing of claims in connection with the Mortgage Loans, (iv) the requirements
of the Owner as set forth in this Agreement, and (v) the reasonable and
customary mortgage servicing practices of prudent mortgage lending
institutions which service mortgage loans of the same type as the Mortgage
Loans in the jurisdictions in which the related Mortgaged Properties are
located.
ARM Loan: A Mortgage Loan as to which the related Mortgage
Note provides that the Mortgage Interest Rate may be adjusted periodically.
Assignment of Mortgage: An assignment of mortgage, notice of
transfer, or equivalent instrument, in recordable form, sufficient under and
complying with the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect of record the sale of the Mortgage Loan to the
assignee named therein.
Business Day: Any day other than (i) a Saturday or Sunday,
or (ii) a day on which banking or savings and loan institutions in the States
of New York or California are authorized or obligated by law or executive
order to be closed.
Closing Date: The date on which the sale and purchase of a
Mortgage Loan Package is consummated between the Owner and Indymac pursuant to
the terms of the Master Mortgage Loan Purchase Agreement.
Code: The Internal Revenue Code of 1986, as amended from
time to time, or any successor statute thereto.
Collateral Documents: With respect to any Mortgage Loan, the
mortgage loan documents pertaining to such Mortgage Loan which are specified
in Exhibit B hereto and any
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additional mortgage documents pertaining to such Mortgage Loan required to be
added to the related Collateral File pursuant to the terms of this Agreement.
Collateral File: With respect to any Mortgage Loan, the file
pertaining to such Mortgage Loan that contains each of the related Collateral
Documents.
Commission: The United States Securities and Exchange
Commission.
Condemnation Proceeds: All awards or settlements in respect
of a taking of all or part of a Mortgaged Property by exercise of the power of
eminent domain or condemnation.
Consents: shall mean the unconditional written consent or
approval, as necessary, of an Investor and any applicable Insurer to the
Servicer's servicing of the Mortgage Loans hereunder.
Cooperative Corporation: The entity that holds title (fee or
an acceptable leasehold estate) to the real property and improvements
constituting the Cooperative Property and which governs the Cooperative
Property, which Cooperative Corporation must qualify as a Cooperative Housing
Corporation under Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares
and a Proprietary Lease.
Cooperative Property: The real property and improvements
owned by the Cooperative Corporation, including the allocation of individual
dwelling units to the holders of the Coop Shares of the Cooperative
Corporation.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a
Cooperative Property.
Credit File: With respect to any Mortgage Loan, a file
pertaining to such Mortgage Loan and containing copies of the mortgage loan
documents described on Exhibit C attached hereto, the credit documentation
relating to the origination of such Mortgage Loan and copies of the Collateral
Documents. Each Credit File shall be maintained by the Servicer (either on
paper or on microfilm or any other comparable medium).
Custodial Account: The account or accounts created and
maintained pursuant to Section 3.4 of this Agreement which account(s) shall be
an Eligible Account.
Custodial Agreement: Any agreement with respect to the
Mortgage Loans governing the retention of the originals of each Mortgage Note,
Mortgage, Assignment of Mortgage and other Mortgage Loan Documents, entered
into among Indymac, the Servicer and JPMorgan Chase Bank.
Custodian: With respect to any Mortgage Loan and the related
Collateral File, JPMorgan Chase Bank and any successor custodian under any
custodial agreement which may
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be entered into between the Servicer, the Owner or any subsequent Owner and the
custodian named therein regarding the warehousing and safekeeping of such
Collateral File.
Cut-off Date: With respect to a Mortgage Loan Package, the
first day of the month in which the related Cut-off Date occurs or such other
date as may be mutually agreed to by the parties.
Default: Any condition or circumstance that is, or with
notice or the lapse of time or both, would become, an Event of Default.
Depositor: The depositor, as such term is defined in
Regulation AB, with respect to any Securitization Transaction.
Determination Date: The Business Day immediately preceding
the related Remittance Date.
Due Date: With respect to any Mortgage Loan, the first day
of the month on which Monthly Payments on such Mortgage Loan are due,
exclusive of any days of grace.
Due Period: With respect to each Remittance Date, the period
beginning on the second day of the month immediately preceding the month of
such Remittance Date and ending on the first day of the month of such
Remittance Date.
Eligible Account: An account or accounts maintained with a
Qualified Depository.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 3.6.
Escrow Payments: The amounts constituting ground rents,
taxes, assessments, water rates, mortgage insurance premiums, if any, fire and
hazard insurance premiums, and other payments required to be escrowed by the
Mortgagor with the mortgagee pursuant to any Mortgage Loan.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 7.1.
Exchange Act. The Securities Exchange Act of 1934, as
amended.
FDIC: The Federal Deposit Insurance Corporation or any
successor thereto.
Xxxxxx Xxx: The Federal National Mortgage Association, or
any successor thereto.
Fidelity Bond: A fidelity bond to be obtained by the
Servicer pursuant to Section 3.12.
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Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or
any successor thereto.
Gross Margin: With respect to each ARM Loan, the fixed
percentage amount set forth in the related Mortgage Note as shown in the
Mortgage Loan Schedule, which amount is added to the Index in accordance with
the terms of the related Mortgage Note to determine on each Interest Rate
Adjustment Date the Mortgage Interest Rate for such Mortgage Loan.
Index: With respect to any ARM Loan, the index set forth in
the applicable Mortgage Note which is added to the Gross Margin to determine
the Mortgage Interest Rate on each Interest Rate Adjustment Date. In the event
the Index becomes unavailable for any reason, the Servicer shall select an
alternative index, in accordance with the terms of the Mortgage Note, and such
alternative index shall thereafter be the Index for such Mortgage Loan.
Indymac: IndyMac Bank, F.S.B., a federal savings bank and
its successors in interest.
Indymac Information: As defined in Section 5.8.
Initial Rate Cap: As to each ARM Loan, the maximum increase
or decrease in the Mortgage Interest Rate on the first Interest Rate
Adjustment Date as provided in the related Mortgage Note.
Insurance Proceeds: Proceeds of any Primary Mortgage
Insurance Policy, any title policy, any hazard insurance policy or any other
insurance policy covering a Mortgage Loan or the related Mortgaged Property,
including any amounts required to be deposited in the Custodial Account
pursuant to Section 3.10, to the extent such proceeds are not to be applied to
the restoration of the related Mortgaged Property or released to the Mortgagor
in accordance with Acceptable Servicing Procedures and Section 3.14.
Interest Rate Adjustment Date: As to any ARM Loan, the date
specified in a Mortgage Note on which the Mortgage Interest Rate for the
related Mortgage Loan is subject to adjustment.
Investor: With respect to any Mortgage Loan, a Person who
has a beneficial interest in, or is a record owner of, such Mortgage Loan or
any trustee acting on behalf of any such Person.
Late Collections: With respect to any Mortgage Loan, all
amounts (other than Monthly Advances) received during any Due Period, whether
as late payments of Monthly Payments or as Insurance Proceeds, Liquidation
Proceeds, Condemnation Proceeds or otherwise, which represent late payments or
collections of Monthly Payments due but delinquent for a previous Due Period
and not previously recovered.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of the Mortgage Loan, trustee's sale, foreclosure sale or
otherwise, or in connection with the sale of the Mortgaged Property if the
Mortgaged Property is a REO Property.
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LPMI Fee: The portion of the Mortgage Interest Rate relating
to a LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to
be retained by the Servicer to pay the premium due on a Primary Mortgage
Insurance Policy with respect to a LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which the
Servicer is responsible for paying the premium due on the related Primary
Mortgage Insurance Policy with the proceeds generated by the LPMI Fee relating
to such Mortgage Loan, as set forth on the related Mortgage Loan Schedule.
Losses: Any claims, penalties, fines, forfeitures, damages,
liabilities, losses and expenses, including reasonable attorneys' fees.
Master Servicer: As defined in Section 5.4(a).
Maturity Date: With respect to any Mortgage Loan, the
maturity date of the related Mortgage Note and Mortgage as specified therein.
MERS: Mortgage Electronic Registration, Inc. a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS
on the MERS System.
MERS (R) System: The system of recording transfers of
mortgages electronically maintained by MERS.
Monthly Advance: Commencing with each Monthly Payment due on
or after the related Cut-off Date, the portion of each Monthly Payment that is
delinquent with respect to each Mortgage Loan at the close of business on the
Determination Date required to be advanced by the Servicer pursuant to Section
4.3 on the Business Day immediately preceding the Remittance Date of the
related month.
Monthly Payment: The scheduled monthly payment of principal
and interest on a Mortgage Loan which is payable by a Mortgagor from time to
time under the related Mortgage Note.
Mortgage: The mortgage, mortgage deed, deed of trust or
other instrument creating a first lien on or first priority ownership interest
on an unsubordinated estate in fee simple in real property securing the
Mortgage Note; except that with respect to real property located in
jurisdictions in which the use of leasehold estates for residential properties
is a widely-accepted practice, the mortgage, deed of trust or other instrument
securing the Mortgage Note may secure and create a first lien upon a leasehold
estate of the Mortgagor, as the case may be, including any riders, addenda,
assumption agreements or modifications relating thereto.
Mortgage Interest Rate: As to each Mortgage Loan, the annual
rate at which interest accrues on such Mortgage Loan and, with respect to an
ARM Loan, as adjusted from time to time in accordance with the provisions of
the related Mortgage Note.
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Mortgage Loan: Any mortgage loan that is sold pursuant to
this Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes, without limitation, the
Mortgage File, the Monthly Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds (if applicable) and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan, excluding the servicing rights relating thereto.
Unless the context requires otherwise, any reference to the Mortgage Loans in
this Agreement shall refer to the Mortgage Loans constituting a Mortgage Loan
Package.
Mortgage Loan Package: Pools of Mortgage Loans sold to the
Owner pursuant the Master Mortgage Loan Purchase Agreement.
Mortgage Loan Remittance Rate: with respect to each Mortgage
Loan, the interest rate payable to the Owner on each Remittance Date which
shall equal the Mortgage Interest Rate less the Servicing Fee and any LPMI
Fees, if applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed
hereto as Exhibit A, such schedule setting forth the following information
with respect to each Mortgage Loan: (1) the Indymac's Mortgage Loan number;
(2) the address, city, state and zip code of the Mortgaged Property (or, in
the case of each Cooperative Loan, of the related Cooperative Unit); (3) a
code indicating whether the Mortgagor is self-employed; (4) a code indicating
whether the Mortgaged Property is owner-occupied, investment property or a
second home; (5) a code indicating whether the Mortgaged Property is a single
family residence, two-family residence, three-family residence, four family
residence, condominium, manufactured housing, mixed-use property, raw land and
other non-residential properties, planned unit development or cooperative
stock in a cooperative housing corporation; (6) the purpose of the Mortgage
Loan; (7) the type of Mortgage Loan (i.e., Fixed Rate or Adjustable Rate
Mortgage Loan); (8) the Mortgage Interest Rate at origination; (9) the current
Mortgage Interest Rate; (10) whether the Mortgage Loan has Monthly Payments
that are interest only for a period of time; (11) the Servicing Fee Rate; (12)
the current Monthly Payment; (13) the original term to maturity; (14) the
remaining term to maturity; (15) the principal balance of the Mortgage Loan as
of the Cut-off Date after deduction of payments of principal due on or before
the Cut-off Date whether or not collected; (16) the LTV at origination and if
the Mortgage Loan has a second lien, combined LTV at origination; (17) the
actual principal balance of the Mortgage Loan as of the Cut-off Date; (18)
social security number of the Mortgagor; (19) a code indicating whether the
Mortgage Loan has negative amortization and the maximum amount of such
negative amortization; (20) a code indicating whether the Mortgage Loan had a
second lien at origination; (21) if the Mortgage Loan has a second lien,
combined loan balance as of the Cut-off Date; (22) a code indicating whether
the Mortgaged Property is a leasehold estate; (23) the due date of the
Mortgage Loan; (24) whether the Mortgage Loan is insured by a Primary Mortgage
Insurance Policy and the name of the insurer; (25) the certificate number of
the Primary Mortgage Insurance Policy; (26) the amount of coverage of the
Primary Mortgage Insurance Policy; (27) the type of appraisal; (28) a code
indicating whether the Mortgage Loan is a MERS Mortgage Loan; (29) a code
indicating whether the Mortgage Loan is subject to a prepay penalty and the
terms of such prepayment penalty; (30) documentation type (including asset and
income type); (31) first payment date; (32) the schedule of the payment
delinquencies in the prior 12 months and (33) FICO score. With respect to any
Adjustable Rate Mortgage Loan: (a) the Gross Margin; (b) the
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Periodic Rate Cap; (c) the Lifetime Rate Cap; (d) the first Interest Rate
Adjustment Date cap and the Interest Rate Adjustment Date frequency; (e) the
minimum Mortgage Interest Rate; (f) the first Interest Rate Adjustment Date
immediately following the Cut-off Date; and (g) the Index, including the
methodology for rounding (e.g. rounded upward, if necessary, to the next
nearest ten thousandth (.0001)) and the applicable time frame for determining
the Index.
Mortgage Note: The note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage, including any riders,
addenda, assumption agreements or modifications relating thereto.
Mortgaged Property: With respect to a Mortgage Loan that is
not a Cooperative Loan, the underlying real property securing repayment of a
Mortgage Note, consisting of a single parcel of real estate considered to be
real estate under the laws of the State in which such real property is
located, which may include condominium units and planned unit developments,
improved by a residential dwelling; except that with respect to real property
located in jurisdictions in which the use of leasehold estates for residential
properties is a widely-accepted practice, a leasehold estate of the Mortgagor,
the term of which is equal to or longer than the term of the Mortgage. With
respect to a Cooperative Loan, the stock allocated to a dwelling unit in the
residential cooperative housing corporation that was pledged to secure such
Cooperative Loan and the related Cooperative Lease.
Mortgagor: The obligor on a Mortgage Note and his/her
successors in title to the Mortgage Property.
Nonrecoverable Advance: Any portion of any of a Monthly
Advance or Servicing Advance previously made or proposed to be made in respect
of a Mortgage Loan by the Servicer hereunder which, in the good faith judgment
of the Servicer, will not be ultimately recoverable from Late Collections.
Offering Materials: As defined in Section 5.8(d).
Officer's Certificate: A certificate signed by the Chairman
of the Board, the Vice Chairman of the Board, the President or a Vice
President of the Servicer, and delivered to the Owner as required by this
Agreement.
Opinion of Counsel: A written opinion of counsel, who may be
an employee of the Servicer or an affiliate thereof, reasonably acceptable to
the Owner.
Owner: Xxxxxxx Xxxxx Mortgage Company and its successors and
assigns.
Periodic Rate Cap: With respect to each ARM Loan, the
provision of each Mortgage Note which provides for an absolute maximum amount
by which the Mortgage Interest Rate therein may increase or decrease on an
Interest Rate Adjustment Date above or below the Mortgage Interest Rate
previously in effect, equal to the rate set forth on the Mortgage Loan
Schedule per adjustment.
Permitted Instruments: Any one or more of the following
obligations or securities:
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(i) direct obligations of, or obligations fully guaranteed
as to principal and interest by, the United States or any agency
or instrumentality thereof, provided such obligations are backed
by the full faith and credit of the United States;
(ii) repurchase obligations with respect to any security
described in clause (i) above, provided that the unsecured
long-term obligations of the party agreeing to repurchase such
obligations are at the time rated by Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P") in
one of its three highest rating categories;
(iii) federal funds, certificates of deposit, time deposits,
and bankers' acceptances of any bank or trust company incorporated
under the laws of the United States or any state, provided that
the long-term debt obligations of such bank or trust company (or,
in the case of the principal bank in a bank holding company
system, the long-term debt obligations of the bank holding
company) at the date of acquisition thereof have been rated by the
S&P in one of its three highest rating categories;
(iv) commercial paper of any corporation incorporated under
the laws of the United States or any state thereof which on the
date of acquisition has been rated by the S&P in its highest
short-term rating category; and
(v) any other obligation or security acceptable to Standard
& Poor's Corporation in respect of mortgage pass-through
certificates rated in one of its three highest rating categories,
as evidenced by a letter from the S&P to such effect.
Person: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political
subdivision thereof.
Prepayment Charge: With respect to any Mortgage Loan, the
prepayment premium or charge, if any, required under the terms of the related
Mortgage Note to be paid in connection with a Principal Prepayment, to the
extent permitted by applicable law.
Prepayment Period: With respect to any Remittance Date, the
Prepayment Period shall commence on and include the second day of the prior
month through and including the first day of the month in which such
Remittance Date occurs.
Prepayment Interest Shortfall Amount: With respect to any
Remittance Date and Mortgage Loan that was subject to a Principal Prepayment
in full or in part during the related Principal Prepayment Period, which
Principal Prepayment was applied to such Mortgage Loan prior to such Mortgage
Loan's Due Date in such calendar month, the amount of interest (at the
Mortgage Loan Remittance Rate) that would have accrued on the amount of such
Principal Prepayment during the period commencing on the date as of which such
Principal Prepayment was applied to such Mortgage Loan and ending on the day
immediately preceding such Due Date, inclusive.
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Primary Mortgage Insurance Policy: With respect to any
Mortgage Loan, the policy of primary mortgage guaranty insurance (including
all endorsements thereto), if any, issued by a Qualified Insurer with respect
to such Mortgage Loan, or any replacement policy.
Primary Mortgage Insurer: The named insurer under any
Primary Mortgage Insurance Policy.
Prime: As of any date of determination, the annual interest
rate, adjusted daily, published from time to time in The Wall Street Journal
(Western Edition) as the "PRIME RATE" in the "MONEY RATES" section.
Principal Prepayment: Any payment or other recovery of
principal on a Mortgage Loan (other than Condemnation Proceeds, Insurance
Proceeds, and Liquidation Proceeds) which is received in advance of its
scheduled Due Date (not including any Prepayment Charge) and is not
accompanied by an amount of interest representing scheduled interest due on
any date or dates in any month or months subsequent to the month of
prepayment.
Privacy Laws: Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999,
as amended, and all applicable regulations promulgated thereunder
Proprietary Lease: With respect to any Cooperative Unit, a
lease or occupancy agreement between a Cooperative Corporation and a holder of
related Coop Shares.
Qualified Depository: (i) A depository, the long-term
unsecured debt obligations of which are rated by a nationally recognized
statistical rating agency in one of its two highest rating categories at the
time of any deposit therein, or (ii) a depository, the deposits of which are
fully insured to the maximum extent permitted by the FDIC or (iii) the
corporate trust department of a national bank; provided that in case of (ii)
and (iii) above, they maintain a rating by a nationally recognized statistical
rating agency in the highest rating categories for short term debt
obligations.
Qualified Insurer: An insurance company duly qualified as
such under the laws of the states in which the Mortgaged Properties are
located, duly authorized and licensed in such states to transact the
applicable insurance business and to write the insurance provided, which
insurer is approved in such capacity by an Agency.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Agreements: The agreement or agreements
entered into by the Servicer and the Owner and/or certain third parties on the
Reconstitution Date or Dates with respect to any or all of the Mortgage Loans
serviced hereunder, in connection with a Whole Loan Transfer or a
Securitization Transaction. Such agreement or agreements shall prescribe the
rights and obligations of the Servicer in servicing the related Mortgage
Loans.
Reconstitution Date: The date or dates on which any or all
of the Mortgage Loans serviced under this Agreement shall be removed from this
Agreement and reconstituted as part of a Whole Loan Transfer or Securitization
Transaction pursuant to Section 5.9 hereof. On such date, the Mortgage Loans
transferred shall cease to be covered by this Agreement and the
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Servicer shall cease to service those Mortgage Loans under this Agreement in
accordance with the termination provisions set forth in Section 5.9 hereof.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
REMIC: A "real estate mortgage investment conduit" within
the meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law
relating to a REMIC, which appear at Section 860A through 860G of Subchapter M
of Chapter 1, Subtitle A of the Code, and related provisions, and regulations,
rulings or pronouncements promulgated thereunder, as the foregoing may be in
effect from time to time.
Remittance Advice Date: The 10th day of each month or, if
such 10th day is not a Business Day, the first Business Day immediately
following such day.
Remittance Date: With respect to each Mortgage Loan: the
eighteenth (18th) day of any month, beginning with the eighteenth (18th) day
of the month next following the month in which the related Cut-off Date
occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following such day.
REO Property: A Mortgaged Property acquired in foreclosure
or by deed in lieu of foreclosure, as described in Section 3.13.
Sarbanes Certifying Party: A Person who provides
certification required under the Xxxxxxxx-Xxxxx Act of 2002 in connection with
a Securitization or other securitization transaction.
Securities Act: The Securities Act of 1933, as amended.
Securitization: The transfer of the Mortgage Loans to a
trust formed as part of a publicly issued and/or privately placed, rated
securitization, including the issuance of the related Securities.
Securitization Transaction: Any transaction involving either
(1) a sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or
(2) an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
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Security Agreement: With respect to any Cooperative Loan,
the agreement between the owner of the related Coop Shares and the originator
of the related Mortgage Note that defines the terms of the security interest
in such Coop Shares and the related Proprietary Lease.
Servicer: IndyMac or any successor to the Servicer as
permitted under this Agreement.
Servicer Information: As defined in Section 10.7(a).
Servicing Advances: All customary, reasonable, and necessary
"out of pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) that are incurred by the Servicer in the performance of its
servicing obligations hereunder, including, but not limited to, the cost of
(i) the preservation, restoration, and protection of the Mortgaged Property,
(ii) any enforcement or judicial proceedings, including foreclosures, (iii)
the management and liquidation of the Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage, and (iv) compliance with
the obligations of this Agreement, including without limitation under Sections
3.8 and 3.10.
Servicing Criteria: The "servicing criteria" set forth in
Item 1122(d) of Regulation AB, as such may be amended from time to time.
Servicing Fee: With respect to each Mortgage Loan being
serviced and administered pursuant to this Agreement, the amount of the annual
fee payable to the Servicer as compensation for servicing and administering
such Mortgage Loan and for managing and disposing of REO Property in
accordance with the terms of this Agreement. For each Mortgage Loan, such fee
shall, for a period of one full month, be equal to one-twelfth of the product
of (i) the Servicing Fee Rate, multiplied by (ii) the outstanding Unpaid
Principal Balance of such Mortgage Loan as of the first day of such month, and
shall be payable in accordance with Section 5.3. With respect to any REO
Property that is being managed by the Servicer in accordance with Section 3.13
of this Agreement, such fee shall be payable through and until the disposition
of such REO Property or the transfer of the REO Property to the Owner for
management by the Owner, and the amount of such fee shall be based upon the
Unpaid Principal Balance of the related Mortgage Loan at the time of the
related foreclosure.
Servicing Fee Rate: As set forth on the Mortgage Loan
Schedule.
Servicing File: As to each Mortgage Loan, the copies of the
Collateral Documents, as well as the credit and closing packages, disclosures,
copies of the all other files, books, records and documents necessary to (a)
establish the eligibility of the Mortgage Loan for insurance by a Qualified
Insurer, if any; and/or (b) service the Mortgage Loan in accordance with
Acceptable Servicing Procedures, including the documents listed on Exhibit B
hereto, some of which maybe held by the Custodian.
Subcontractor: Any vendor, subcontractor or other Person
that is not responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgage-backed securities market) of
Mortgage Loans but performs one or more discrete functions
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identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under the direction or authority of the Servicer or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on
behalf of the Servicer or any Subservicer and is responsible for the
performance (whether directly or through Subservicers or Subcontractors) of a
substantial portion of the material servicing functions required to be
performed by the Servicer under this Agreement or any Reconstitution Agreement
that are identified in Item 1122(d) of Regulation AB.
Unpaid Principal Balance: With respect to each Mortgage Loan
as of any date of determination: (i) the unpaid principal balance of the
Mortgage Loan at the Cut-off Date after giving effect to payments of principal
due on or before such date, whether or not received, minus (ii) all amounts
previously distributed to the Owner with respect to the related Mortgage Loan
representing payments or recoveries of principal or advances in lieu thereof.
Whole Loan Transfer: Any sale or transfer of some or all of
the Mortgage Loans, other than a Securitization Transaction.
3/1 Loan: An ARM Loan where the Mortgage Interest Rate is
fixed for the first 36 months.
5/1 Loan: An ARM Loan where the Mortgage Interest Rate is
fixed for the first 60 months.
7/1 Loan: An ARM Loan where the Mortgage Interest Rate is
fixed for the first 84 months.
10/1 Loan: An ARM Loan where the Mortgage Interest Rate is
fixed for the first 120 months.
Any capitalized term used herein and not otherwise defined,
shall have the meaning assigned to such term in the Master Mortgage Loan
Purchase Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 2.1 Representations and Warranties of the Servicer
With respect to a Mortgage Loan Package, the Servicer
represents, warrants and covenants to the Owner that, as of the related
Closing Date:
(a) The Servicer is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it is organized and
is qualified and licensed to transact business in and is in good standing
under the laws of each state where each Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and the
servicing of the Mortgage Loan in accordance with the terms of this Agreement.
The execution,
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delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Servicer and the
consummation of the transactions contemplated hereby have been duly and
validly authorized. This Agreement evidences the valid, binding and
enforceable obligation of the Servicer; and all requisite action has been
taken by the Servicer to make this Agreement valid and binding upon the
Servicer in accordance with its term;
(b) The Servicer has the full power and authority to (i)
perform and enter into and consummate all transactions contemplated by this
Agreement and (ii) to service each Mortgage Loan;
(c) The consummation of the transactions contemplated by
this Agreement are in the ordinary course of business of the Servicer, which
is in the business of servicing loans;
(d) Neither the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict with or result in a breach of any
of the terms, conditions or provisions of the Servicer's [charter] or result
in a material breach of any legal restriction or any material agreement or
instrument to which the Servicer is now a party or by which it is bound, or
constitute a material default or result in an acceleration under any of the
foregoing, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Servicer or its property is subject;
(e) The Servicer is an approved servicer for Xxxxxx Xxx and
Xxxxxxx Mac in good standing. No event has occurred, including a change in
insurance coverage, which would make the Servicer unable to comply with Xxxxxx
Mae or Xxxxxxx Mac eligibility requirements;
(f) There is no action, suit, proceeding, investigation or
litigation pending or, to the Servicer's knowledge, threatened, which either
in any one instance or in the aggregate, if determined adversely to the
Servicer would materially and adversely affect the Servicer's ability to
service the Mortgage Loans hereunder in accordance with the terms hereof, or
the Servicer's ability to perform its obligations under this Agreement;
(g) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery
and performance by the Servicer, of or compliance by the Servicer with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, or if required, such consent, approval, authorization or order has
been obtained prior to the related Closing Date;
(h) The Servicer acknowledges and agrees that the Servicing
Fee represents reasonable compensation for performing such services and that
the entire Servicing Fee shall be treated by the Servicer, for accounting and
tax purposes, as compensation for the servicing and administration of the
Mortgage Loans pursuant to this Agreement;
(i) The Servicer does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
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(j) The Servicer is a member of MERS in good standing, and
will comply in all material respects with the rules and procedures of MERS in
connection with the servicing of the Mortgage Loans registered with MERS;
(k) The Servicer has serviced, and shall at all times
service, the Mortgage Loans in accordance with the Acceptable Servicing
Procedures, the Mortgage Note and applicable federal, state and local laws and
regulations, including, without limitation, usury, truth-in-lending, real
estate settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws, and the Servicer shall maintain in its
possession, available for the Owner's inspection and shall deliver to the
Owner upon demand, evidence of compliance with all such requirements. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property and, with respect
to the use and occupancy of the same, including but not limited to
certificates of occupancy and fire underwriting certificates, have been made
or obtained from the appropriate authorities;
(l) The Servicer has fully furnished (or caused to be
furnished), in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g., favorable
and unfavorable) on its borrower credit files to Equifax, Experian and Trans
Union Credit Information Company, or any their successors and assigns (three
of the credit repositories), on a monthly basis; and
(m) No statement, report or other document prepared and
furnished by the Servicer or to be prepared and furnished by the Servicer
pursuant to this Agreement in connection with the transactions contemplated
hereby contain or will contain any untrue statement of fact or omit to state a
fact necessary to make the statements contained therein not misleading.
Section 2.2 Remedies for Breaches of Representations or
Warranties.
The Servicer shall indemnify the Owner, its affiliates and
their respective directors, officers and employees and hold such Persons
harmless against any Losses and related costs, judgments, and other costs and
expenses resulting from a breach of the Servicer's representations and
warranties contained in Section 2.1 that materially and adversely affects the
interests of the Owner in or the value of one or more of the Mortgage Loans.
The obligations of the Servicer set forth in this Section 2.2 to indemnify the
Owner as provided in this Section 2.2 constitute the sole remedies of the
Owner with respect to a breach of the foregoing representations and
warranties.
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.1 Identification of Mortgage Loans; Servicer to
Act as Servicer
(a) The Servicer, as independent contractor, shall commence
servicing and administering each Mortgage Loan on behalf of the Owner from and
after the Cut-off Date in accordance with the terms and conditions of this
Agreement and Acceptable Servicing
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Procedures and the terms of the Mortgage Notes and the Mortgages. Except as
otherwise expressly provided in this Agreement, the Servicer shall have full
power and authority, acting alone, to do any and all things reasonably
consistent with the terms of this Agreement, including but not limited to the
following: (i) to execute and deliver, on behalf of the Owner, customary
consents or waivers and other instruments and documents, (ii) to consent to
transfers of any Mortgaged Property and assumptions of the Mortgage Notes and
related Mortgages (but only in the manner provided in this Agreement), (iii)
to collect any Insurance Proceeds and other Liquidation Proceeds, and (iv) to
effectuate foreclosure or other conversion of the ownership of the Mortgaged
Property securing any Mortgage Loan; provided that the Servicer shall not take
any action that is inconsistent with or prejudices the interests of the Owner
under this Agreement. The Servicer further is authorized and empowered by the
Owner, in its own name when the Servicer, believes it appropriate in its best
judgment to register any Mortgage Loan on the MERS(R) System, or cause the
removal from the registration of any Mortgage Loan on the MERS(R) System, to
execute and deliver, on behalf of the Owner, any and all instruments of
assignment and other comparable instruments with respect to such assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns. The Servicer shall at all times act in
the best interests of the Owner in performing its obligations under this
Agreement.
(b) The documents comprising the Collateral File relating to
each Mortgage Loan serviced hereunder and that are retained by the Servicer
pursuant to the terms hereof, together with all other documents with respect
to each such Mortgage Loan which are prepared by or which come into the
possession of the Servicer, shall immediately vest in the Owner and shall be
held and maintained in trust by the Servicer at the will of the Owner and in a
custodial capacity only. The documents comprising each Collateral File and all
related documents which come into the possession of the Servicer and are so
held by the Servicer shall be segregated from the other books and records of
the Servicer and shall be appropriately marked to clearly reflect the
ownership interest of the Owner in such Collateral File and related documents.
The Servicer shall release its custody of any such documents only in
accordance with written instructions from the Owner, unless such release is
required as incidental to the Servicer's servicing of the Mortgage Loans.
The Servicer shall maintain with respect to each Mortgage
Loan and shall make available for inspection by the Owner or its designee the
related Servicing File during the time the Owner retains ownership of a
Mortgage Loan and thereafter in accordance with Applicable Law. The Servicer
shall keep at its servicing office books and records in which, subject to such
reasonable regulations as it may prescribe, the Servicer shall note transfers
of Mortgage Loans. No transfer of a Mortgage Loan may be made unless such
transfer is in compliance with the terms hereof. For the purposes of this
Agreement, the Servicer shall be under no obligation to deal with any person
with respect to this Agreement or the Mortgage Loans unless the books and
records show such person as the owner of the Mortgage Loan. The Owner may,
subject to the terms of this Agreement, sell and transfer one or more of the
Mortgage Loans, provided, however, that in no event shall there be more than
four Persons at any given time having the status of "Owner" hereunder. The
Owner also shall advise the Servicer of the transfer. Upon receipt of notice
of the transfer, the Servicer shall xxxx its books and records to reflect the
ownership of the Mortgage Loans of such assignee, and shall release the
previous Owner from its obligations hereunder with respect to the Mortgage
Loans sold or transferred. If the Servicer
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receives written notification of a transfer less than five (5) Business Days
before the monthly Determination Date, the Servicer's duties to remit and
report to the new purchaser(s) as required by Section 5.9 hereof shall begin
with the first Determination Date after the Reconstitution Date.
(c) Consistent with the terms of this Agreement and subject
to the REMIC Provisions if the Mortgage Loans have been transferred to a
REMIC, the Servicer may waive, modify or vary any term of any Mortgage Loan or
consent to the postponement of strict compliance with any such term or in any
manner grant indulgence to any Mortgagor if, in the Servicer's reasonable and
prudent determination, such waiver, modification, variation, postponement or
indulgence is in the best interests of and is not materially adverse to the
Owner and will not result in the impairment of coverage under any Primary
Mortgage Insurance Policy; provided, however, that the Servicer may not,
without the prior written consent of the Owner, (i) permit any modification
with respect to any Mortgage Loan that would change the Mortgage Interest Rate
(other than by adjustments required by the terms of the related Mortgage
Note), the Lifetime Rate Cap (if applicable), the Initial Rate Cap (if
applicable), the Periodic Rate Cap (if applicable) or the Gross Margin (if
applicable), (ii) defer or forgive the payment of any principal or interest,
(iii) reduce the outstanding principal amount (except to reflect actual
payments of principal), (iv) except other than pursuant to the terms of the
Mortgage Loan, make any advances of additional principal or (v) extend the
final maturity date on such Mortgage Loan. In the event of any such
modification which permits the deferral of interest or principal payments on
any Mortgage Loan, the Servicer shall, on the Business Day immediately
preceding the Remittance Date in any month in which any such principal or
interest payment has been deferred, deposit in the Custodial Account from its
own funds, in accordance with Section 4.3, the difference between (a) such
month's principal and one month's interest at the Mortgage Loan Remittance
Rate on the Unpaid Principal Balance of such Mortgage Loan and (b) the amount
paid by the Mortgagor. Without limiting the generality of the foregoing, the
Servicer is hereby authorized and empowered to execute and deliver on behalf
of itself and the Owner in connection with any Mortgage Loan all instruments
of satisfaction, cancellation or full release upon receipt by the Servicer of
payment in full of the Unpaid Principal Balance or, with the prior written
consent of the Owner, partial release or discharge, and all other comparable
instruments with respect to the Mortgage Loans and the Mortgaged Properties.
The Servicer shall prepare and deliver to the Owner such documents requiring
execution and delivery as are necessary or appropriate to enable the Servicer
to service and administer the Mortgage Loans to the extent that the Servicer
is not permitted to execute and deliver such documents pursuant to the
preceding sentence. Upon receipt of such documents, the Owner shall execute
such documents and deliver them to the Servicer. If reasonably required by the
Servicer, the Owner shall furnish the Servicer with any powers of attorney and
other documents necessary or appropriate to enable the Servicer to carry out
its servicing and administrative duties under this Agreement.
(d) As to each ARM Loan, the Servicer shall make periodic
Mortgage Interest Rate and Monthly Payment adjustments, as applicable, in
strict compliance with (i) the terms of the Mortgage and Mortgage Note, (ii)
all applicable law, and (iii) Acceptable Servicing Procedures.
Section 3.2 Liquidation of Mortgage Loans
In the event that any payment due under any Mortgage Loan is
not paid when the same becomes due and payable, or in the event the Mortgagor
fails to perform or observe any other
17
covenant or obligation under the Mortgage Loan and such failure continues
beyond any applicable grace period, the Servicer will proceed diligently to
collect all payments due and shall take such action as it shall reasonably
deem to be in the best interest of the Owner. In the event that any payment
due under any Mortgage Loan remains delinquent for a period of ninety (90)
days or more, the Servicer shall commence foreclosure proceedings in
accordance with Acceptable Servicing Procedures and the guidelines with
respect to the timelines, fees and costs set forth by Xxxxxx Xxx or Xxxxxxx
Mac. In such connection, the Servicer shall from its own funds make all
necessary and proper Servicing Advances.
Section 3.3 Collection of Mortgage Loan Payments
Continuously from the date hereof until the principal and
interest on all Mortgage Loans being serviced hereunder are paid in full or
this Agreement is otherwise terminated, the Servicer will proceed diligently
to collect all payments due under each of such Mortgage Loans when the same
shall become due and payable. With respect to those Mortgage Loans, if any, as
to which the Servicer collects Escrow Payments, the Servicer will ascertain or
estimate, as the case may be, annual ground rents, taxes, assessments, water
rates, fire and hazard insurance premiums, mortgage insurance premiums and all
other charges that, as provided in any Mortgage, will become due and payable
so that the Escrow Payments payable by the Mortgagors will be sufficient to
pay such charges as and when they become due and payable. The Servicer shall
not be required to institute or join in litigation with respect to collection
of any payment (whether under a Mortgage, Mortgage Note, Primary Mortgage
Insurance Policy or otherwise or against any public or governmental authority
with respect to a taking or condemnation) if in its reasonable judgment it
believes that it will be unable to enforce the provision of the Mortgage or
other instrument pursuant to which payment is required.
Section 3.4 Establishment of Custodial Account; Deposits in
Custodial Account
(a) The Servicer shall segregate and hold all funds
collected and received pursuant to the Mortgage Loans separate and apart from
any of its own funds and general assets and shall establish and maintain one
or more Custodial Accounts (collectively, "Custodial Account"), which may be
interest bearing, titled," IndyMac Bank, F.S.B., in trust for Xxxxxxx Sachs
Mortgage Company as Owner, and any successor Owner." Such Custodial Account
shall be an Eligible Account.
(b) With respect to each Mortgage Loan, the Servicer shall
not later than the end of the second Business Day following receipt thereof,
deposit in the Custodial Account and retain therein the following payments and
collections received by the Servicer subsequent to the Cut-off Date:
(i) all payments on account of principal, including
Principal Prepayments and, except as otherwise expressly provided
in the related Purchase Price and Terms Letter, the Prepayment
Charges, actually collected by the Servicer on the Mortgage Loans;
(ii) all payments on account of interest actually collected
by the Servicer on the Mortgage Loans less the Servicing Fee;
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(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds, other than Insurance Proceeds
to be held in the Escrow Account and applied to the restoration
and repair of the Mortgaged Property or released to the Mortgagor
in accordance with Acceptable Servicing Procedures;
(v) all Condemnation Proceeds which are not released to the
Mortgagor in accordance with the Owner's written consent and
Acceptable Servicing Procedures and Section 3.14;
(vi) any amounts with respect to Monthly Advances required
to be deposited in the Custodial Account pursuant to Sections 4.3
and 5.3 ;
(vii) any amount required to be deposited in the Custodial
Account pursuant to Sections 3.1(c), 3.4(c), 3.10, 3.11(c),
3.13(d), (e) and (g), and 4.1(b) of this Agreement; and
(viii) an amount to be deposited from the Servicer's own
funds, without reimbursement therefor, equal to the lesser of the
Prepayment Interest Shortfall Amount, if any, for the month
preceding the month in which the applicable Remittance Date occurs
and one half of the Servicing Fee for such Remittance Date.
(c) The Servicer may cause the funds on deposit from time to
time in the Custodial Account to be invested in Permitted Instruments, which
investments shall mature not later than the Business Day immediately preceding
the applicable Remittance Date next following the date of such investment. All
such investments shall be made in the name of the Servicer or its nominee. All
income and gain realized from any such investment shall be for the benefit of
the Servicer and shall be subject to its withdrawal or order from time to
time. The Servicer shall indemnify the Owner for any and all Losses incurred
in respect of any such investment by the Servicer, and the amount of any
Losses incurred in respect of any such investment shall be deposited in the
Custodial Account by the Servicer out if its own funds immediately, without
reimbursement therefor.
(d) It is understood and agreed that payments in the nature
of Ancillary Income need not be deposited by the Servicer in the Custodial
Account.
Section 3.5 Permitted Withdrawals from the Custodial Account
(a) The Servicer may, from time to time, withdraw funds from
the Custodial Account for the following purposes:
(i) to make payments and distributions to the Owner in the
amounts and in the manner provided for in Section 4.1;
(ii) to reimburse itself for Monthly Advances made by the
Servicer from its own funds pursuant to Section 4.3, the
Servicer's right to reimburse itself pursuant to this subclause
(ii) being limited to amounts received on the related Mortgage
Loan which represent late payments of principal and/or interest
respecting which any such Monthly
19
Advance was made and such other amounts as are collected by
the Servicer from the related Mortgagor or otherwise relating to
the Mortgage Loan (or to amounts received on the Mortgage Loans as
a whole in the event that such Monthly Advance is made to pay a
shortfall in a Monthly Payment made by a Mortgagor entitled to
relief under the Servicemembers Civil Relief Act). Notwithstanding
the foregoing, the Servicer may reimburse itself for Monthly
Advances from any funds in the Custodial Account if it has
determined that such funds are Nonrecoverable Advances (as
certified by the Servicer to the Owner in an Officer's
Certificate) (or if all funds, with respect to the related
Mortgage Loan, have previously been remitted to the Owner).
Notwithstanding anything to the contrary contained herein, if the
Servicer is Indymac and the Mortgage Loan for which such Advances
were made was required to be repurchased by Indymac pursuant to
the Master Mortgage Loan Purchase Agreement, the Servicer shall
not be entitled to reimburse itself for such Advances;
(iii) to reimburse itself for unreimbursed Servicing
Advances and any unpaid Servicing Fees, Servicer's right to
reimburse itself pursuant to this subclause (iii) with respect to
any Mortgage Loan being limited to related proceeds from
Liquidation Proceeds, Condemnation Proceeds, Primary Mortgage
Insurance Proceeds and Other Insurance Proceeds; provided that the
Servicer may reimburse itself from any funds in the Custodial
Account for (a) Servicing Advances and Servicing Fees if all funds
with respect to the related Mortgage Loan have previously been
remitted to Owner and (b) Servicing Advances which it has
determined are Nonrecoverable Advances (as certified by the
Servicer to the Owner in an Officer's Certificate).
Notwithstanding anything to the contrary contained herein, if the
Servicer is Indymac and the Mortgage Loan for which such Advances
were made was required to be repurchased by Indymac pursuant to
the Master Mortgage Loan Purchase Agreement, the Servicer shall
not be entitled to reimburse itself for such Advances;
(iv) to reimburse any Master Servicer for Securitization for
any unreimbursed Monthly Advances or Servicing Advances made by
such Master Servicer, as applicable, the right to reimbursement
pursuant to this subclause (iv) with respect to any Mortgage Loan
being limited to related Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and such other amounts as may be
collected by the Servicer from the Mortgagor or otherwise relating
to the Mortgage Loan, it being understood that, in the case of
such reimbursement, such trustee's right thereto shall be prior to
the rights of the Servicer to reimbursement under (ii) and (iii),
and prior to the rights of the Owner under (i);
(v) to pay itself any Servicing Fee and other servicing
compensation not paid to the Servicer pursuant to Section 5.3;
(vi) to pay to itself any interest earned on funds deposited
in the Custodial Account;
(vii) if there shall be amounts deposited in the Custodial
Account in error, including the Servicing Fee and other servicing
compensation not required to be deposited therein, to withdraw
such amounts; and
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(viii) to clear and terminate the Custodial Account upon the
termination of this Agreement in accordance with Article 8.
Section 3.6 Establishment of Escrow Account; Deposits in
Escrow Account; Escrow Analysis
(a) The Servicer shall segregate and hold all funds
collected and received pursuant to the Mortgage Loans which constitute Escrow
Payments separate and apart from any of its own funds and general assets and
shall establish and maintain one or more Escrow Accounts (collectively,
"Escrow Account"), which may be interest bearing, titled, with respect to the
Servicer, " IndyMac Bank, F.S.B., in trust for Xxxxxxx Xxxxx Mortgage Company,
as Owner, and any successor Owner, and certain Mortgagors." The Escrow Account
shall be an Eligible Account.
(b) The Servicer shall not later than the end of the second
Business Day following receipt thereof (or sooner if required by applicable
law) deposit in the Escrow Account maintained by the Servicer and retain
therein: (i) all Escrow Payments collected on account of the Mortgage Loans
for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement, and (ii) all amounts representing Insurance
Proceeds or Condemnation Proceeds which are to be applied to the restoration
or repair of any Mortgaged Property. The Servicer shall make withdrawals from
the Escrow Account maintained by the Servicer only in accordance with Section
3.7. The Servicer shall be entitled to retain any interest earned on funds
deposited in the Escrow Account maintained by the Servicer other than interest
on escrowed funds required by law to be paid to the Mortgagor and, to the
extent required by law, the Servicer shall pay interest on escrowed funds to
the Mortgagor notwithstanding that the Escrow Account maintained by the
Servicer may not bear interest or that the interest earned on such escrowed
funds is insufficient for such purpose.
Section 3.7 Permitted Withdrawals from the Escrow Account
Withdrawals from the Escrow Account maintained by the
Servicer may be made by the Servicer only (a) to effect timely payments of
taxes, assessments, water rates, insurance premiums, fire and hazard insurance
premiums or other items constituting Escrow Payments for the related Mortgage;
(b) to reimburse the Servicer for any Servicing Advance made by the Servicer
pursuant to Sections 3.8, 3.10 and 3.11 with respect to a related Mortgage
Loan, the Servicer's right to reimburse itself pursuant to this clause (b)
being limited to the amounts as may be collected by the Servicer from the
related Mortgagor or from the related insurer; (c) to refund to any Mortgagor
any funds found to be in excess of the amounts required under the terms of the
related Mortgage Loan; (d) for transfer to the Custodial Account in accordance
with the terms of this Agreement; (e) for application to restoration or repair
of the related Mortgaged Property in accordance with the provisions of Section
3.14, (f) to pay to a Mortgagor, to the extent required by Applicable
Requirements, interest on the funds deposited in the Escrow Account; (g) to
pay to itself any interest earned on funds deposited in the Escrow Account
(and not required to be paid to the related Mortgagor), (h) to remove funds
inadvertently placed in the Escrow Account by the Servicer; or (i) to clear
and terminate the Escrow Account upon the termination of this Agreement, in
accordance with Article 8.
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Section 3.8 Payment of Taxes, Insurance and Other Charges
With respect to each Mortgage Loan, the Servicer shall
maintain accurate records reflecting the status of property taxes, assessments
and other charges which are or may become a lien upon the Mortgaged Property
and the status of Primary Mortgage Insurance Policy premiums, if any, and fire
and hazard insurance coverage and flood insurance, all as required hereunder.
If a Mortgage Loan requires Escrow Payments, the Servicer shall obtain, from
time to time, all bills for the payment of such charges (including renewal
premiums) and shall effect payment thereof prior to the applicable penalty or
termination date in a manner consistent with Acceptable Servicing Procedures,
employing for such purpose Mortgagor deposits in the Escrow Account. The
Servicer shall, with respect to each Mortgage Loan for which Escrow Payments
are maintained, conduct an escrow analysis in accordance with industry
standard procedures. If a Mortgage Loan does not require Escrow Payments, or
if there are insufficient funds in the related Escrow Account, the Servicer
shall cause all such bills to be paid on a timely basis and shall from its own
funds, if necessary, make a Servicing Advance to make timely payment of all
such bills. The Servicer shall monitor the payment status of such charges
(including renewal premiums) by the related Mortgagor, and shall effect
payment thereof in a manner consistent with Acceptable Servicing Procedures,
and in all events prior to the foreclosure of any lien against the Mortgaged
Property resulting from non-payment of such property taxes, assessments and
other charges and prior to the termination of any such insurance coverage. No
costs incurred by the Servicer in effecting the payment of taxes and
assessments on the Mortgaged Properties shall, for the purpose of calculating
remittances to the Owner, be added to the amount owing under the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so
permit.
Section 3.9 Transfer of Custodial Accounts and Escrow
Accounts
The Servicer may from time to time transfer the Custodial
Account or the Escrow Account maintained by it to a different depository
institution, provided that each such account shall be and remain an Eligible
Account.
Section 3.10 Maintenance of Hazard Insurance
(a) The Servicer shall cause to be maintained, with a
Qualified Insurer for each Mortgage Loan serviced by it, fire and hazard
insurance with extended coverage customary in the area where the Mortgaged
Property is located pursuant to insurance policies conforming to the
Underwriting Guidelines, in an amount which is at least equal to the lesser of
(a) the full insurable value of the Mortgaged Property or (b) the greater of
(i) the outstanding principal balance owing on the Mortgage Loan and (ii) an
amount such that the proceeds of such insurance shall be sufficient to avoid
the application to the Mortgagor or loss payee of any coinsurance clause under
the policy. If the Mortgaged Property is in an area then identified on a flood
hazard boundary map or flood insurance rate map issued by the Federal
Emergency Management Agency as having special flood hazards (and such flood
insurance is available), the Servicer will cause to be maintained a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration with a generally acceptable insurance carrier
acceptable to Xxxxxx Xxx or Xxxxxxx Mac. Such flood insurance shall be in an
amount representing coverage not less than the least of (i) the outstanding
principal balance of the Mortgage Loan, (ii) the full insurable value of the
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improvements securing such Mortgage Loan or (iii) the maximum amount of
insurance available under the National Flood Insurance Act of 1968 and the
Flood Disaster Protection Act of 1973, each as amended. The Servicer shall
also maintain on each REO Property with an insurer acceptable under the
Underwriting Guidelines (x) fire and hazard insurance with extended coverage
in an amount that is at least equal to the maximum insurable value of the
improvements securing the Mortgage Loan that are a part of such property, (y)
liability insurance and (z) to the extent required and available under the
National Flood Insurance Act of 1968, the Flood Disaster Protection Act of
1973, each as amended, or other applicable federal law, flood insurance in an
amount as provided above. Any costs incurred by the Servicer maintaining
insurance under this Section 3.10 shall be recoverable as Servicing Advances.
Any amounts collected by the Servicer under any such policies shall be paid
over or applied by the Servicer in accordance with Acceptable Servicing
Procedures for the restoration or repair of the Mortgaged Property subject to
the related Mortgage, for release to the Mortgagor in accordance with
Acceptable Servicing Procedures, or for application in reduction of the
Mortgage Loan. Any such amounts shall be deposited in the Custodial Account
and subject to withdrawal pursuant to Section 3.5. It is understood and agreed
that no earthquake or other additional insurance is required to be maintained
by the Servicer hereunder in connection with any Mortgage Loan or Mortgaged
Property, other than pursuant to applicable laws and regulations that are at
any time in force and require such additional insurance. All policies required
hereunder shall be endorsed with standard mortgagee clauses with loss payable
to the Servicer, and shall provide for at least 30 days prior written notice
to the Servicer of any cancellation, reduction in amount, or material change
in coverage. The Servicer shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent upon any policy
renewal; provided, however, upon any such policy renewal, the Servicer shall
not accept any such insurance policies, unless the insurers are acceptable
under the Underwriting Guidelines and are licensed to do business in the
jurisdiction in which the Mortgaged Property is located.
In the event a hazard insurance policy shall be in danger of
being terminated, or in the event the insurer shall cease to be acceptable
under the Underwriting Guidelines, the Servicer shall notify the Owner and the
related Mortgagor, and shall use its best efforts, as permitted by applicable
law, to obtain from another Qualified Insurer a replacement hazard insurance
policy substantially and materially similar in all respects to the original
policy. In no event, however, shall a Mortgage Loan be without a hazard
insurance policy at any time.
If a Mortgage is secured by a unit in a condominium project,
the Servicer shall verify that the coverage required of the owner's
association, including hazard, flood, liability, and fidelity coverage, is
being maintained in accordance with then current requirements under the
Underwriting Guidelines.
Notwithstanding anything set forth in the preceding
paragraphs, the Servicer agrees to indemnify the Owner for any Losses and
related costs, judgments, and any other costs, fees and expenses that the
Owner may sustain in any way related to the failure of the Mortgagor (or the
Servicer) to maintain hazard insurance or flood insurance with respect to the
related Mortgaged Property which complies with the requirements of this
section.
Section 3.11 Maintenance of Primary Mortgage Insurance
Policies; Collections Thereunder
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(a) The parties acknowledge that not all Mortgage Loans will
be covered by Primary Mortgage Insurance. In the event that any Mortgage Loans
are or become covered by Primary Mortgage Insurance, the provisions set forth
below shall apply.
(b) If a Mortgage Loan is covered by a Primary Mortgage
Insurance Policy as of the Cut-off Date, or if a Mortgage Loan becomes covered
by a Primary Mortgage Insurance Policy pursuant to subsection 3.11(c) below,
the Servicer shall, without any cost to the Owner, cause the premium for each
such Primary Mortgage Insurance Policy, beginning with the premium due after
the Cut-off Date in the case of any Mortgage Loan covered by a Primary
Insurance Policy prior to the Cut-off Date, to be paid on a timely basis and
shall from its own funds, if necessary, make a Servicing Advance to pay the
premium on a timely basis. The Servicer will not cancel or refuse to renew any
such Primary Mortgage Insurance Policy that is required to be kept in force
under any Mortgage and pursuant to this subsection, or pursuant to subsection
3.11(c) below, unless a replacement Primary Mortgage Insurance Policy for such
canceled or non renewed policy is obtained from and maintained with an insurer
that satisfies the standards set forth in this subsection. If the insurer
shall cease to be a Qualified Insurer, the Servicer shall obtain from another
qualified insurer a replacement Primary Mortgage Insurance Policy. The
Servicer shall not take any action or fail to take any action that would
result in non-coverage under any applicable Primary Mortgage Insurance Policy
of any loss which, but for the actions of the Servicer, would have been
covered thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Section 4.1, the
Servicer shall promptly notify the insurer under the related Primary Mortgage
Insurance Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such policy and shall take all actions which may
be required by such insurer as a condition to the continuation of coverage
under such Primary Mortgage Insurance Policy. If such Primary Mortgage
Insurance Policy is terminated as a result of such assumption or substitution
of liability, the Servicer shall obtain a replacement Primary Mortgage
Insurance Policy as provided above.
(c) As part of its activities as servicer of the Mortgage
Loans, the Servicer agrees to prepare and present, on behalf of itself and the
Owner, claims under any Primary Mortgage Insurance Policy in a timely fashion
in accordance with the terms thereof and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Primary
Mortgage Insurance Policy respecting a defaulted Mortgage Loan. Pursuant to
Section 3.4, any amounts collected by the Servicer under any Primary Mortgage
Insurance Policy shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 3.5, and remitted to the Owner on the
appropriate Remittance Date.
Section 3.12 Fidelity Bond; Errors and Omissions Insurance
The Servicer shall maintain, at its own expense, with
responsible companies that meet the requirements of Xxxxxx Mae or Xxxxxxx Mac,
a blanket fidelity bond and an errors and omissions insurance policy, with
broad coverage on all officers, employees, agents and other persons acting in
any capacity requiring such persons to handle funds, money, documents or
papers relating to the Mortgage Loans (collectively, the "Servicer
Employees"). Any such fidelity bond and errors and omissions insurance shall
be in the form of the Mortgage Banker's Blanket Bond and shall protect and
insure the Servicer against losses from forgery, theft, embezzlement, fraud,
errors, omissions, failure to maintain any insurance policies required
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pursuant to this Agreement, and dishonest or negligent acts of such Servicer
Employees, any employees of outside firms that provide data processing
services for the Servicer, and temporary contract employees or student
interns. Such fidelity bond shall also protect and insure the Servicer against
losses in connection with the release or satisfaction of a Mortgage Loan
without having obtained payment in full of the indebtedness secured thereby
and such fidelity bond and errors and omissions insurance policy shall in no
event be terminated or materially modified without 30 days prior written
notice to the Owner. No provision of this Section 3.12 requiring such fidelity
bond and errors and omissions insurance shall diminish or relieve the Servicer
from its duties and obligations as set forth in this Agreement. The terms of
any such fidelity bond and errors and omissions insurance policy shall be at
least equal to the corresponding amounts required by Xxxxxx Mae in the Xxxxxx
Xxx Selling and Servicing Guide, or by Xxxxxxx Mac in the Xxxxxxx Mac Seller's
and Servicer's Guide, as amended or restated from time to time. Upon the
request of the Owner, the Servicer shall cause to be delivered to the Owner a
certificate of insurance with respect to such fidelity bond and errors and
omissions insurance policy.
Section 3.13 Title, Management and Disposition of Real
Estate Owned
(a) The Servicer shall notify the Owner of its intention to
institute any foreclosure proceeding no fewer than ten (10) days prior to
initiating such proceeding. The Servicer shall notify the Owner of its
intention to accept a deed-in-lieu of foreclosure or a partial release of any
of the Mortgaged Property subject to the lien of the Mortgage no fewer than
ten (10) days prior to accepting such deed-in-lieu or partial release and
shall only accept such deed-in-lieu or grant such partial release if the Owner
has not objected before the end of the tenth day after delivery of such
notice. In connection with any foreclosure sale, the Servicer shall consult
with the Owner with regard to a bid price for the related Mortgaged Property.
The Servicer shall make all required Servicing Advances and shall service and
administer the Mortgage Loans in accordance with all applicable laws, rules
and regulations and shall provide to the Mortgagors any reports required to be
provided to them thereby. The Owner shall furnish to the Servicer any powers
of attorney and other documents reasonably necessary or appropriate to enable
the Servicer to carry out its servicing and administrative duties under this
Agreement.
(b) In the event that title to any Mortgaged Property is
acquired in foreclosure or by deed in lieu of foreclosure ("REO Property"),
the deed or certificate of sale shall be taken in the name of the Servicer for
the benefit of the Owner or, in the event the Owner is not authorized or
permitted to hold title to real property in the state where the REO Property
is located, or would be adversely affected under the "doing business" or tax
laws of such state by so holding title, the deed or certificate of sale shall
be taken in the name of such Person or Persons as shall be consistent with an
Opinion of Counsel obtained by the Servicer from any attorney duly licensed to
practice law in the state where the REO Property is located. The Person or
Persons holding such title other than the Owner shall acknowledge in writing
that such title is being held as nominee for the Owner.
(c) The Servicer shall manage, conserve, protect, and
operate each REO Property solely for the purpose of its prompt disposition and
sale. The Servicer shall either itself or through an agent selected by the
Servicer, manage, conserve, protect, and operate the REO Property in
accordance with Acceptable Servicing Procedures. The Servicer shall attempt to
sell the same
25
(and may temporarily rent the same for a period not greater than
one year) on such terms and conditions as the Servicer deems to be in the best
interest of the Owner.
The Servicer shall use its best efforts to dispose of the
REO Property as soon as possible and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, not later
than the end of the third taxable year after the year of its acquisition
unless (i) (A) a REMIC election has not been made with respect to the
arrangement under which the Mortgage Loans and the REO Property are held, and
(ii) the Servicer determines, and gives an appropriate notice to the Owner to
such effect, that a longer period is necessary for the orderly liquidation of
such REO Property. If a period longer than three years is permitted under the
foregoing sentence and is necessary to sell any REO Property, (i) the Servicer
shall report monthly to the Owner as to the progress being made in selling
such REO Property and (ii) if, with the written consent of the Owner, a
purchase money mortgage is taken in connection with such sale, such purchase
money mortgage shall name the Servicer as mortgagee, and such purchase money
mortgage shall not be held pursuant to this Agreement, but instead a separate
participation agreement among the Servicer and Owner shall be entered into
with respect to such purchase money mortgage.
Notwithstanding anything to the contrary contained in this
Section 3.13, in connection with a foreclosure or acceptance of a deed in lieu
of foreclosure, in the event the Servicer has reasonable cause to believe that
a Mortgaged Property is contaminated by hazardous or toxic substances or
wastes, or if the Owner otherwise requests, an environmental inspection or
review of such Mortgaged Property to be conducted by a qualified inspector
shall be arranged by the Servicer. Upon completion of the inspection, the
Servicer shall provide the Owner with a written report of such environmental
inspection. In the event that the environmental inspection report indicates
that the Mortgaged Property is contaminated by hazardous or toxic substances
or wastes, the Servicer shall not proceed with foreclosure or acceptance of a
deed in lieu of foreclosure. In the event that the environmental inspection
report is inconclusive as to the whether or not the Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, the Servicer shall
not, without the prior approval of the Owner, proceed with foreclosure or
acceptance of a deed in lieu of foreclosure. In the event the Owner or its
designee directs the Servicer not to proceed with foreclosure or acceptance of
a deed in lieu of foreclosure, the Servicer shall be reimbursed for all
customary, reasonable, and necessary "out of pocket" costs and expenses that
are incurred by the Servicer with respect to the related Mortgaged Property
from the Custodial Account, as though such costs were Servicing Advances,
pursuant to Section 3.4 hereof.
(d) The Servicer shall hold all funds collected and received
in connection with the operation of REO Property separate and apart from its
own funds or general assets, in the Custodial Account.
(e) The Servicer shall deposit, or cause to be deposited not
later than the end of the second Business Day following receipt thereof in the
Custodial Account maintained by it all revenues received with respect to the
conservation and disposition of any REO Property for distribution to the Owner
pursuant to the provisions of Section 4.1.
(f) [RESERVED]
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(g) [RESERVED]
(h) The Servicer shall withdraw the Custodial Account funds
necessary for the proper operation management and maintenance of the REO
Property, including the cost of maintaining any hazard insurance pursuant to
Section 3.10 and the fees of any managing agent of the Servicer, or the
Servicer itself. The Servicer shall make monthly distributions on each
Remittance Date to the Owner of the net cash flow from the REO Property (which
shall equal the revenues from such REO Property net of the expenses described
above and of any reserves reasonably required from time to time to be
maintained to satisfy anticipated liabilities for such expenses).
Section 3.14 Application of Proceeds of Insurance to Repair
or Restoration
The Servicer shall collect the proceeds from all policies of
insurance required to be maintained pursuant to Section 3.10 with respect to
all losses that may occur. The Servicer may remit such proceeds to the
Mortgagor toward the restoration or repair of the related property in a
manner, and shall otherwise take such actions in connection with such
restoration and repair, as shall be consistent with Acceptable Servicing
Procedures.
The Servicer need not obtain the approval of the Owner prior
to releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor
to be applied to the restoration or repair of the Mortgaged Property if such
release is in accordance with Acceptable Servicing Practices. At a minimum the
Servicer shall comply with the following conditions in connection with any
such release of Insurance Proceeds or Condemnation Proceeds:
The Servicer shall receive satisfactory independent
verification of completion of repairs and issuance of any required approvals
with respect thereto;
(1) the Servicer shall take all steps necessary to
preserve the priority of the lien of the Mortgage,
including, but not limited to requiring waivers with respect
to mechanics' and materialmen's liens;
(2) the Servicer shall verify that the Mortgage Loan
is not in default; and
(3) pending repairs or restoration, the Servicer shall
place the Insurance Proceeds or Condemnation Proceeds in the
Escrow Account.
If the Owner is named as an additional loss payee, the
Servicer is hereby empowered to endorse any loss draft issued in respect of
such a claim in the name of the Owner.
Section 3.15 Inspections
The Servicer or its authorized representative shall conduct
inspections of Mortgaged Properties at such times and in a manner consistent
with Acceptable Servicing Procedures. For any Mortgage Loan that is not
insured by a Primary Mortgage Insurance Policy, in the event such Mortgage
Loan becomes 45 days delinquent, (a) the Servicer shall inspect the related
Mortgage Property as promptly as practicable after the 45th day of
delinquency, (b) the
27
Servicer may perform an inspection at such other times and at such intervals
as the Servicer deems appropriate and (c) the Servicer shall immediately
perform an inspection upon any abandonment of the related Mortgaged Property.
For any Mortgage Loan that is insured by a Primary Mortgage Insurance Policy,
the Servicer shall inspect the related Mortgaged Property as directed by the
related Primary Insurer; provided, however, that, at a minimum, in the event
the Mortgage Loan becomes 60 days delinquent, the Servicer shall inspect the
related Mortgaged Property prior to the 90th day of delinquency. The Servicer
shall keep a written report of each such inspection and shall provide a copy
of such report to the Owner upon the request of the Owner.
Section 3.16 Fair Credit Reporting Act.
The Servicer, in its capacity as servicer for each Mortgage
Loan, agrees to fully furnish, in accordance with the Fair Credit Reporting
Act and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and Trans Union Credit Information Company (three of the credit repositories),
on a monthly basis.
Section 3.17 Compliance with the Privacy Laws
The Servicer shall comply with all provisions of the Privacy
Laws relating to the Mortgage Loans, the related borrowers and any "nonpublic
personal information" (as defined in the Privacy Laws) received by the
Servicer incidental to the performance of its obligations under this
Agreement, including, maintaining adequate information security procedures to
protect such nonpublic personal information and providing all privacy notices
required by the Privacy Laws.
ARTICLE IV
PAYMENTS TO THE OWNER
Section 4.1 Distributions
(a) On each Remittance Date the Servicer shall remit to the
Owner (a) all amounts credited to the Custodial Account as of the close of
business on the preceding Determination Date, net of charges or withdrawals
from the Custodial Account pursuant to Section 3.5, plus (b) all Monthly
Advances, if any, that the Servicer is obligated to distribute pursuant to
Section 4.3; minus (c) any amounts attributable to Principal Prepayments
received after the related Prepayment Period; minus (d) any amounts
attributable to Monthly Payments collected but due on a Due Date or Dates
subsequent to the preceding Determination Date. It is understood that by
operation of Section 3.4, the remittance on the first Remittance Date with
respect to a Mortgage Loan Package is to include principal collected after the
Cut-off Date through the preceding Determination Date plus interest, adjusted
to the Mortgage Loan Remittance Rate, collected through such Determination
Date exclusive of any portion thereof allocable to the period of time prior to
the Cut-off Date, with the adjustments specified in (b), (c) and (d) above.
Each such remittance shall be made by wire or other electronic funds transfer
of immediately available funds to the account of the
28
Owner according to the written wire instructions provided by the Owner to the
Servicer from time to time.
(b) With respect to any remittance to the Owner made by the
Servicer after the second Business Day following the Business Day on which
such remittance was due, the Servicer shall pay to the Owner interest on such
late remittance at an annual rate equal to Prime plus two percent (2.0%), but
in no event greater than the maximum amount permitted by applicable law. Such
interest shall be deposited in the Custodial Account by the Servicer on the
date such late remittance is made and shall cover the period commencing with
the date on which such remittance was due and ending with the Business Day on
which such late remittance is made, both inclusive. Such interest shall be
remitted along with such late remittance. The payment by the Servicer of any
such interest shall not be deemed an extension of time for payment or a waiver
of any Event of Default by the Servicer.
Section 4.2 Reports
(a) Not later than each Remittance Advice Date, the Servicer
shall furnish to the Owner via any electronic medium a monthly report in a
form reasonable acceptable to institutional buyers of mortgage loans, which
report shall include, without limitation, with respect to each Mortgage Loan
the following loan-level information: (i) the balance due as of the last day
of the related Due Period, (ii) all Principal Prepayments applied to the
Mortgagor's account during the related Prepayment Period, (iii) the amount of
the remittance made on such Remittance Date which is allocable to principal
and allocable to interest; (iv) the amount of servicing compensation received
by the Servicer during the prior calendar month and (v) the delinquency and
bankruptcy status of the Mortgage Loan, if applicable.
(b) With respect to any REO Property, and upon the request
of the Owner, the Servicer shall furnish to the Owner a statement describing
the Servicer's efforts during the previous month in connection with the sale
of such REO Property, including any rental of such REO Property incidental to
the sale thereof and an operating statement. The Servicer shall also provide
the Owner with such information concerning the Mortgage Loans as is necessary
for Owner to prepare its federal income tax return and as the Owner may
reasonably request from time to time. The Owner agrees to pay for all
reasonable out-of-pocket expenses incurred by the Servicer in connection with
complying with any request made by the Owner hereunder if such information is
not customarily provided by the Servicer in the ordinary course of servicing
mortgage loans similar to the Mortgage Loans.
Section 4.3 Monthly Advances by Servicer
On the Determination Date, the Servicer shall deposit in the
Custodial Account from its own funds or from amounts held for future
distribution an amount equal to all Monthly Payments to the extent not
allocable to the period prior to the Cut-off Date (with interest adjusted to
the Mortgage Loan Remittance Rate) which were due on the Mortgage Loans during
the applicable Due Period and which were delinquent as of the close of
business on the Business Day prior to the related Determination Date or which
were deferred pursuant to Section 3.1(c). Any amounts held for future
distribution and so used shall be replaced by the Servicer by deposit in the
Custodial Account on or before any future Remittance Date if funds in the
Custodial
29
Account on such Remittance Date shall be less than payments to the
Owner required to be made on such Remittance Date. The Servicer's obligation
to make such Monthly Advances as to any Mortgage Loan will continue through
the last Monthly Payment due prior to the payment in full of the Mortgage
Loan, or of the last Remittance Date prior to the Remittance Date for the
distribution of all Liquidation Proceeds and other payments or recoveries
(including Insurance Proceeds and Condemnation Proceeds) with respect to the
Mortgage Loan; provided, however, that such obligation shall cease if the
Servicer determines, in its sole reasonable opinion, that advances with
respect to such Mortgage Loan are non-recoverable by the Servicer from
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, or otherwise
with respect to a particular Mortgage Loan. In the event that the Servicer
determines that any such advances are non-recoverable, the Servicer shall
provide the Owner with a certificate signed by two officers of the Servicer
evidencing such determination.
ARTICLE V
GENERAL SERVICING PROCEDURE; COVENANTS;
REPRESENTATIONS AND WARRANTIES
Section 5.1 Assumption Agreements
(a) The Servicer will use its best efforts to enforce any
"due-on-sale" provision contained in any Mortgage or Mortgage Note and to deny
assumption by the person to whom the Mortgaged Property has been or is about
to be sold, whether by absolute conveyance or by contract of sale, and whether
or not the Mortgagor remains liable on the Mortgage and the Mortgage Note,
provided that in accordance with the terms of the Mortgage Note, the Servicer
may permit an assumption if but only if the Servicer approves the
creditworthiness of the assuming party in accordance with the Underwriting
Guidelines. When the Mortgaged Property has been conveyed by the Mortgagor,
the Servicer will, to the extent it has knowledge of such conveyance, exercise
its rights to accelerate the maturity of such Mortgage Loan under the
"due-on-sale" clause applicable thereto; provided, however, the Servicer will
not exercise such rights if prohibited by Applicable Requirements from doing
so or if the exercise of such rights would impair or threaten to impair any
recovery under the related Primary Mortgage Insurance Policy, if any. If the
Servicer reasonably believes it is unable under Applicable Requirements to
enforce such "due-on-sale" clause, the Servicer (unless otherwise required by
law and in any event will notify the Owner of such requirement) will request
the written permission of the Primary Mortgage Insurer, if required to cause
the coverage under the Primary Mortgage Insurance Policy to remain in full
force and effect, and the Owner prior to entering into an assumption and
modification agreement with the person to whom such property has been
conveyed, pursuant to which such person becomes liable under the Mortgage Note
and, to the extent permitted by Applicable Requirements, the Mortgagor remains
liable thereon. In connection with any such assumption, the related Mortgage
Interest Rate, the Unpaid Principal Balance, the Lifetime Rate Cap (if
applicable), the Gross Margin (if applicable), the Initial Rate Cap (if
applicable) or the Periodic Rate Cap (if applicable) of the related Mortgage
Note and the term of the Mortgage Loan may not be changed. If an assumption is
allowed pursuant to this Section 5.1(a), the Servicer, with the prior consent
of the Primary Mortgage Insurer, if any, is authorized to enter into a
substitution of liability agreement with the purchaser of the Mortgaged
Property pursuant to which the original Mortgagor is released from liability
and the purchaser of the
30
Mortgaged Property is substituted as Mortgagor and becomes liable under the
Mortgage Note. Any such substitution of liability agreement shall be in lieu
of an assumption agreement.
(b) The Servicer shall follow Acceptable Servicing
Procedures (including underwriting standards) with respect to any such
assumption or substitution of liability. The Servicer shall notify the Owner
that any such substitution of liability or assumption agreement has been
completed by forwarding to the Owner or its designee the original of any such
substitution of liability or assumption agreement, which document shall be
added to the related Collateral File and shall, for all purposes, be
considered a part of such Collateral File to the same extent as all other
documents and instruments constituting a part thereof.
(c) For purposes of this Section 5.1, the term "assumption"
is deemed to also include a sale of the Mortgaged Property subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section 5.2 Satisfaction of Mortgages and Release of
Collateral Files
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the Servicer (i) shall
prepare the appropriate documents and instruments required to satisfy or
release the lien of the Mortgage in accordance with applicable state law
requirements, (ii) shall promptly and within the time periods appropriate to
process the satisfaction or release within the applicable legal deadlines
notify the Owner of such event and (iii) shall request that the Owner deliver
the required portion of the Collateral File to the Servicer. The Owner shall,
within five (5) Business Days following its receipt of any such certification
and request, send to the Servicer the requested portion of the Collateral
File. Upon receipt of such package, the Servicer shall prepare and execute the
documents and instruments necessary to satisfy or release the lien of the
Mortgage and shall process such satisfaction or release in accordance with
applicable state law requirements. In addition, if, with respect to any
Mortgage Loan that has been paid in full, the Owner has recorded or caused to
be recorded in the appropriate public recording office of the jurisdiction in
which the related Mortgaged Property is located the related Assignment of
Mortgage which designates the Owner as the holder of record of the Mortgage,
the Servicer shall prepare and deliver to the Owner, together with a request
for execution, the documents and instruments necessary to satisfy or release
the lien of the Mortgage. The Owner shall, within five (5) Business Days
following its receipt of any such request, send to the Servicer the
fully-executed documents that were prepared and requested by the Servicer.
Upon receipt of such package, the Servicer shall process such satisfaction or
release in accordance with applicable state law requirements. In the event
that applicable state law requires that a satisfaction or release be recorded
within a shorter time period than the processes set forth above permits, the
Servicer shall advise the Owner accordingly and shall use reasonable efforts
to ensure that the lien of the Mortgage is released or satisfied in accordance
with applicable state law requirements. The Owner shall assist therewith by
returning to the Servicer the required portion of the Collateral File (and, if
applicable, the executed satisfaction and release documents and instruments)
within the time periods specified by the Servicer. The Servicer shall not be
liable for and the Owner shall indemnify the Servicer against any third party
liability for failure to release the lien of a Mortgage as required under
applicable law to the extent that such failure was caused by the Owner's
breach of its obligations under this Section 5.2.
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(b) If the Servicer satisfies or releases a Mortgage without
first having obtained payment in full of the indebtedness secured by the
Mortgage or should the Servicer otherwise prejudice any rights the Owner may
have under the mortgage instruments, upon written demand of the Owner, the
Servicer shall remit to the Owner the then unpaid principal balance of the
related Mortgage Loan. The Servicer shall maintain the fidelity bond and
errors and omissions insurance policy as provided for in Section 3.12 insuring
the Servicer against any loss it may sustain with respect to any Mortgage Loan
not satisfied in accordance with the procedures set forth herein.
Section 5.3 Servicing Compensation
As compensation for its services hereunder, the Servicer
shall be entitled to pay itself the Servicing Fee with respect to each
Mortgage Loan from the gross amount of interest payments on such Mortgage Loan
which are actually received by the Servicer with respect thereto. Additional
servicing compensation in the form of all Ancillary Income which are actually
received by the Servicer may be retained by the Servicer to the extent not
required to be deposited into the Custodial Account pursuant to the terms of
this Agreement. The Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder and shall not be
entitled to reimbursement therefor except as specifically provided for in this
Agreement.
Section 5.4 Annual Statements as to Compliance
(a) The Servicer shall deliver to the Owner, to any master
servicer and/or trustee which is master servicing or acting as trustee with
respect to any of the Mortgage Loans pursuant to a Securitization (each, a
"Master Servicer") and to the Sarbanes Certifying Party not later than the
earlier of (a) March 15 of each calendar year (other than the calendar year
during which the related Closing Date occurs) or (b) with respect to any
calendar year during which the annual report of the entity which is the
Depositor (or other party responsible for filing Form 10-K with the Commission
(as defined below)) of the Mortgage Loans pursuant to a Securitization or
other securitization transaction on Form 10-K is required to be filed in
accordance with the Exchange Act, and the rules and regulations of the
Commission, 15 calendar days before the date on which the Depositor's annual
report on Form 10-K is required to be filed in accordance with the Exchange
Act and the rules and regulations of the Commission (or, in each case, if such
day is not a Business Day, the immediately preceding Business Day), an
Officer's Certificate stating, as to each signatory thereof, that (i) a review
of the activities of the Servicer during the preceding fiscal year and of
performance under this Agreement has been made under such officer's
supervision (ii) based on such review, the Servicer has fulfilled all of its
obligations under this Agreement throughout such fiscal year, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof and the
actions being taken by the Servicer to cure such default, and (iii) all
reports and information provided to the Owner by the Servicer, pursuant to the
Servicer's reporting requirements under the Agreement, are accurate and
complete in all material respects. Copies of such statement may be provided by
the Owner to any Person identified as a prospective purchaser of the Mortgage
Loans.
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(b) With respect to any Mortgage Loans that are subject to a
Securitization, not later than the earlier of (a) March 15 of each calendar
year (other than the calendar year during which the Closing Date occurs) or
(b) with respect to any calendar year during which the Depositor's annual
report on Form 10-K is required to be filed in accordance with the Exchange
Act and the rules and regulations of the Commission, 15 calendar days before
the date on which the Depositor's annual report on Form 10-K is required to be
filed in accordance with the Exchange Act and the rules and regulations of the
Commission (or, in each case, if such day is not a Business Day, the
immediately preceding Business Day), an officer of the Servicer shall execute
and deliver an Officer's Certificate in the form attached hereto as Exhibit D
to the Sarbanes Certifying Party for the benefit of the Master Servicer, the
Sarbanes Certifying Party and their respective officers, directors and
affiliates.
(c) The Servicer shall indemnify and hold harmless the
Master Servicer and the Sarbanes Certifying Party (any such person, an
"Indemnified Party") from and against any Losses and related costs, judgments
and other costs and expenses arising out of or based upon a breach by the
Servicer of its obligations under this Section 5.4 or Section 5.5, or any
material misstatement or omission, negligence, bad faith or willful misconduct
of the Servicer in connection therewith. If the indemnification provided for
herein is unavailable or insufficient to hold harmless any Indemnified Party,
then the Servicer agrees that it shall contribute to the amount paid or
payable by the Indemnified Party as a result of the Losses of the Indemnified
Party in such proportion as is appropriate to reflect the relative fault of
the Indemnified Party on the one hand and the Servicer on the other in
connection with a breach of the Servicer's obligations under this Section 5.4
or Section 5.5, or the Servicer's material misstatement or omission,
negligence, bad faith or willful misconduct in connection therewith.
(d) It is acknowledged and agreed that each Master Servicer
and the Sarbanes Certifying Party shall be an express third party beneficiary
of the provisions of this Section 5.4 and shall be entitled independently to
enforce the provisions of this Section 5.4 with respect to any obligations
owed to such entity as if it were a direct party to this Agreement.
Section 5.5 Annual Independent Public Accountants' Servicing
Report
Not later than the earlier of (a) March 15 of each calendar
year (other than the calendar year during which the related Closing Date
occurs) or (b) with respect to any calendar year during which the Depositor's
annual report on Form 10-K is required to be filed in accordance with the
Exchange Act and the rules and regulations of the Commission, 15 calendar days
before the date on which the Depositor's annual report on Form 10-K is
required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission (or, in each case, if such day is not a Business
Day, the immediately preceding Business Day), the Servicer at its expense
shall cause a firm of independent public accountants which is a member of the
American Institute of Certified Public Accountants to furnish a statement to
the Owner, any Master Servicer and the Sarbanes Certifying Party to the effect
that such firm has examined certain documents and records and performed
certain other procedures relating to the servicing of the Mortgage Loans
during the immediately preceding calendar year of the Servicer and that such
firm is of the opinion that, on the basis of such examination conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers, such servicing
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has been conducted in compliance therewith, except for such exceptions as
shall be set forth in such statement.
Section 5.6 Owner's Right to Examine Servicer Records, etc.
The Owner shall have the right, at the Owner's expense,
except for immaterial items in the ordinary course of business, to examine and
audit the Servicer's books of account, records, reports, and other papers
relating to (i) the performance by the Servicer of its obligations and duties
under this Agreement, or (ii) the Mortgage Loans, to make copies and extracts
therefrom, and to discuss the affairs, finances, and accounts of such Servicer
relating to such performance with its officers and employees, all at such
reasonable times and places and as often as may be reasonably requested.
Section 5.7 Consents and Approvals
The Owner shall timely obtain, at its sole cost and expense,
the consents and approvals required by law or pursuant to contract to
consummate the transactions contemplated hereby. All such consents will be
obtained without any cost or expense to the Servicer and will be obtained
without any adverse modification in the terms of any of the agreements
relating to the Mortgage Loans or the imposition of any burdensome provisions
or conditions on the Servicer.
Furthermore, the Servicer shall provide to the Owner, and
for any Owner insured by FDIC or NAIC, the supervisory agents and examiners of
FDIC and OTS or NAIC, access to any documentation regarding the Mortgage Loans
which may be required by applicable regulations. Such access shall be afforded
without charge, but only upon reasonable request, during normal business hours
and at the offices of the Servicer.
In addition, the Servicer shall furnish upon request by the
Owner, during the term of this Agreement, such periodic, special or other
reports or information, whether or not provided for herein, as shall be
necessary, reasonable and appropriate with respect to the purposes of this
Agreement and applicable regulations. All such reports or information shall be
provided by and in accordance with all reasonable instructions and directions
the Owner may require, provided that the Owner shall pay the Servicer's
reasonable fees and expenses in connection with providing such reports or
information. The Servicer agrees to execute and deliver all such instruments
and take all such action as the Owner, from time to time, may reasonably
request in order to effectuate the purposes and to carry out the terms of this
Agreement.
Section 5.8 Removal of Mortgage Loans from Inclusion Under
this Agreement Upon a Whole Loan Transfer or a Securitization Transaction on
One or More Reconstitution Dates
(a) The Servicer and the Owner agree that with respect to
some or all of the Mortgage Loans, the Owner may effect one or more Whole Loan
Transfers and/or one or more Securitization Transactions. In connection with a
Whole Loan Transfer, the related Reconstitution Agreement shall provide that
no more than four (4) Persons shall have the status of "Owner" thereunder.
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(b) With respect to each Whole Loan Transfer or
Securitization Transaction, as the case may be, entered into by Owner,
Servicer agrees:
(i) negotiate in good faith and execute a servicer agreement
reasonably required to effectuate the Whole Loan Transfer or the
Securitization Transaction, as the case may be, provided such
agreement creates no greater obligation or cost on the part of the
Servicer than otherwise set forth in this Agreement, and provided
further that the Servicer shall be entitled to a servicing fee
under that agreement at a rate per annum no less than the
Servicing Fee Rate;
(ii) to cooperate fully with the Owner and any prospective
the Owner with respect to all reasonable requests that are
necessary to effect a Securitization Transaction or Whole Loan
Transfer;
(iii) provide as applicable:
(A) information pertaining to the Servicer of the type
and scope customarily included in offering documents for
residential mortgage-backed securities transactions
involving multiple loan originators; and
(B) such opinions of counsel, letters from auditors,
and certificates of public officials or officers of the
Servicer as are reasonably believed necessary by the
trustee, any rating agency or the Owner, as the case may be,
in connection with such Securitization Transaction. The
Owner shall pay all third party costs associated with the
preparation of the information described in clause (ii)(A)
above and the delivery of any opinions, letters or
certificates described in this clause (ii)(B). The Servicer
shall not be required to execute any servicer agreement
unless a draft of the agreement is provided to the Servicer
at least 10 days before the Reconstitution Date, or such
longer period as may reasonably be required for the Servicer
and its counsel to review and comment on the agreement;
(c) In connection with any Securitization Transaction, the
Servicer, upon request, will bring down the representations and warranties
made in Section 2.1 in to a date no later than the related Reconstitution
Date;
(d) In connection with any Securitization Transaction, the
Servicer shall indemnify, defend and hold harmless the Owner, the Depositor,
and their respective affiliates, directors, officers and employees from and
against any and all Losses to which any such Person may be subject to as a
result of any untrue statement of any material fact contained in any
information (such information, the "Indymac Information") prepared and
furnished to the Owner or the Depositor, by the Servicer for inclusion in any
related offering document or prospectus (collectively, "Offering Materials"),
or arise out of, or are based upon, any omission in the Indymac Information
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and will reimburse to all such parties,
as applicable, for damages or expenses reasonably incurred by it, as they are
incurred; provided, however, that the Servicer shall be liable only insofar as
such untrue statement or omission
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relates solely to the Indymac Information in the Offering Materials furnished
to any such party by the Servicer specifically for inclusion in the Prospectus
Supplement; and
(e) All Mortgage Loans not sold or transferred pursuant to
Securitization Transactions shall remain subject to this Agreement and shall
continue to be serviced in accordance with the terms of this Agreement and
with respect thereto this Agreement shall remain in full force and effect.
Section 5.9 Compliance With REMIC Provisions
If a REMIC election has been made with respect to the
arrangement under which the Mortgage Loans and REO Property are held or
transferred, the Servicer shall not take any action, cause the REMIC to take
any action or fail to take (or fail to cause to be taken) any action that,
under the REMIC Provisions, if taken or not taken, as the case may be, could
(i) endanger the status of the REMIC as a REMIC or (ii) result in the
imposition of a tax upon the REMIC (including but not limited to the tax on
"prohibited transactions" as defined in Section 860(a)(2) of the Code and the
tax on "contributions" to a REMIC set forth in Section 860(d) of the Code)
unless the Servicer has received an Opinion of Counsel (at the expense of the
party seeking to take such action) to the effect that the contemplated action
will not endanger such REMIC status or result in the imposition of any such
tax.
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ARTICLE VI
THE SERVICER
Section 6.1 Indemnification; Third Party Claims
Subject to Section 6.3, the Servicer agrees to indemnify and
hold harmless the Owner against any and all Losses that the Owner may sustain
in any way related to the failure of such Servicer to service the Mortgage
Loans in compliance with the terms of this Agreement; provided, however, the
Servicer shall not be liable hereunder (a) to the extent such Losses directly
result from the Custodian's negligent action, negligent failure to act, bad
faith, willful misconduct or breach under the Custodial Agreement, dated as of
February 1, 2004, among the Owner, Indymac and the Custodian,(b) with respect
to any action or inaction in accordance with the direction or consent of the
Owner or (c) resulting from the Owner's failure to respond to a request by the
Servicer for direction or consent in accordance with Section 3.1(c) hereof.
The Servicer shall immediately notify the Owner if a claim is made by a third
party with respect to this Agreement or the Mortgage Loans. The Servicer shall
assume (with the written notification to the Owner) the defense of any such
claim and pay all reasonable expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against the Servicer or the Owner, subject to limitation
pursuant to this Section 6.1, in respect of such claim. The Servicer shall
follow any written instructions received from the Owner in connection with any
such claim and the Owner shall promptly reimburse the Servicer for all amounts
reasonably advanced by it pursuant to the preceding sentence, except when the
claim (a) is related to the Servicer's obligations to indemnify the Owner
pursuant hereto, (b) results from the failure of the Servicer to service the
Mortgage Loans in compliance with the terms of this Agreement or (c) results
from the Servicer's willful misconduct, bad faith or negligence in performing
its duties under this Agreement.
With respect to any Mortgage Loan, in the event that the
Owner records or causes to be recorded in the appropriate public recording
office of the jurisdiction in which the related Mortgaged Property is located
the related Assignment of Mortgage which designates the Owner as the holder of
record of the Mortgage, the Owner shall comply with the provisions of Section
5.2(a) regarding the execution and delivery of release and reconveyance
documents, and shall immediately complete, sign and return to the Servicer any
additional documents that may be required of the holder of record of the
Mortgage and may be reasonably requested by the Servicer in order to permit
the Servicer to comply with the Servicer's servicing obligations, and, in its
capacity as the holder of record, shall take such other action as may be
reasonably requested by the Servicer. In addition, if, as a result of the
recording of the related Assignment of Mortgage, the Owner, in its capacity as
the holder of record, receives written notice of any action with respect to
the related Mortgage or the related Mortgaged Property, the Owner shall send a
copy of such notice to the Servicer immediately in accordance with the
provisions of Section 9.8 of this Agreement. The Owner agrees that the
Servicer shall have no liability to the Owner for the Owner's failure to
comply with the provisions set forth in this paragraph.
Section 6.2 Servicer Covenants; Merger or Consolidation of
the Servicer
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(a) The Servicer covenants that it will keep in full force
and effect its existence, rights and franchises as a federal savings bank, and
its status as a Xxxxxx Xxx or Xxxxxxx Mac approved servicer in good standing
and will obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement or any
of the Mortgage Loans and to perform its duties under this Agreement.
(b) Any Person into which the Servicer may be merged or
consolidated, or any business organization resulting from any merger,
conversion or consolidation to which the Servicer shall be a party, or any
Person succeeding to all or substantially all of the business or assets of the
Servicer (whether or not related to loan servicing), shall be the successor of
the Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the Servicer shall not,
without the prior written approval of the Owner, be a party to any such
merger, consolidation or conversion, or sell or otherwise dispose of all or
substantially all of its business or assets unless the successor or surviving
person shall be an institution that is a Xxxxxx Mae or Xxxxxxx Mac approved
servicer in good standing.
Section 6.3 Limitation on Liability of the Servicer and
Others
The Servicer and the directors, officers, employees or
agents of the Servicer shall not be under any liability to the Owner for (a)
any action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, (b) errors in judgment, or (c) any action or
inaction in accordance with the direction or consent of the Owner; provided,
however, this provision shall not protect the Servicer against any breach of
warranties or representations made herein, any failure to perform its
obligations in accordance with any standard of care set forth in this
Agreement (unless in accordance with the direction or consent of the Owner),
or any liability which would otherwise be imposed by reason of willful
misconduct, bad faith or negligence in the performance of its duties or by
reason of any breach of the terms and conditions of the Agreement. The
Servicer and any officer, employee or agent of the Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by any Person respecting any matters arising hereunder. Subject to Section
6.1, the Servicer shall not be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties under this
Agreement and which may involve it in any expense or liability; provided,
however, that the Servicer may, with the consent of the Owner, undertake any
such action which it may deem necessary or desirable with respect to this
Agreement and the rights, duties and the interests of the parties hereto. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be reimbursed to the Servicer in accordance with
Section 6.1.
Section 6.4 Servicer Not to Resign
The Servicer shall not resign from the obligations and
duties hereby imposed on it except by mutual consent of the Servicer and the
Owner or upon the determination that the Servicer's duties hereunder are no
longer permissible under Applicable Requirements and such incapacity cannot be
cured by the Servicer. Any such determination permitting the resignation of
the Servicer shall be evidenced by an Opinion of Counsel to such effect
delivered to the Owner. No such resignation shall become effective until a
successor which satisfies the
38
requirements set forth in Section 9.1 has assumed the Servicer's
responsibilities and obligations hereunder in accordance with such Section.
Without in any way limiting the generality of this Section
6.4, in the event that the Servicer either shall assign this Agreement or the
servicing responsibilities hereunder or delegate its duties hereunder or any
portion thereof or sell or otherwise dispose of all or substantially all of
its property or assets, without the prior written consent of the Owner, then
the Owner shall have the right to terminate this Agreement upon notice given
as set forth in Section 8.2, without any payment of any penalty or damages and
without any liability whatsoever to the Servicer or any third party.
Section 6.5 No Transfer of Servicing
The Servicer acknowledges that the Owner has entered into
this Agreement with the Servicer in reliance upon the adequacy of the
Servicer's servicing facilities, plan, personnel, records, and procedures, its
integrity, reputation, and financial standing and the continuance thereof.
Without in any way limiting the generality of this Section, the Servicer shall
not either assign this Agreement or the servicing hereunder without the prior
written approval of the Owner in its sole discretion.
ARTICLE VII
DEFAULT
Section 7.1 Events of Default
In case one or more of the following Events of Default by
the Servicer shall occur and be continuing:
(i) any failure by the Servicer to remit to the Owner when
due any payment required to be made under the terms of this
Agreement, which failure continues unremedied for a period of two
(2) days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the
Servicer by the Owner; the Owner shall use reasonable efforts to
notify the Servicer that it has not received the payment due, but
the Owner's notice shall not be a condition of the Event of
Default; or
(ii) any failure by the Servicer to duly observe or perform,
in any material respect, any other covenant, obligation or
agreement of the Servicer as set forth in this Agreement, which
failure continues unremedied for a period of 30 days after the
date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Servicer by the
Owner; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
including bankruptcy, marshaling of assets and liabilities, or
similar proceedings, or for the winding-up or liquidation of its
affairs, shall
39
have been entered against the Servicer and such decree or
order shall have remained in force, undischarged or unstayed for a
period of thirty (30) days; or
(iv) the Servicer shall consent to the appointment of a
conservator, receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to the Servicer or relating to
all or substantially all of the Servicer's property; or
(v) the Servicer shall admit in writing its inability to pay
its debts as they become due, file a petition to take advantage of
any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligation or ceases its normal business
operations for three (3) Business Days; or
(vi) failure by the Servicer to maintain its license to do
business in any jurisdiction where a Mortgaged Property is located
if such license is required and such failure continues unremedied
for a period of thirty (30) days; or
(vii) the Servicer attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or the
servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof in violation of this Agreement,
including Section 6.5; or
(viii) the Servicer shall cease to be an approved servicer
for Xxxxxx Xxx or Xxxxxxx Mac.
(ix) the Servicer shall cease to have a minimum net worth of
$25,000,000 as determined in accordance with the Financial
Accounting Standards Board's generally accepted accounting
principles;
then, and in each and every such case, so long as such Event of Default shall
not have been remedied, the Owner, by notice in writing to the Servicer (in
each such instance, the "Defaulted Servicer"), may, in addition to whatever
rights the Owner may have at law or equity to damages, including injunctive
relief and specific performance, commence termination of all of the rights and
obligations of the Defaulted Servicer under this Agreement and may exercise
any and all other remedies available at law or at equity. Upon receipt by the
Defaulted Servicer of such written notice from the Owner stating the intent to
terminate the Defaulted Servicer as servicer under this Agreement as a result
of such Event of Default, all authority and power of the Defaulted Servicer
under this Agreement, whether with respect to the Mortgage Loans or otherwise,
shall pass to and be vested in the successor appointed pursuant to Section
9.1. Upon written request from the Owner, the Defaulted Servicer shall, at its
sole expense, prepare, execute, and deliver to a successor any and all
documents and other instruments, place in such successor's possession all
Collateral Files and Servicing Files, and do or cause to be done all other
acts or things necessary or appropriate to effect the purposes of such notice
of termination, all of which shall be undertaken immediately and shall be
completed as soon as possible and in all events by not later than thirty (30)
Business Days following the Owner's request therefor. The Defaulted Servicer
agrees to cooperate with the Owner and such successor in effecting the
40
termination of the Defaulted Servicer's responsibilities and rights hereunder,
including, without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by the Defaulted Servicer to the Custodial Account, the Escrow Account or the
REO Account and all other amounts which may thereafter be received with
respect to the Mortgage Loans and to which the Defaulted Servicer is not
entitled pursuant to the terms of this Agreement.
Section 7.2 Waiver of Defaults
The Owner may waive any default by the Defaulted Servicer in
the performance of its obligations hereunder and its consequences. Upon any
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereto except to the extent
expressly so waived.
Section 7.3 Survival of Certain Obligations and Liabilities
of the Defaulted Servicer
The representations, warranties, covenants, indemnities and
agreements of the parties provided in this Agreement and the parties'
obligations hereunder shall survive the execution and delivery and the
termination or expiration of this Agreement. Notwithstanding any termination
of the rights and obligations of the Defaulted Servicer pursuant to this
Section 7, the Defaulted Servicer shall remain liable for any actions of the
Defaulted Servicer prior to the effective time of such termination.
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Agreement
This Agreement shall terminate upon any of: (i) the later of
the distribution to the Owner of final payment or liquidation with respect to
the last Mortgage Loan and each REO Property, or the disposition of all
property acquired upon foreclosure or deed in lieu of foreclosure with respect
to the last Mortgage Loan and the remittance of all funds due hereunder, (ii)
the mutual consent of the parties in writing, or (iii) the termination of the
Servicer pursuant to Section 8.2.
Section 8.2 Termination of the Servicer due to an Event of
Default
(a) Upon 30 days' written notice, the Owner may, at its sole
option, upon the occurrence of an Event of Default and in accordance with
Section 7.1, terminate any rights the Servicer may have hereunder. Any such
notice of termination shall be in writing and delivered to the terminated
Servicer (in such instance, the "Terminated Servicer") by registered mail as
provided in Section 9.8 of this Agreement. If the Owner so terminates the
rights of a Terminated Servicer, the Owner with full cooperation of the
Terminated Servicer shall arrange for the
41
transfer of servicing to, at the Owner's option, the Owner or a third party,
and the Terminated Servicer shall continue servicing, for the Servicing Fee
provided herein, the Mortgage Loans under this Agreement until the Owner gives
the Terminated Servicer notice of the transfer and such transfer has been
completed.
(b) The Terminated Servicer agrees to cooperate with the
Owner and such successor in effecting the termination of the Terminated
Servicer's responsibilities and rights hereunder, including, without
limitation, the transfer to such successor for administration by it of all
cash amounts which shall at the time be credited by the Terminated Servicer to
the Custodial Account, the Escrow Account or the REO Account, or thereafter be
received with respect to the Mortgage Loans and to which the Terminated
Servicer is not entitled pursuant to the terms of this Agreement.
Section 8.3 Termination Without Cause
Upon at least 30 days prior notice, the Owner may terminate,
at its sole option, the Servicer without cause. Any such notice of termination
shall be in writing and delivered to the Servicer and any Rating Agency by
registered mail as provided in Section 9.7. In the event the Owner so chooses
to terminate the Servicer, the Servicer shall be entitled to receive, as
liquidated damages, upon its termination as Servicer hereunder without cause
pursuant to this Section 8.3, an amount equal to four percent (4%) of the
aggregate outstanding principal amount of each Mortgage Loan as of the
termination date paid by the Owner to the Servicer.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Successor to the Servicer
(a) Prior to termination of the Servicer's responsibilities
and duties under this Agreement pursuant to Section 6.4, 7.1, 8.1 or 8.2, the
Owner shall either (i) succeed to and assume all of the Servicer's
responsibilities, rights, duties, and obligations under this Agreement from
and after the date of such succession or (ii) appoint a successor to the
Servicer that shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Servicer under this Agreement
prior to the termination of the Servicer's responsibilities, duties and
liabilities under this Agreement pursuant to Section 8.2 above. In the event
that the Servicer's duties, responsibilities, and liabilities under this
Agreement shall be terminated pursuant to the foregoing Sections, the Servicer
shall discharge such duties and responsibilities, and be compensated therefor
as provided in this Agreement, during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of the Servicer pursuant to the foregoing Sections shall not become effective
until a successor shall have been appointed pursuant to this Section and shall
in no event relieve the Servicer of its non-servicing duties, obligations,
covenants, representations and warranties, it being understood and agreed that
the provisions of Sections 5.10, 6.1, Article 7 and
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Article 8 shall be applicable to the Servicer notwithstanding any such
resignation or termination of the Servicer or the termination of this
Agreement.
(b) The Servicer shall promptly deliver to the successor (i)
the funds in the Custodial Account and the Escrow Account to which the Owner
is entitled pursuant to the terms of this Agreement, (ii) all other funds to
which the Owner is entitled pursuant to the terms of this Agreement net of any
unreimbursed Advances, (iii) all other amounts which may thereafter be
received with respect to the Mortgage Loans and to which the Servicer is not
entitled pursuant to the terms of this Agreement and (iv) all Collateral Files
and Servicing Files and related documents and statements held by it hereunder.
The Servicer shall account for all funds and shall execute and deliver such
instruments and do such other things as may reasonably be required to more
fully and definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer.
(c) Upon a successor's acceptance of appointment as such,
the Owner shall notify the Servicer of such appointment.
Section 9.2 Amendment
This Agreement may be amended from time to time by the
parties by written agreement signed by
both of the parties.
Section 9.3 Duration of Agreement
This Agreement shall continue in existence and effect until
terminated as herein provided.
Section 9.4 Governing Law
THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS OF NEW YORK OR ANY OTHER JURISDICTION.
Section 9.5 General Interpretive Principles
For purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well
as the singular, and the use of any gender herein shall be deemed
to include the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles;
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(iii) references herein to "Articles," "Sections,"
"Subsections," "Paragraphs," and other subdivisions without
reference to a document are to designated Articles, Sections,
Subsections, Paragraphs, and other subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference
to a Section is a reference to such Subsection as contained in the
same Section in which the reference appears, and this rule shall
also apply to Paragraphs and other subdivisions;
(v) the words "herein," "hereof," "hereunder," and other
words of similar import refer to this Agreement as a whole and not
to any particular provision; and
(vi) the term "include" or "including" shall mean without
limitation by reason of enumeration.
Section 9.6 Reproduction of Documents
This Agreement and all documents relating hereto, including
without limitation (i) consents, waivers, and modifications which may
hereafter be executed, (ii) documents received by any party at the closing,
and (iii) financial statements, certificates, and other information previously
or hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, microcard, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as
the original itself in any judicial or administrative proceeding, whether or
not the original is in existence and whether or not such reproduction was made
by a party in the regular course of business, and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.
Section 9.7 Notices
All demands, notices, consents, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered or delivered by facsimile, overnight
courier, or registered mail, postage prepaid, or delivered by telefacsimile,
to:
(i) in the case of the Servicer, at the address set forth
below or such other address as may hereafter be furnished to the
Owner in writing by the Servicer:
IndyMac Bank, F.S.B
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Secondary Marketing
(ii) in the case of the Owner, at the address set forth
below, or such other address as may hereafter be furnished to the
Servicer by the Owner:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
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Attention: Xxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Xxxxxxx Xxxxx Mortgage Company
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxx Xxxxx Mortgage Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and in the case of any subsequent Owner, as set forth in written notice
supplied to the Servicer by such subsequent Owner. All reports that are due to
the Owner from the Servicer pursuant to Section 4.2 shall be deemed to have
been duly given if delivered to the Internet address from time to time
provided by the Owner to the Servicer.
Section 9.8 Severability of Provisions
If any one or more of the covenants, agreements, provisions
or terms of this Agreement shall be held invalid for any reason whatsoever,
then such covenants, agreements, provisions or terms shall be deemed severable
from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the
other covenants, agreements, provisions or terms of this Agreement or the
rights of the Owner hereunder. If the invalidity of any part, provision,
representation or warranty of this Agreement shall deprive any party of the
economic benefit intended to be conferred by this Agreement, the parties shall
negotiate in good faith to develop a structure the economic effect of which is
nearly as possible the same as the economic effect of this Agreement without
regard to such invalidity.
Section 9.9 Disclosure of Relationship
Each party (including the respective affiliates) shall have
the right upon obtaining prior written consent from the other party, from time
to time, to publish, distribute, advertise or otherwise disclose the
relationship and the general services created and performed under this
Agreement; provided, however, such disclosure shall not identify the amount or
nature of fees
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earned or to be paid hereunder. No disclosure permitted by this Section 9.10
shall include any Mortgagor information.
Section 9.10 Exhibits and Schedules
The following exhibits and schedules to this Agreement are
hereby incorporated and made a part hereof and are an integral part of this
Agreement:
Exhibit A MORTGAGE LOAN SCHEDULE
Exhibit B LIST OF COLLATERAL DOCUMENTS
Exhibit C LIST OF DOCUMENTS IN CREDIT FILE
Exhibit D FORM OF ANNUAL CERTIFICATION
Exhibit E SERVICING CRITERIA TO BE ADDRESSED IN
ASSESSMENT OF COMPLIANCE
Section 9.11 Counterparts; Successors and Assigns
This Agreement may be executed in one or more counterparts
and by the different parties hereto on separate counterparts, each of which,
when so executed, shall be deemed to be an original; such counterparts,
together, shall constitute one and the same agreement. Subject to Sections
6.4, 6.5, 7.1 and 8.1, this Agreement shall inure to the benefit of and be
binding upon the Servicer, the Owner and their respective successors and
assigns.
Section 9.12 Effect of Headings
The headings in this Agreement are for purposes of reference
only and shall not limit or otherwise affect the meaning hereof.
Section 9.13 Other Agreements Superseded
This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof.
Section 9.14 Confidentiality
Each of the Owner and the Servicer shall employ proper
procedures and standards designed to maintain the confidential nature of the
terms of this Agreement, except to the extent (a) the disclosure of such terms
is reasonably believed by such party to be required in connection with
regulatory requirements or other legal requirements relating to its affairs;
(b) such terms are disclosed to any one or more of such party's employees,
officers, directors, agents, attorneys or accountants who would have access to
the contents of this Agreement and such data and information in the normal
course of the performance of such Person's duties for such party, to the
extent such party has procedures in effect to inform such Person of the
confidential nature thereof; (c) such terms are disclosed in a prospectus,
prospectus supplement or private placement
46
memorandum relating to a Securitization of the Mortgage Loans by the Owner (or
an affiliate assignee thereof) or to any Person in connection with the resale
or proposed resale of all or a portion of the Mortgage Loans by such party in
accordance with the terms of this Agreement; and (d) that is reasonably
believed by such party to be necessary for the enforcement of such party's
rights under this Agreement.
ARTICLE X
COMPLIANCE WITH REGULATION AB
Section 10.1 Intent of the Parties; Reasonableness.
The Owner and the Servicer acknowledge and agree that the
purpose of Article X of this Agreement is to facilitate compliance by the
Owner and any Depositor with the provisions of Regulation AB and related rules
and regulations of the Commission. Although Regulation AB is applicable by its
terms only to offerings of asset-backed securities that are registered under
the Securities Act, the Servicer acknowledges that investors in privately
offered securities may require that the Owner or any Depositor provide
comparable disclosure in unregistered offerings. References in this Agreement
to compliance with Regulation AB include provision of comparable disclosure in
private offerings.
Neither the Owner nor any Depositor shall exercise its right
to request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the
Commission thereunder (or the provision in a private offering of disclosure
comparable to that required under the Securities Act). The Servicer
acknowledges that interpretations of the requirements of Regulation AB may
change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply with
requests made by the Owner or any Depositor in good faith for delivery of
information under these provisions on the basis of evolving interpretations of
Regulation AB. In connection with any Securitization Transaction, the Servicer
shall cooperate fully with the Owner to deliver to the Owner (including any of
its assignees or designees) and any Depositor, any and all statements,
reports, certifications, records and any other information necessary in the
good faith determination of the Owner or any Depositor to permit the Owner or
such Depositor to comply with the provisions of Regulation AB, together with
such disclosures relating to the Servicer any Subservicer and the Mortgage
Loans, or the servicing of the Mortgage Loans, reasonably believed by the
Owner or any Depositor to be necessary in order to effect such compliance.
The Owner (including any of its assignees or designees)
shall cooperate with the Servicer by providing timely notice of requests for
information under these provisions and by reasonably limiting such requests to
information required, in the Owner's reasonable judgment, to comply with
Regulation AB.
Section 10.2 Additional Representations and Warranties of
the Servicer.
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(a) The Servicer shall be deemed to represent to the Owner
and to any Depositor, as of the date on which information is first provided to
the Owner or any Depositor under Section 10.3 that, except as disclosed in
writing to the Owner or such Depositor prior to such date: (i) the Servicer is
not aware and has not received notice that any default, early amortization or
other performance triggering event has occurred as to any other securitization
due to any act or failure to act of the Servicer; (ii) the Servicer has not
been terminated as servicer in a residential mortgage loan securitization,
either due to a servicing default or to application of a servicing performance
test or trigger; (iii) no material noncompliance with the applicable servicing
criteria with respect to other securitizations of residential mortgage loans
involving the Servicer as servicer has been disclosed or reported by the
Servicer; (iv) no material changes to the Servicer's policies or procedures
with respect to the servicing function it will perform under this Agreement
and any Reconstitution Agreement for mortgage loans of a type similar to the
Mortgage Loans have occurred during the three-year period immediately
preceding the related Securitization Transaction; (v) there are no aspects of
the Servicer's financial condition that could have a material adverse effect
on the performance by the Servicer of its servicing obligations under this
Agreement or any Reconstitution Agreement; (vi) there are no material legal or
governmental proceedings pending (or known to be contemplated) against the
Servicer or any Subservicer; and (vii) there are no affiliations,
relationships or transactions relating to the Servicer or any Subservicer with
respect to any Securitization Transaction and any party thereto identified by
the related Depositor of a type described in Item 1119 of Regulation AB.
(b) If so requested by the Owner or any Depositor on any
date following the date on which information is first provided to the Owner or
any Depositor under Section 10.3, the Servicer shall, within five Business
Days following such request, confirm in writing the accuracy of the
representations and warranties set forth in paragraph (a) of this Section or,
if any such representation and warranty is not accurate as of the date of such
request, provide reasonably adequate disclosure of the pertinent facts, in
writing, to the requesting party.
Section 10.3 Information to Be Provided by the Servicer.
In connection with any Securitization Transaction the
Servicer shall (i) within five Business Days following request by the Owner or
any Depositor, provide to the Owner and such Depositor (or cause each
Subservicer to provide), in writing and in form and substance reasonably
satisfactory to the Owner and such Depositor, the information and materials
specified in paragraphs (a), (c) and (f) of this Section, and (ii) as promptly
as practicable following notice to or discovery by the Servicer, provide to
the Owner and any Depositor (in writing and in form and substance reasonably
satisfactory to the Owner and such Depositor) the information specified in
paragraph (d) of this Section.
(a) If so requested by the Owner or any Depositor, the
Servicer shall provide such information regarding each each Subservicer,
meeting the requirements of Items 1103(a)(1), 1117 and 1119 of Regulation AB.
Such information shall include, at a minimum:
(A) [Reserved];
(B) [Reserved];
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(C) a description of any material legal or
governmental proceedings pending (or known to be
contemplated) against the Servicer and each Subservicer; and
(D) a description of any affiliation or relationship
between the Servicer, each Subservicer and any of the
following parties to a Securitization Transaction, as such
parties are identified to the Servicer by the Owner or any
Depositor in writing in advance of such Securitization
Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) [Reserved].
(c) If so requested by the Owner or any Depositor, the
Servicer shall provide such information regarding the Servicer, as servicer of
the Mortgage Loans, and each Subservicer (each of the Servicer and each
Subservicer, for purposes of this paragraph, a "Servicer"), as is requested
for the purpose of compliance with Item 1108 of Regulation AB. Such
information shall include, at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been
servicing residential mortgage loans; a general discussion
of the Servicer's experience in servicing assets of any type
as well as a more detailed discussion of the Servicer's
experience in, and procedures for, the servicing function it
will perform under this Agreement and any Reconstitution
Agreements; information regarding the size, composition and
growth of the Servicer's portfolio of residential mortgage
loans of a type similar to the Mortgage Loans and
information on factors related to the Servicer that may be
material, in the good faith judgment of the Owner or any
Depositor, to any analysis of the servicing of the Mortgage
Loans or the related asset-backed securities, as applicable,
including, without limitation:
(1) whether any prior securitizations of
mortgage loans of a type similar to the Mortgage Loans
involving the Servicer have defaulted or experienced
an early amortization or other performance triggering
event because of servicing during the three-year
period immediately preceding the related
Securitization Transaction;
(2) the extent of outsourcing the Servicer
utilizes;
49
(3) whether there has been previous disclosure
of material noncompliance with the applicable
servicing criteria with respect to other
securitizations of residential mortgage loans
involving the Servicer as a servicer during the
three-year period immediately preceding the related
Securitization Transaction;
(4) whether the Servicer has been terminated as
servicer in a residential mortgage loan
securitization, either due to a servicing default or
to application of a servicing performance test or
trigger; and
(5) such other information as the Owner or any
Depositor may reasonably request for the purpose of
compliance with Item 1108(b)(2) of Regulation AB;
(C) a description of any material changes during the
three-year period immediately preceding the related
Securitization Transaction to the Servicer's policies or
procedures with respect to the servicing function it will
perform under this Agreement and any Reconstitution
Agreements for mortgage loans of a type similar to the
Mortgage Loans;
(D) information regarding the Servicer's financial
condition, to the extent that there is a material risk that
an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the
performance by the Servicer of its servicing obligations
under this Agreement or any Reconstitution Agreement;
(E) information regarding advances made by the
Servicer on the Mortgage Loans and the Servicer's overall
servicing portfolio of residential mortgage loans for the
three-year period immediately preceding the related
Securitization Transaction, which may be limited to a
statement by an authorized officer of the Servicer to the
effect that the Servicer has made all advances required to
be made on residential mortgage loans serviced by it during
such period, or, if such statement would not be accurate,
information regarding the percentage and type of advances
not made as required, and the reasons for such failure to
advance;
(F) a description of the Servicer's processes and
procedures designed to address any special or unique factors
involved in servicing loans of a similar type as the
Mortgage Loans;
(G) a description of the Servicer's processes for
handling delinquencies, losses, bankruptcies and recoveries,
such as through liquidation of mortgaged properties, sale of
defaulted mortgage loans or workouts; and
(H) information as to how the Servicer defines or
determines delinquencies and charge-offs, including the
effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect
to delinquency and loss experience.
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(d) If so requested by the Owner or any Depositor for the
purpose of satisfying its reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Servicer shall (or shall
cause each Subservicer to) (i) notify the Owner and any Depositor in writing
of (A) any material litigation or governmental proceedings pending against the
Servicer or any Subservicer and (B) any affiliations or relationships that
develop following the closing date of a Securitization Transaction between the
Servicer or any Subservicer and any of the parties specified in clause (D) of
paragraph (a) of this Section (and any other parties identified in writing by
the requesting party) with respect to such Securitization Transaction, and
(ii) provide to the Owner and any Depositor a description of such proceedings,
affiliations or relationships.
(e) As a condition to the succession to the Servicer or any
Subservicer as servicer or subservicer under this Agreement or any
Reconstitution Agreement by any Person (i) into which the Servicer or such
Subservicer may be merged or consolidated, or (ii) which may be appointed as a
successor to the Servicer or any Subservicer, the Servicer shall provide to
the Owner and any Depositor, at least 15 calendar days prior to the effective
date of such succession or appointment, (x) written notice to the Owner and
any Depositor of such succession or appointment and (y) in writing and in form
and substance reasonably satisfactory to the Owner and such Depositor, all
information reasonably requested by the Owner or any Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to any class of asset-backed securities.
(f) In addition to such information as the Servicer, as
servicer, is obligated to provide pursuant to other provisions of this
Agreement, if so requested by the Owner or any Depositor, the Servicer shall
provide such information regarding the performance or servicing of the
Mortgage Loans as is reasonably required by the Owner or any Depositor to
facilitate preparation of distribution reports in accordance with Item 1121 of
Regulation AB and to permit the Owner or such Depositor to comply with the
provisions of Regulation AB relating to Static Pool Information regarding the
performance of the Mortgage Loans on the basis of the Owner's or such
Depositor's reasonable, good faith interpretation of the requirements of Item
1105(a)(1)-(3) of Regulation AB (including without limitation as to the format
and content of such Static Pool Information). Such information shall be
provided concurrently with the monthly reports otherwise required to be
delivered by the servicer under this Agreement, commencing with the first such
report due not less than ten (10) Business Days following such request.
Section 10.4 Servicer Compliance Statement.
On or before March 1 of each calendar year, commencing in
2007, the Servicer shall deliver to the Owner and any Depositor a statement of
compliance addressed to the Owner and such Depositor and signed by an
authorized officer of the Servicer, to the effect that (i) a review of the
Servicer's activities during the immediately preceding calendar year (or
applicable portion thereof) and of its performance under this Agreement and
any applicable Reconstitution Agreement during such period has been made under
such officer's supervision, and (ii) to the best of such officers' knowledge,
based on such review, the Servicer has fulfilled all of its obligations under
this Agreement and any applicable Reconstitution Agreement in all material
respects throughout such calendar year (or applicable portion thereof) or, if
there has been a failure to fulfill any such obligation in any material
respect, specifically identifying each such failure known to such officer and
the nature and the status thereof.
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Section 10.5 Report on Assessment of Compliance and
Attestation.
(a) On or before March 1 of each calendar year, commencing
in 2007, the Servicer shall:
(i) deliver to the Owner and any Depositor a report
(in form and substance reasonably satisfactory to the Owner
and such Depositor) regarding the Servicer's assessment of
compliance with the Servicing Criteria during the
immediately preceding calendar year, as required under Rules
13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB. Such report shall be addressed to the Owner
and such Depositor and signed by an authorized officer of
the Servicer, and shall address each of the Servicing
Criteria specified on a certification substantially in the
form of Exhibit E hereto delivered to the Owner concurrently
with the execution of this Agreement;
(ii) deliver to the Owner and any Depositor a report
of a registered public accounting firm reasonably acceptable
to the Owner and such Depositor that attests to, and reports
on, the assessment of compliance made by the Servicer and
delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1-02(a)(3) and
2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act;
(iii) cause each Subservicer, and each Subcontractor
determined by the Servicer pursuant to Section 10.6(b) to be
"participating in the servicing function" within the meaning
of Item 1122 of Regulation AB, to deliver to the Owner and
any Depositor an assessment of compliance and accountants'
attestation as and when provided in paragraphs (a) and (b)
of this Section; and
(iv) if requested by the Owner or any Depositor not
later than February 1 of the calendar year in which such
certification is to be delivered, deliver to the Owner, any
Depositor and any other Person that will be responsible for
signing the certification (a "Sarbanes Certification")
required by Rules 13a-14(d) and 15d-14(d) under the Exchange
Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of
2002) on behalf of an asset-backed issuer with respect to a
Securitization Transaction a certification in the form
attached hereto as Exhibit D.
The Servicer acknowledges that the parties identified in
clause (a)(iv) above may rely on the certification provided by the Servicer
pursuant to such clause in signing a Sarbanes Certification and filing such
with the Commission. Neither the Owner nor any Depositor will request delivery
of a certification under clause (a)(iv) above, unless a Depositor is required
under the Exchange Act to file an annual report on Form 10-K with respect to
an issuing entity whose asset pool includes Mortgage Loans.
(b) Each assessment of compliance provided by a Subservicer
pursuant to Section 10.5(a)(i) shall address each of the Servicing Criteria
specified on a certification substantially in the form of Exhibit E hereto
delivered to the Owner concurrently with the execution of this Agreement or,
in the case of a Subservicer subsequently appointed as such, on or prior to
the date of such appointment. An assessment of compliance provided by a
Subcontractor pursuant
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to Section 10.5(a)(iii) need not address any elements of the Servicing Criteria
other than those specified by the Servicer pursuant to Section 10.6.
Section 10.6 Use of Subservicers and Subcontractors.
The Servicer shall not hire or otherwise utilize the
services of any Subservicer to fulfill any of the obligations of the Servicer
as servicer under this Agreement or any Reconstitution Agreement unless the
Servicer complies with the provisions of paragraph (a) of this Section. The
Servicer shall not hire or otherwise utilize the services of any
Subcontractor, and shall not permit any Subservicer to hire or otherwise
utilize the services of any Subcontractor, to fulfill any of the obligations
of the Servicer as servicer under this Agreement or any Reconstitution
Agreement unless the Servicer complies with the provisions of paragraph (b) of
this Section.
(a) It shall not be necessary for the Servicer to seek the
consent of the Owner or any Depositor to the utilization of any Subservicer.
The Servicer shall cause any Subservicer used by the Servicer (or by any
Subservicer) for the benefit of the Owner and any Depositor to comply with the
provisions of this Section and with Sections 13.02, 13.03(c) and (e), 13.04,
13.05 and 13.07 of this Agreement to the same extent as if such Subservicer
were the Servicer, and to provide the information required with respect to
such Subservicer under Section 10.3(d) of this Agreement. The Servicer shall
be responsible for obtaining from each Subservicer and delivering to the Owner
and any Depositor any servicer compliance statement required to be delivered
by such Subservicer under Section 10.4, any assessment of compliance and
attestation required to be delivered by such Subservicer under Section 10.5
and any certification required to be delivered to the Person that will be
responsible for signing the Sarbanes Certification under Section 10.5 as and
when required to be delivered.
(b) It shall not be necessary for the Servicer to seek the
consent of the Owner or any Depositor to the utilization of any Subcontractor.
The Servicer shall promptly upon request provide to the Owner and any
Depositor (or any designee of the Depositor, such as a master servicer or
administrator) a written description (in form and substance satisfactory to
the Owner and such Depositor) of the role and function of each Subcontractor
utilized by the Servicer or any Subservicer, specifying (i) the identity of
each such Subcontractor, (ii) which (if any) of such Subcontractors are
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor
identified pursuant to clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor
determined to be "participating in the servicing function" within the meaning
of Item 1122 of Regulation AB, the Servicer shall cause any such Subcontractor
used by the Servicer (or by any Subservicer) for the benefit of the Owner and
any Depositor to comply with the provisions of Sections 13.05 and 13.07 of
this Agreement to the same extent as if such Subcontractor were the Servicer.
The Servicer shall be responsible for obtaining from each Subcontractor and
delivering to the Owner and any Depositor any assessment of compliance and
attestation required to be delivered by such Subcontractor under Section 10.5,
in each case as and when required to be delivered.
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Section 10.7 Indemnification; Remedies.
(a) The Servicer shall indemnify the Owner, each affiliate
of the Owner, and each of the following parties participating in a
Securitization Transaction: each sponsor and issuing entity; each Person
responsible for the preparation, execution or filing of any report required to
be filed with the Commission with respect to such Securitization Transaction,
or for execution of a certification pursuant to Rule 13a-14(d) or Rule
15d-14(d) under the Exchange Act with respect to such Securitization
Transaction; each broker dealer acting as underwriter, placement agent or
initial purchaser, each Person who controls any of such parties or the
Depositor (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act); and the respective present and former directors,
officers, employees and agents of each of the foregoing and of the Depositor,
and shall hold each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain
arising out of or based upon:
(i)(A) any untrue statement of a material fact contained or
alleged to be contained in any information, report, certification,
accountants' letter or other material provided under this Article X
by or on behalf of the Servicer, or provided in written or electronic
form under this Article X by or on behalf of any Subservicer or
Subcontractor (collectively, the "Servicer Information"), or (B) the
omission or alleged omission to state in the Servicer Information a
material fact required to be stated in the Servicer Information or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, by way of clarification, that clause (B) of this paragraph
shall be construed solely by reference to the Servicer Information
and not to any other information communicated in connection with a
sale or purchase of securities, without regard to whether the
Servicer Information or any portion thereof is presented together
with or separately from such other information;
(ii) any failure by the Servicer, any Subservicer or any
Subcontractor to deliver any information, report, certification,
accountants' letter or other material when and as required under this
Article X, including any failure by the Servicer to identify pursuant
to Section 10.6(b) any Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB; or
(iii) any breach by the Servicer of a representation or warranty
set forth in Section 10.2(a) or in a writing furnished pursuant to
Section 10.2(b) and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is
not cured by such closing date, or any breach by the Servicer of a
representation or warranty in a writing furnished pursuant to Section
10.2(b) to the extent made as of a date subsequent to such closing
date.
In the case of any failure of performance described in
clause (a)(ii) of this Section, the Servicer shall promptly reimburse the
Owner, any Depositor, as applicable, and each Person responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect
54
to such Securitization Transaction, for all costs reasonably incurred by each
such party in order to obtain the information, report, certification,
accountants' letter or other material not delivered as required by the Service,
any Subservicer or any Subcontractor.
(b) (i) Any failure by the Seller, Servicer, any Subservicer
or any Subcontractor to deliver any information, report, certification,
accountants' letter or other material when and as required under this Article
X or under Article VII of the Purchase Agreement, or any breach by the
Servicer of a representation or warranty set forth in Section 10.2(a) or in a
writing furnished pursuant to Section 10.2(b) or any breach by the Seller of a
representation or warranty set forth in Section 7.02(a) of the Purchase
Agreement or in a writing furnished pursuant to Section 7.02(b) of the
Purchase Agreement and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is not
cured by such closing date, or any breach by the Servicer of a representation
or warranty in a writing furnished pursuant to Section 10.2(b) or any breach
by the Seller of a representation or warranty in a writing furnished pursuant
to Section 7.02(b) of the Purchase Agreement to the extent made as of a date
subsequent to such closing date, shall, except as provided in clause (ii) of
this paragraph, immediately and automatically, without notice or grace period,
constitute an Event of Default with respect to the Servicer under this
Agreement and any applicable Reconstitution Agreement, and shall entitle the
Owner or Depositor, as applicable, in its sole discretion to terminate the
rights and obligations of the Servicer as servicer under this Agreement and/or
any applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement or any applicable Reconstitution Agreement to the
contrary) of any compensation to the Servicer; provided that to the extent
that any provision of this Agreement and/or any applicable Reconstitution
Agreement expressly provides for the survival of certain rights or obligations
following termination of the Servicer as servicer, such provision shall be
given effect.
(ii) Any failure by the Servicer, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Section 10.4 or
13.05, including (except as provided below) any failure by the
Servicer to identify pursuant to Section 10.6(b) any Subcontractor
"participating in the servicing function" within the meaning of
Item 1122 of Regulation AB, which continues unremedied for ten
calendar days after the date on which such information, report,
certification or accountants' letter was required to be delivered
shall constitute an Event of Default with respect to the Servicer
under this Agreement and any applicable Reconstitution Agreement,
and shall entitle the Owner or Depositor, as applicable, in its
sole discretion to terminate the rights and obligations of the
Servicer as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything
in this Agreement to the contrary) of any compensation to the
Servicer; provided that to the extent that any provision of this
Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations
following termination of the Servicer as servicer, such provision
shall be given effect.
Neither the Owner nor any Depositor shall be entitled to
terminate the rights and obligations of the Servicer pursuant to
this subparagraph (b)(ii) if a failure of the Servicer to identify
a Subcontractor "participating in the servicing function" within
the meaning of
55
Item 1122 of Regulation AB was attributable solely to the
role or functions of such Subcontractor with respect to mortgage
loans other than the Mortgage Loans.
(iii) The Servicer shall promptly reimburse the Owner (or
any designee of the Owner, such as a master servicer) and any
Depositor, as applicable, for all reasonable expenses incurred by
the Owner (or such designee) or such Depositor, as such are
incurred, in connection with the termination of the Servicer as
servicer and the transfer of servicing of the Mortgage Loans to a
successor servicer. The provisions of this paragraph shall not
limit whatever rights the Owner or any Depositor may have under
other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at
law, such as an action for damages, specific performance or
injunctive relief.
[signatures start on next page]
56
IN WITNESS WHEREOF, the Servicer and the Owner have caused
their names to be signed to this Servicing Agreement by their respective
officers thereunto duly authorized as of the day and year first above written.
SERVICER:
INDYMAC BANK, F.S.B.
By: _____________________________________
Name:
Title:
OWNER:
XXXXXXX XXXXX MORTGAGE COMPANY
By: ______________________________________
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[attach read-only diskette]
A-1
EXHIBIT B
LIST OF CREDIT DOCUMENTS
Copy of Note
Copy of Mortgage or Deed of Trust, including all riders
Copy of all riders to Note and Mortgage or Deed of Trust
Settlement statement (HUD 1)
Copy of PMI Certificate (if applicable)
Appraisal
Flood determination certificate
Hazard Insurance declaration page
Loan application
B-1
EXHIBIT C
LIST OF DOCUMENTS IN COLLATERAL FILE
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed in blank and signed in the name of the Seller by an officer
thereof;
(b) the original Assignment of Mortgage with assignee's name left
blank;
(c) the original of any guarantee executed in connection with the
Mortgage Note;
(d) the original Mortgage with evidence of recording thereon, or if
any such mortgage has not been returned from the applicable recording
office or has been lost, or if such public recording office retains
the original recorded mortgage, a photocopy of such mortgage
certified by the Seller to be a true and complete copy of the
original recorded mortgage;
(e) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(f) the originals of all intervening assignments of mortgage with
evidence of recording thereon, or if any such intervening assignment
of mortgage has not been returned from the applicable recording
office or has been lost or if such public recording office retains
the original recorded assignments of mortgage, a photocopy of such
intervening assignment of mortgage, certified by the Seller to be a
true and complete copy of the original recorded intervening
assignment of mortgage;
(g) the original mortgagee title insurance policy including an
Environmental Protection Agency Endorsement and, with respect to any
Adjustable Rate Mortgage Loan, an adjustable-rate endorsement;
(h) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage;
(i) a copy of any applicable power of attorney; and
(j) with respect to any Cooperative Loan, the applicable Cooperative
Loan Documents.
C-1
EXHIBIT D
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the "Agreement"), among
Indymac Bank, F.S.B and Xxxxxxx Sachs Mortgage Company.
I, ________________________________, the
_______________________ of Indymac Bank, F.S.B. (the "Company"), certify to
Xxxxxxx Xxxxx Mortgage Co., [the Depositor], and the [Master Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge
and intent that they will rely upon this certification, that:
1. I have reviewed the servicer compliance statement of the
Company provided in accordance with Item 1123 of Regulation AB
(the "Compliance Statement"), the report on assessment of the
Company's compliance with the servicing criteria set forth in Item
1122(d) of Regulation AB (the "Servicing Criteria"), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange
Act of 1934, as amended (the "Exchange Act") and Item 1122 of
Regulation AB (the "Servicing Assessment"), the registered public
accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b)
of Regulation AB (the "Attestation Report"), and all servicing
reports, officer's certificates and other information relating to
the servicing of the Mortgage Loans by the Company during 200[ ]
that were delivered by the Company to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee] pursuant to the
Agreement (collectively, the "Company Servicing Information");
2. Based on my knowledge, the Company Servicing Information,
taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements made, in the light of the circumstances under which
such statements were made, not misleading with respect to the
period of time covered by the Company Servicing Information;
3. Based on my knowledge, all of the Company Servicing
Information required to be provided by the Company under the
Agreement has been provided to the [Depositor] [Master Servicer]
[Securities Administrator] [Trustee];
4. I am responsible for reviewing the activities performed
by the Company as servicer under the Agreement, and based on my
knowledge and the compliance review conducted in preparing the
Compliance Statement and except as disclosed in the Compliance
Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all
material respects; and
5. The Compliance Statement required to be delivered by the
Company pursuant to the Agreement, and the Servicing Assessment
and Attestation Report required to be provided by the Company and
by any Subservicer or Subcontractor pursuant to the Agreement,
have been provided to the [Depositor] [Master Servicer]. Any
material instances of noncompliance described in such reports have
been disclosed to the
D-1
[Depositor] [Master Servicer]. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in
such reports.
Date:__________________________________
By: ___________________________________
Name:
Title:
D-2
EXHIBIT E
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by Indymac
Bank, F.S.B., [Subservicer] shall address, at a minimum, the criteria
identified as below as "Applicable Servicing Criteria":
------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------------------------------------
General Servicing Considerations
------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default
in accordance with the transaction agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced
to third parties, policies and procedures are
instituted to monitor the third party's performance
and compliance with such servicing activities.
------------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans
are maintained.
------------------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing
function throughout the reporting period in the
amount of coverage required by and otherwise in
accordance with the terms of the transaction
agreements.
------------------------------------------------------------------------------------------------------------
Cash Collection and Administration
------------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days
following receipt, or such other number of days
specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized
personnel.
------------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding
collections, cash flows or distributions, and any
interest or other fees charged for such advances, are
made, reviewed and approved as specified in the
transaction agreements.
------------------------------------------------------------------------------------------------------------
E-1
------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as
cash reserve accounts or accounts established as a
form of overcollateralization, are separately
maintained (e.g., with respect to commingling of
cash) as set forth in the transaction agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this
criterion, "federally insured depository institution"
with respect to a foreign financial institution means
a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities
Exchange Act.
------------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
------------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for
all asset-backed securities related bank accounts,
including custodial accounts and related bank
clearing accounts. These reconciliations are (A)
mathematically accurate; (B) prepared within 30
calendar days after the bank statement cutoff date,
or such other number of days specified in the
transaction agreements; (C) reviewed and approved by
someone other than the person who prepared the
reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are
resolved within 90 calendar days of their original
identification, or such other number of days
specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed
with the Commission, are maintained in accordance
with the transaction agreements and applicable
Commission requirements. Specifically, such reports
(A) are prepared in accordance with timeframes and
other terms set forth in the transaction agreements;
(B) provide information calculated in accordance with
the terms specified in the transaction agreements;
(C) are filed with the Commission as required by its
rules and regulations; and (D) agree with investors'
or the trustee's records as to the total unpaid
principal balance and number of mortgage loans
serviced by the Servicer.
------------------------------------------------------------------------------------------------------------
E-2
------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted
in accordance with timeframes, distribution priority
and other terms set forth in the transaction agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within
two business days to the Servicer's investor records,
or such other number of days specified in the
transaction agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor
reports agree with cancelled checks, or other form of
payment, or custodial bank statements.
------------------------------------------------------------------------------------------------------------
Pool Asset Administration
------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is
maintained as required by the transaction agreements
or related mortgage loan documents.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded
as required by the transaction agreements
------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance
with any conditions or requirements in the
transaction agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs,
made in accordance with the related mortgage loan
documents are posted to the Servicer's obligor
records maintained no more than two business days
after receipt, or such other number of days specified
in the transaction agreements, and allocated to
principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans
agree with the Servicer's records with respect to an
obligor's unpaid principal balance.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan modifications or
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset
documents.
------------------------------------------------------------------------------------------------------------
E-3
------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds in lieu of
foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in
accordance with the timeframes or other requirements
established by the transaction agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such
records are maintained on at least a monthly basis,
or such other period specified in the transaction
agreements, and describe the entity's activities in
monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment
rescheduling plans in cases where delinquency is
deemed temporary (e.g., illness or unemployment).
------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based
on the related mortgage loan documents.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's mortgage
loan documents, on at least an annual basis, or such
other period specified in the transaction agreements;
(B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are
returned to the obligor within 30 calendar days of
full repayment of the related mortgage loans, or such
other number of days specified in the transaction
agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments,
provided that such support has been received by the
servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the
transaction agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any
payment to be made on behalf of an obligor are paid
from the servicer's funds and not charged to the
obligor, unless the late payment was due to the
obligor's error or omission.
------------------------------------------------------------------------------------------------------------
E-4
------------------------------------------------------------------------------------------------------------
Applicable
Servicing Criteria Servicing Criteria
------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of
days specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts
are recognized and recorded in accordance with the
transaction agreements.
------------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified
in Item 1114(a)(1) through (3) or Item 1115 of
Regulation AB, is maintained as set forth in the
transaction agreements.
------------------------------------------------------------------------------------------------------------
Indymac Bank, F.S.B.,
[SUBSERVICER]
Date:____________________________________________________
By: _____________________________________________________
Name:
Title:
E-5
EXECUTION COPY
INDYMAC BANK, F.S.B.,
as Seller
and
XXXXXXX XXXXX MORTGAGE COMPANY,
as Purchaser
----------------------
SECOND AMENDED AND RESTATED
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
dated as of March 1, 2006
------------------------
Fixed and Adjustable Rate First and Second Lien Residential Mortgage Loans
(SERVICING RETAINED)
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
ARTICLE II
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Books and Records; Transfers of Mortgage Loans...............................................13
Section 2.02 Due Diligence by the Purchaser...............................................................13
Section 2.03 Identification of Mortgage Loan Package......................................................14
Section 2.04 Credit Document Deficiencies Identified During Due Diligence.................................14
Section 2.05 Delivery of Collateral Files.................................................................14
Section 2.06 Purchase Confirmation........................................................................16
Section 2.07 Closing......................................................................................16
Section 2.08 Payment of the Purchase Proceeds.............................................................16
Section 2.09 Entitlement to Payments on the Mortgage Loans................................................17
Section 2.10 Payment of Costs and Expenses................................................................17
Section 2.11 MERS Mortgage Loans and the MERS System......................................................17
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting Indymac............................................18
Section 3.02 Representations and Warranties Regarding Individual Mortgage Loans...........................20
Section 3.03 Remedies for Breach of Representations and Warranties........................................31
Section 3.04 Accrual of Cause of Action...................................................................33
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Indymac to Act as Servicer...................................................................33
ARTICLE V
COVENANTS BY INDYMAC
Section 5.01 Indemnification by Indymac...................................................................33
Section 5.02 [Reserved]...................................................................................33
Section 5.03 Merger or Consolidation of Indymac...........................................................34
Section 5.04 Limitation on Liability of Indymac and Others................................................34
Section 5.05 No Transfer of Servicing.....................................................................34
ARTICLE VI
MISCELLANEOUS
Section 6.01 Notices......................................................................................34
Section 6.02 Sale Treatment...............................................................................34
Section 6.03 Exhibits.....................................................................................34
Section 6.04 General Interpretive Principles..............................................................34
Section 6.05 Reproduction of Documents....................................................................34
Section 6.06 Further Agreements...........................................................................34
Section 6.07 Assignment of Mortgage Loans by the Purchaser; Securitization Transactions...................34
Section 6.08 Conflicts between Transaction Documents......................................................34
Section 6.09 Governing Law................................................................................34
Section 6.10 Severability Clause..........................................................................34
Section 6.11 Successors and Assigns.......................................................................34
Section 6.12 Relationship of Parties......................................................................34
Section 6.13 Solicitation of Mortgagor....................................................................34
Section 6.14 Confidentiality..............................................................................34
Section 6.15 Entire Agreement.............................................................................34
ARTICLE VII
COMPLIANCE WITH REGULATION AB
Section 7.01 Intent of the Parties; Reasonableness........................................................34
Section 7.02 Additional Representations and Warranties of Indymac.........................................34
Section 7.03 Information to Be Provided by Indymac........................................................34
Section 7.04 Indemnification; Remedies....................................................................34
EXHIBITS
Exhibit A Schedule of Collateral Documents A-1
Exhibit B Form of Purchase Confirmation X-0
Xxxxxxx X Xxxxxxxx X-0
Xxxxxxx X Form of Trade Confirmation D-1
Exhibit E Mortgage File E-1
-2-
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
This Second Amended and Restated Master Mortgage Loan
Purchase Agreement, dated as of March 1, 2006 (the "Agreement"), between
IndyMac Bank, F.S.B. having an address at 0000 Xxxx Xxxxxxxx Xxxxxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000 ("Indymac"), and Xxxxxxx Sachs Mortgage Company,
having an address At 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Purchaser").
R E C I T A L S
The Purchaser and Indymac are parties to that certain
Amended and Restated Master Mortgage Loan Purchase Agreement, dated as of
November 1, 2005, as amended (the "Original Purchase Agreement"), pursuant to
which, from time to time, the Purchaser has agreed to purchase from Indymac,
and, from time to time, Indymac has agreed to sell to the Purchaser all of
Indymac's right, title and interest, excluding servicing rights, in and to
those certain mortgage loans identified in a Purchase Confirmation (as defined
below) executed by Indymac and the Purchaser.
At the present time, the Purchaser and Indymac desire to
amend the Original Purchase Agreement to make certain modifications as set
forth herein with respect to all Mortgage Loans acquired pursuant to this
Agreement or the Original Purchase Agreement.
In consideration of the promises and mutual agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Indymac and the Purchaser agree
as follows:
ARTICLE I
DEFINITIONS
Unless the context requires otherwise, all capitalized terms
used herein shall have the meanings assigned to such terms in this Article I
unless defined elsewhere herein. Any capitalized term used or defined in a
Purchase Confirmation that conflicts with the corresponding definition set
forth herein shall supersede such term.
Adjustable Rate Mortgage Loan: Any Mortgage Loan in which
the related Mortgage Note contains a provision whereby the Mortgage Interest
Rate is adjusted from time to time in accordance with the terms of such
Mortgage Note.
Agency: Either Xxxxxx Xxx or Xxxxxxx Mac.
Agreement: This Master Mortgage Loan Purchase Agreement,
including all exhibits and supplements hereto, and all amendments hereof.
Applicable Law: All provisions of statutes, rules and
regulations, interpretations and orders of governmental bodies or regulatory
agencies applicable to a Person, and all orders
and decrees of all courts and arbitrators in proceedings or actions in which
the Person in question is a party.
Appraised Value: The value of the related Mortgaged Property
as set forth in an appraisal made in connection with the origination of a
Mortgage Loan or the sale price of the related Mortgaged Property if the
proceeds of such Mortgage Loan were used to purchase such Mortgaged Property,
whichever is less; provided, however, that in the case of a Refinanced
Mortgage Loan, such value of the Mortgaged Property is based solely upon the
value determined by an appraisal made for the originator of such Refinanced
Mortgage Loan at the time of origination of such Refinanced Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient
under the laws of the jurisdiction wherein the related Mortgaged Property is
located to reflect the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan wherein the
Mortgage Note matures prior to full amortization and requires a final and
accelerated payment of principal.
Business Day: Any day other than (i) a Saturday or Sunday,
or (ii) a day on which banking and savings and loan institutions in either the
State of California or the State of New York are authorized or obligated by
law or executive order to be closed.
Closing: The consummation of the sale and purchase of each
Mortgage Loan Package.
Closing Date: The date on which the purchase and sale of the
Mortgage Loans constituting a Mortgage Loan Package is consummated, as set
forth in the Trade Confirmation or Purchase Confirmation.
Code: The Internal Revenue Code of 1986, as it may be
amended from time to time or any successor statute thereto, and applicable
U.S. Department of the Treasury regulations issued pursuant thereto.
Collateral Documents: The collateral documents pertaining to
each Mortgage Loan as set forth in Exhibit A hereto.
Collateral File: With respect to each Mortgage Loan, a file
containing each of the Collateral Documents.
Combined Loan to Value Ratio: As of any date and as to any
Mortgage Loan, the ratio, expressed as a percentage, of the (a) sum of (i) the
Stated Principal Balance (or the original principal balance, if so indicated)
of such Mortgage Loan and (ii) the Stated Principal Balance (or the original
principal balance, if so indicated) as of such date of any mortgage loan or
mortgage loans that are senior or equal in priority to the Mortgage Loan and
which are secured by the same Mortgaged Property to (b) the Appraised Value of
the related Mortgaged Property.
Commission: The United States Securities and Exchange
Commission.
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Condemnation Proceeds: All awards or settlements in respect
of a taking of an entire Mortgaged Property by exercise of the power of
eminent domain or condemnation.
Cooperative Corporation: The entity that holds title (fee or
an acceptable leasehold estate) to the real property and improvements
constituting the Cooperative Property and which governs the Cooperative
Property, which Cooperative Corporation must qualify as a Cooperative Housing
Corporation under Section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares
and a Proprietary Lease.
Cooperative Property: The real property and improvements
owned by the Cooperative Corporation, including the allocation of individual
dwelling units to the holders of the Coop Shares of the Cooperative
Corporation.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a
Cooperative Property.
Covered Loan: A Mortgage Loan categorized as Covered
pursuant to Appendix E of Standard & Poor's Glossary.
Credit File: The file retained by Indymac that includes the
mortgage loan documents pertaining to a Mortgage Loan including copies of the
Collateral Documents together with the credit documentation relating to the
origination of such Mortgage Loan, which Credit File may be maintained by
Indymac on microfilm or any other comparable medium.
Custodial Account: The account or accounts created and
maintained pursuant to Section 4.4 of the Servicing Agreement, each of which
shall be an Eligible Account.
Custodial Agreement: The agreement, that governs the
temporary retention of the Collateral Files by the Custodian with respect to a
Closing Date.
Custodian: Deutsche Bank Trust Company Americas, its
successor in interest or assign, or such other custodian that may be
designated by the Purchaser from time to time.
Cut-off Date: The first day of the month in which the
related Closing Date occurs or such other date as may be set forth in the
related Trade Confirmation or Purchase Confirmation.
Cut-off Date Balance: The aggregate scheduled unpaid
principal balance of the Mortgage Loans in a Mortgage Loan Package as of the
Cut-off Date, after application of (i) scheduled payments of principal due on
such Mortgage Loans on or before such Cut-off Date, whether or not collected,
and (ii) any Principal Prepayments received from the Mortgagor prior to the
Cut-off Date.
Deemed Material Breach Representation: Each representation
and warranty identified as such in Subsection 3.02.
-3-
Determination Date: The Business Day immediately preceding
the related Remittance Date.
Due Date: The first day of the month on which the Monthly
Payment is due on a Mortgage Loan, exclusive of any days of grace.
Eligible Account: An account or accounts (i) maintained with
a federal or state chartered depository institution the short term debt
obligations of which are rated by a nationally recognized statistical rating
agency in its highest rating categories at the time of any deposit therein and
(ii) the deposits of which are insured up to the maximum permitted by the
FDIC.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 4.6 of the Servicing Agreement, each of which
shall be an Eligible Account.
Escrow Payments: The amounts constituting ground rents,
taxes, assessments, water rates, mortgage insurance premiums, fire and hazard
insurance premiums, flood insurance premiums, and other payments required to
be escrowed by the Mortgagor with the Mortgagee pursuant to any Mortgage Loan.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 7.1 of the Servicing Agreement.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
Xxxxxx Xxx: The Federal National Mortgage Association or any
successor organization.
First Lien Mortgage Loan: Any Mortgage Loan secured by a
first lien on the related Mortgaged Property.
Fixed Rate Mortgage Loan: Any Mortgage Loan wherein the
Mortgage Interest Rate set forth in the Mortgage Note is fixed for the term of
such Mortgage Loan.
FIRREA: The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as amended and in effect from time to time.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation or
any successor organization.
Funding Deadline: With respect to each Closing Date, one
o'clock (1:00) p.m. New York time.
Gross Margin: With respect to each Adjustable Rate Mortgage
Loan, the fixed percentage amount set forth in the related Mortgage Note,
which amount is added to the index in accordance with the terms of the related
Mortgage Note to determine on each Interest Adjustment Date, the Mortgage
Interest Rate for such Mortgage Loan.
-4-
High Cost Loan: A Mortgage Loan covered by the Home
Ownership and Equity Protection Act of 1994, (b) classified as a "high cost
home," "threshold," "covered," (excluding New Jersey "Covered Home Loans" as
that term was defined in clause (1) of the definition of that term in the New
Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 6, 2004), "high risk home," "predatory" or similar
loan under any other applicable state, federal or local law (or a similarly
classified loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage
loans having high interest rates, points and/or fees) or (c) a Mortgage Loan
categorized as High Cost pursuant to Appendix E of Standard & Poor's Glossary.
For avoidance of doubt, the parties agree that this definition shall apply to
any law regardless of whether such law is presently, or in the future becomes,
the subject of judicial review or litigation.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant
to Appendix E of Standard & Poor's Glossary.
HUD: The Department of Housing and Urban Development or any
federal agency or official thereof which may from time to time succeed to the
functions thereof.
Index: With respect to any Adjustable Rate Mortgage Loan on
each Interest Adjustment Date the applicable index as set forth in the related
Mortgage Note.
Indymac: IndyMac Bank, F.S.B., or any successor or assign to
Indymac under this Agreement as provided herein.
Indymac Information: As defined in Section 6.07(c).
Interest Adjustment Date: With respect to an Adjustable Rate
Mortgage Loan, the date on which an adjustment to the Mortgage Interest Rate
on a Mortgage Note becomes effective.
Lifetime Rate Cap: With respect to each Adjustable Rate
Mortgage Loan, the absolute maximum Mortgage Interest Rate payable, above
which the Mortgage Interest Rate shall not be adjusted, as set forth in the
related Mortgage Note and Mortgage Loan Schedule.
Liquidation Proceeds: Amounts, other than PMI Proceeds,
Condemnation Proceeds and Other Insurance Proceeds, received by Indymac in
connection with the liquidation of a defaulted Mortgage Loan through trustee's
sale, foreclosure sale or otherwise, other than amounts received following the
acquisition of an REO Property pursuant to Section 4.13.
LPMI Fee: The portion of the Mortgage Interest Rate relating
to an LPMI Loan, which is set forth on the related Mortgage Loan Schedule, to
be retained by Indymac to pay the premium due on the PMI Policy with respect
to such LPMI Loan.
LPMI Loan: Any Mortgage Loan with respect to which Indymac
is responsible for paying the premium due on the related PMI Policy with the
proceeds generated by the LPMI Fee relating to such Mortgage Loan, as set
forth on the related Mortgage Loan Schedule.
-5-
LTV: With respect to any Mortgage Loan, the ratio (expressed
as a percentage) of the Stated Principal Balance (or the original principal
balance, if so indicated) of such Mortgage Loan as of the date of
determination to the Appraised Value of the related Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc. or any
successor or assign thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS
on the MERS System.
MERS System: The electronic system of recording transfers of
mortgages maintained by MERS.
MIC: A mortgage insurance certificate issued by HUD.
Missing Credit Documents: As defined in Section 2.04 hereof.
Monthly Payment: The scheduled monthly payment of principal
and interest on a Mortgage Loan.
Mortgage: With respect to a Mortgage Loan that is not a
Cooperative Loan, the mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first or second lien, on an unsubordinated
estate in fee simple in real property securing the Mortgage Note; except that
with respect to real property located in jurisdictions in which the use of
leasehold estates for residential properties is a widely-accepted practice,
the mortgage, deed of trust or other instrument securing the Mortgage Note may
secure and create a first or second lien, upon a leasehold estate of the
Mortgagor. With respect to a Cooperative Loan, the security agreement creating
a security interest in the stock allocated to a dwelling unit in the
residential cooperative housing corporation that was pledged to secure such
Cooperative Loan and the related Cooperative Lease.
Mortgage File: With respect to any Mortgage Loan, the items
listed in Exhibit E hereto and any additional documents required to be added
to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: The annual rate at which interest
accrues on any Mortgage Loan and, with respect to an Adjustable Rate Mortgage
Loan, as adjusted from time to time in accordance with the provisions of the
related Mortgage Note.
Mortgage Loan: Any mortgage loan that is sold pursuant to
this Agreement, as evidenced by such mortgage loan's inclusion on the related
Mortgage Loan Schedule, which mortgage loan includes the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, PMI
Proceeds (if applicable), Other Insurance Proceeds, REO Disposition proceeds,
and all other rights, benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan, excluding the servicing rights relating
thereto. Unless the context requires otherwise, any reference to the Mortgage
Loans in this Agreement shall refer to the Mortgage Loans constituting a
Mortgage Loan Package.
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Mortgage Loan Package: The Mortgage Loans sold to the
Purchaser pursuant to a Purchase Confirmation.
Mortgage Loan Remittance Rate: With respect to each Mortgage
Loan, the interest rate payable to the Purchaser on each Remittance Date which
shall equal the Mortgage Interest Rate less the Servicing Fee and the LPMI
Fee, if applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed
hereto as Exhibit A, such schedule setting forth the following information
with respect to each Mortgage Loan: (1) the Seller's Mortgage Loan number; (2)
the address, city, state and zip code of the Mortgaged Property (or, in the
case of each Co-op Loan, of the related Cooperative Unit); (3) a code
indicating whether the Mortgagor is self-employed; (4) a code indicating
whether the Mortgaged Property is owner-occupied, investment property or a
second home; (5) a code indicating whether the Mortgaged Property is a single
family residence, two-family residence, three-family residence, four family
residence, condominium, manufactured housing, mixed-use property, raw land and
other non-residential properties, planned unit development or cooperative
stock in a cooperative housing corporation; (6) the purpose of the Mortgage
Loan; (7) the type of Mortgage Loan (i.e., fixed rate, first lien, second lien
or adjustable rate mortgage loan); (8) the Mortgage Interest Rate at
origination; (9) the current Mortgage Interest Rate; (10) whether the Mortgage
Loan has Monthly Payments that are interest only for a period of time; (11)
the Servicing Fee Rate; (12) the current Monthly Payment; (13) the original
term to maturity; (14) the remaining term to maturity; (15) the principal
balance of the Mortgage Loan as of the Cut-off Date after deduction of
payments of principal due on or before the Cut-off Date whether or not
collected; (16) the LTV and CLTV, each at origination and if the First Lien
Mortgage Loan has a second lien, the combined LTV at origination; (17) the
actual principal balance of the Mortgage Loan as of the Cut-off Date; (18)
social security number of the Mortgagor; (19) a code indicating whether the
Mortgage Loan has negative amortization and the maximum amount of such
negative amortization; (20) a code indicating whether the Mortgage Loan had a
second lien at origination; (21) if the Mortgage Loan has a second lien,
combined loan balance as of the Cut-off Date; (22) a code indicating whether
the Mortgaged Property is a leasehold estate; (23) the due date of the
Mortgage Loan; (24) whether the Mortgage Loan is insured by a Primary Mortgage
Insurance Policy and the name of the insurer; (25) the certificate number of
the Primary Mortgage Insurance Policy; (26) the amount of coverage of the
Primary Mortgage Insurance Policy; (27) the type of appraisal; (28) a code
indicating whether the Mortgage Loan is a MERS Mortgage Loan; (29) a code
indicating whether the Mortgage Loan is subject to a prepay penalty and the
terms of such prepayment penalty; (30) documentation type (including asset and
income type); (31) first payment date; (32) the schedule of the payment
delinquencies in the prior 12 months and (33) FICO score. With respect to any
Adjustable Rate Mortgage: (a) the Gross Margin; (b) the Periodic Rate Cap; (c)
the Lifetime Rate Cap; (d) the first Interest Adjustment Date cap and the
Interest Adjustment Date frequency; (e) the minimum Mortgage Interest Rate;
(f) the first Interest Adjustment Date immediately following the Cut-off Date;
and (g) the Index, including the methodology for rounding (e.g. rounded
upward, if necessary, to the next nearest ten thousandth (.0001)) and the
applicable time frame for determining the Index.
Mortgage Note: The note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage.
-7-
Mortgaged Property: With respect to a Mortgage Loan that is
not a Cooperative Loan, the underlying real property securing repayment of a
Mortgage Note, consisting of a single parcel of real estate considered to be
real estate under the laws of the State in which such real property is
located, which may include condominium units and planned unit developments,
improved by a residential dwelling; except that with respect to real property
located in jurisdictions in which the use of leasehold estates for residential
properties is a widely-accepted practice, a leasehold estate of the Mortgagor,
the term of which is equal to or longer than the term of the Mortgage. With
respect to a Cooperative Loan, the stock allocated to a dwelling unit in the
residential cooperative housing corporation that was pledged to secure such
Cooperative Loan and the related Cooperative Lease.
Mortgagee: The mortgagee or beneficiary named in the
Mortgage and the successors and assigns of such mortgagee or beneficiary.
Mortgagor: The obligor on a Mortgage Note and their
successors in title to the Mortgaged Property.
Opinion of Counsel: A written opinion of counsel, who may be
an employee of the party on behalf of whom the opinion is being given,
reasonably acceptable to the Purchaser.
Other Insurance Proceeds: Proceeds of any title policy,
hazard policy, pool policy or other insurance policy covering a Mortgage Loan,
other than the PMI Policy, if any, to the extent such proceeds are not to be
applied to the restoration of the related Mortgaged Property or released to
the Mortgagor in accordance with the procedures that Indymac would follow in
servicing mortgage loans held for its own account.
Periodic Rate Cap: With respect to each Adjustable Rate
Mortgage Loan, the provision of each Mortgage Note which provides for an
absolute maximum amount by which the Mortgage Interest Rate therein may
increase or decrease on an Adjustment Date above or below the Mortgage
Interest Rate previously in effect, equal to the rate set forth on the
Mortgage Loan Schedule per adjustment.
Person: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability
corporation, unincorporated organization or government or any agency or
political subdivision thereof.
PMI Policy: A policy of private mortgage guaranty insurance
relating to a Mortgage Loan and issued by a Qualified Insurer.
PMI Proceeds: Proceeds of any PMI Policy.
Preliminary Mortgage Loan Package: The mortgage loans
identified or described in a Trade Confirmation, which, subject to the
Purchaser's due diligence as contemplated in Section 2.02, are intended to be
sold under this Agreement as a Mortgage Loan Package.
Preliminary Mortgage Loans: The mortgage loans constituting
a Preliminary Mortgage Loan Package.
-8-
Principal Prepayment: Any payment or other recovery of
principal on a Mortgage Loan which is received in advance of its scheduled Due
Date, excluding any prepayment penalty or premium thereon (unless the Purchase
Confirmation provides otherwise), which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Proprietary Lease: With respect to any Cooperative Unit, a
lease or occupancy agreement between a Cooperative Corporation and a holder of
related Coop Shares.
Purchase Confirmation: A letter agreement, substantially in
the form of Exhibit B hereto, executed by Indymac and the Purchaser in
connection with the purchase and sale of each Mortgage Loan Package, which
sets forth the terms relating thereto including a description of the related
Mortgage Loans (including the Mortgage Loan Schedule), the purchase price for
such Mortgage Loans, the Closing Date and the Servicing Fee Rate.
Purchase Proceeds: The amount paid on the related Closing
Date by the Purchaser to Indymac in exchange for the Mortgage Loan Package
purchased on such Closing Date as set forth in the applicable Purchase
Confirmation.
Purchaser: The Person identified as the "Purchaser" in the
preamble to this Agreement or its successor in interest or any successor or
assign to the Purchaser under this Agreement as herein provided. Any reference
to "Purchaser" as used herein shall be deemed to include any designee of the
Purchaser, so long as such designation was made in accordance with the
limitations set forth in Section 6.07.
Qualified Correspondent: Any Person from which the Seller
purchased Mortgage Loans, provided that the following conditions are
satisfied: (i) such Mortgage Loans were originated pursuant to an agreement
between the Seller and such Person that contemplated that such Person would
underwrite mortgage loans from time to time, for sale to the Seller, in
accordance with underwriting guidelines designated by the Seller ("Designated
Guidelines") or guidelines that do not vary materially from such Designated
Guidelines; (ii) such Mortgage Loans were in fact underwritten as described in
clause (i) above and were acquired by the Seller within one hundred eighty
(180) days after origination; (iii) either (x) the Designated Guidelines were,
at the time such Mortgage Loans were originated, used by the Seller in
origination of mortgage loans of the same type as the Mortgage Loans for the
Seller's own account or (y) the Designated Guidelines were, at the time such
Mortgage Loans were underwritten, designated by the Seller on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Seller; and (iv) the Seller employed, at the time such Mortgage Loans were
acquired by the Seller, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through particular
channels) designed to ensure that Persons from which it purchased mortgage
loans properly applied the underwriting criteria designated by the Seller.
Qualification Defect: With respect to a Mortgage Loan, (a) a
defective document in the Credit File or the Mortgage File, (b) the absence of
a document in the Credit File or Mortgage File, or (c) the breach of any
representation, warranty or covenant with respect
-9-
to the Mortgage Loan made by Indymac, but, in each case, only if the affected
Mortgage Loan would cease to qualify as a "qualified mortgage" for purposes of
the REMIC provisions.
Qualified Insurer: An insurance company duly qualified as
such under the laws of the states in which the Mortgaged Properties are
located, duly authorized and licensed in such states to transact the
applicable insurance business and to write the insurance provided, which
insurer is approved in such capacity by an Agency.
Qualified Substitute Mortgage Loan: A mortgage loan that
must, on the date of such substitution, (i) have an unpaid principal balance,
after deduction of all scheduled payments due in the month of substitution (or
if more than one (1) mortgage loan is being substituted, an aggregate
principal balance), not in excess of the unpaid principal balance of the
repurchased Mortgage Loan (the amount of any shortfall will be deposited in
the Custodial Account by Indymac in the month of substitution); (ii) have a
Mortgage Interest Rate not less than, and not more than 1% greater than, the
Mortgage Interest Rate of the repurchased Mortgage Loan; (iii) have a
remaining term to maturity not greater than, and not more than one year less
than, the maturity date of the repurchased Mortgage Loan; (iv) comply with
each representation and warranty (respecting individual Mortgage Loans) set
forth in Section 3.02 hereof; (v) shall be the same type of Mortgage Loan
(i.e., an Adjustable Rate Mortgage Loan or a Fixed Rate Mortgage Loan).
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Agreements: The agreement or agreements
entered into by the Seller and the Purchaser and/or certain third parties on
the Reconstitution Date or Dates with respect to any or all of the Mortgage
Loans sold hereunder, in connection with a Whole Loan Transfer or a
Securitization Transaction pursuant to Section 6.07, including, but not
limited to, a seller's warranties and servicing agreement with respect to a
Whole Loan Transfer, and a pooling and servicing agreement and/or
seller/servicer agreements and related custodial/trust agreement and documents
with respect to a Securitization Transaction.
Reconstitution Date: The date on which any or all of the
Mortgage Loans serviced under this Agreement shall be removed from this
Agreement and reconstituted as part of a Securitization Transaction pursuant
to Section 6.07 hereof. The Reconstitution Date shall be such date which the
Purchaser shall designate in writing.
Refinanced Mortgage Loan: A Mortgage Loan the proceeds of
which were not used to purchase the related Mortgaged Property.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
REMIC: A "real estate mortgage investment conduit" within
the meaning of Section 860D of the Code.
-10-
Remittance Date: The eighteenth (18th) day of any month,
beginning with the month next following the month in which the related Cut-off
Date occurs, or if such eighteenth (18th) day is not a Business Day, the first
Business Day immediately following.
REO Disposition: The final sale by Indymac of any REO
Property or the transfer of the management of such REO Property to the
Purchaser as set forth in Section 4.13.
REO Property: A Mortgaged Property acquired by Indymac on
behalf of the Purchaser as described in Section 4.13.
Repurchase Price: With respect to any Mortgage Loan, a price
equal to (i) the Stated Principal Balance of the Mortgage Loan as of the date
of repurchase plus (ii) interest on such Stated Principal Balance at the
Mortgage Loan Remittance Rate from the last date through which interest has
been paid and distributed to the Purchaser to the last day of the month in
which the repurchase occurs, less amounts received or advanced in respect of
such repurchased Mortgage Loan which such amounts are being held in the
Custodial Account for distribution in the month of repurchase plus (iii) with
respect to any Mortgage Loan included in a Securitization Transaction, damages
incurred by the Purchaser or its assignee including the trust in any
securitization in connection with any violation by such Mortgage Loan of any
predatory or abusive lending law provided, however, that if at the time of
repurchase the Servicer is not the Seller or an affiliate of the Seller, the
amount described in clause (ii) shall be computed at the sum of (a) the
Mortgage Loan Remittance Rate and (b) the Servicing Fee Rate.
Second Lien Mortgage Loan: A Mortgage Loan secured by a
second Mortgage on the related Property.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either
(1) a sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or
(2) an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Security Agreement: With respect to any Cooperative Loan,
the agreement between the owner of the related Coop Shares and the originator
of the related Mortgage Note that defines the terms of the security interest
in such Coop Shares and the related Proprietary Lease.
Seller Information: As defined in Section 7.04(a).
Servicing Agreement: The agreement dated as of November 1,
2005 and signed by the Purchaser and Indymac with respect to the
administration and servicing of the Mortgage Loans.
-11-
Servicing Fee: With respect to each Mortgage Loan, the
amount of the annual fee the Purchaser shall pay to Indymac, which shall, for
a period of one full month, be equal to one-twelfth of the product of (i) the
Servicing Fee Rate and (ii) the Stated Principal Balance of such Mortgage
Loan. Such fee shall be payable monthly, computed on the basis of the same
principal amount and period respecting which any related interest payment on a
Mortgage Loan is computed. The obligation of the Purchaser to pay the
Servicing Fee is limited to, and the Servicing Fee is payable solely from, the
interest portion of such Monthly Payment collected by Indymac, or as otherwise
provided herein. Subject to the foregoing, and with respect to each Mortgage
Loan, Indymac shall be entitled to receive its Servicing Fee through the
disposition of any related REO Property and the Servicing Fee payable with
respect to any REO Property shall be based on the Stated Principal Balance of
the related Mortgage Loan at the time of foreclosure.
Servicing Fee Rate: With respect to any Mortgage Loan, the
rate per annum set forth in the applicable Trade Confirmation or Purchase
Confirmation.
Sponsor: The sponsor, as such term is defined in Regulation
AB, with respect to any Securitization Transaction.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time.
Stated Principal Balance: With respect to each Mortgage Loan
as of any date of determination: (i) the unpaid principal balance of the
Mortgage Loan at the Cut-off Date after giving effect to payments of principal
due on or before such date, whether or not received, minus (ii) all amounts
previously distributed to the Purchaser with respect to the related Mortgage
Loan representing payments or recoveries of principal or advances in lieu
thereof.
Static Pool Information: Static pool information as
described in Item 1105(a)(1)-(3) and 1105(c) of Regulation AB.
Third Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Seller.
Trade Confirmation: A letter agreement substantially in the
form of Exhibit D hereto executed by Indymac and the Purchaser prior to the
applicable Closing Date confirming the terms of a prospective purchase and
sale of a Mortgage Loan Package.
Transaction Documents: With respect to any Mortgage Loan,
the related Trade Confirmation, the related Purchase Confirmation, the
Custodial Agreement, the Servicing Agreement and this Agreement.
Updated LTV: With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the date of
determination divided by the value of the related Mortgaged Property as
determined by a recent appraisal of the Mortgaged Property.
Whole Loan Transfer: Any sale or transfer of some or all of
the Mortgage Loans, other than a Securitization Transaction.
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ARTICLE II
PRE-CLOSING AND CLOSING PROCEDURES
Section 2.01 Books and Records; Transfers of Mortgage Loans.
From and after the sale of the Mortgage Loans to the
Purchaser, all rights arising out of the Mortgage Loans including but not
limited to all funds received on or in connection with the Mortgage Loans on
account of interest and principal due after the Cut-off Date, shall be held by
Indymac in trust for the benefit of the Purchaser as owner of the Mortgage
Loans, and Indymac shall retain record title to the related Mortgage Loans for
the sole purpose of facilitating the servicing and the supervision of the
servicing of the Mortgage Loans.
The sale of each Mortgage Loan shall be reflected on
Indymac's balance sheet and other financial statements as a sale of assets by
Indymac. Indymac shall be responsible for maintaining, and shall maintain, a
complete set of books and records for each Mortgage Loan which shall be marked
clearly to reflect the ownership of each Mortgage Loan by the Purchaser. In
particular, Indymac shall maintain in its possession, available for inspection
by the Purchaser, or its designee, and shall deliver to the Purchaser upon
demand, evidence of compliance with all federal, state and local laws, rules
and regulations, and requirements of Xxxxxx Xxx or Xxxxxxx Mac, including but
not limited to documentation as to the method used in determining the
applicability of the provisions of the National Flood Insurance Act of 1968,
as amended, to the Mortgaged Property, documentation evidencing insurance
coverage and eligibility of any condominium project under the Underwriting
Guidelines, and periodic inspection reports as required by Section 3.15 of the
Servicing Agreement. To the extent that original documents are not required
for purposes of realization of Liquidation Proceeds or Insurance Proceeds,
documents maintained by Indymac may be in the form of microfilm or microfiche
or such other reliable means of recreating original documents, including but
not limited to, optical imagery techniques so long as Indymac complies with
the requirements of the Xxxxxx Xxx or Xxxxxxx Mac Selling and Servicing Guide,
as amended from time to time. Indymac shall indemnify the Purchaser and hold
it harmless against any damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and other costs and
expenses resulting from the unenforceability (as determined by a court of
competent jurisdiction) of any Mortgage Loan document recreated in the manner
described in the foregoing sentence against the applicable Mortgagor as a
result of such recreation or the absence of such original Mortgage Loan
document.
Section 2.02 Due Diligence by the Purchaser.
Review of Credit File and Mortgage File. At least 15 days
prior to the Closing Date, Indymac shall make available to the Purchaser the
Credit File and the Mortgage File for each Preliminary Mortgage Loan in the
related Preliminary Mortgage Loan Package and shall accommodate reasonable
requests by the Purchaser to provide personnel and documents as necessary to
facilitate the review. The Purchaser shall have the right to review the Credit
File and the Mortgage File for each such Preliminary Mortgage Loan, at
Indymac's offices or such other location agreed upon by the Purchaser and
Indymac, for the purpose of determining whether each Preliminary Mortgage Loan
conforms in all material respects to the applicable
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terms contained in the Transaction Documents, which determination shall be
made in the Purchaser's sole discretion; provided, further, that the
Purchaser, in its sole discretion, has the right to reject any Preliminary
Mortgage Loan if the original Mortgage Note for such Preliminary Mortgage Loan
is lost. In the event that the Purchaser rejects any Preliminary Mortgage Loan
based on such review, Indymac shall have the opportunity, at the discretion of
the Purchaser, to substitute replacement Preliminary Mortgage Loans satisfying
the requirements set forth above, and the Purchaser shall have the right to
review any such replacement Preliminary Mortgage Loan(s) in the manner
contemplated above. Such examination may be made by the Purchaser or its
designee, at its expense, at any reasonable time before the Closing Date. Such
underwriting by the Purchaser or its designee shall not impair or diminish the
rights of the Purchaser or any of its successors under this Agreement with
respect to a breach of the representations and warranties contained in this
Agreement, provided that the Purchaser and Indymac shall notify the other upon
discovery of any breach of the representations and warranties contained in
this Agreement. The fact that the Purchaser or its designee has conducted or
has failed to conduct any partial or complete examination of the Credit Files
and the Mortgage Files shall not affect the Purchaser's or any of its
successors' rights to demand repurchase or other relief or remedy provided for
in this Agreement, subject to the notification requirement of Section 3.03.
Section 2.03 Identification of Mortgage Loan Package.
At least three (3) Business Days prior to the Closing Date,
the Purchaser shall identify those Preliminary Mortgage Loans that the
Purchaser intends to be included in the Mortgage Loan Package. Section 2.04
Credit Document Deficiencies Identified During Due Diligence.
If, with respect to a Mortgage Loan Package, the related
Purchase Confirmation identifies any Mortgage Loan for which the related
Credit File or the Mortgage File is missing material documentation (as used
therein, the "Missing Credit Documents"), Indymac agrees to use its best
efforts to procure each such Missing Credit Document within sixty (60) days
following the related Closing Date. In the event of a default by a Mortgagor
or any material impairment of the Mortgaged Property, in either case directly
arising from a breach of Indymac's obligation to deliver the Missing Credit
Document within the time specified above, Indymac shall repurchase such
Mortgage Loan at the Repurchase Price.
Section 2.05 Delivery of Collateral Files.
Custodial Agreement. Indymac shall, no later than five (5)
Business Days prior to the related Closing Date, pursuant to the Custodial
Agreement deliver and release to the Custodian the Collateral File for each
Mortgage Loan in the Mortgage Loan Package and shall execute, and cause the
Custodian to execute, the Custodial Agreement. The Custodian has certified its
receipt of all such Collateral Documents required to be delivered pursuant to
the Custodial Agreement. Indymac will be responsible for the fees and expenses
with respect to the delivery and will be responsible for the fees and expenses
related to the recording of the initial Assignments of Mortgage (including any
fees and expenses related to any preparation and recording of any intervening
or prior assignments of the Mortgage Loans to Indymac or to any prior owners
of or mortgagees with respect to the Mortgage Loans) or Form UCC-3's for
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Cooperative Loans. The Purchaser will be responsible for the Custodian's fees
and expenses as set forth in the Custodial Agreement.
Indymac shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 3.1(c) or 5.1 of the
Servicing Agreement within two weeks of their execution, provided, however,
that Indymac shall provide the Custodian with a certified true copy of any
such document submitted for recordation within ten (10) days of its execution,
and shall provide the original of any document submitted for recordation or a
copy of such document certified by the appropriate public recording office to
be a true and complete copy of the original within 120 days of its submission
for recordation.
In the event the public recording office is delayed in
returning any original document, Indymac shall deliver to the Custodian within
240 days of its submission for recordation, a copy of such document and an
Officer's Certificate, which shall (i) identify the recorded document; (ii)
state that the recorded document has not been delivered to the Custodian due
solely to a delay by the public recording office, (iii) state the amount of
time generally required by the applicable recording office to record and
return a document submitted for recordation, and (iv) specify the date the
applicable recorded document will be delivered to the Custodian. The Company
will be required to deliver the document to the Custodian by the date
specified in (iv) above.
Notwithstanding the foregoing, if the originals or certified
copies required in this Section 2.05 are not delivered as required within 90
days following the Closing Date or as otherwise extended as set forth above,
the related Mortgage Loan shall, upon request of the Purchaser, be repurchased
by Indymac in accordance with Section 3.03 hereof; provided, however, that the
foregoing repurchase obligation shall not apply in the event Indymac cannot
deliver such items due to a delay caused by the recording office in the
applicable jurisdiction; provided that Indymac shall deliver instead a
recording receipt of such recording office or, if such recording receipt is
not available, an Officer's Certificate from Indymac confirming that such
documents have been accepted for recording. Any such document shall be
delivered to the Purchaser or its designee promptly upon receipt thereof from
the related recording office.
If Indymac, the Purchaser or the Custodian finds any
document or documents constituting a part of a Credit File or Mortgage File
pertaining to a Mortgage Loan to be defective (or missing) in any material
respect, and such defect or missing document materially and adversely affects
the value of the related Mortgage Loan or the interests of the Purchaser
therein, the party discovering such defect shall promptly so notify Indymac.
Indymac shall have a period of 90 days after receipt of such written notice
within which to correct or cure any such defect. Indymac hereby covenants and
agrees that, if any material defect cannot be corrected or cured, Indymac
will, upon the expiration of the applicable cure period described above,
repurchase the related Mortgage Loan in the manner set forth in Section 3.03;
provided, however, that with respect to any Mortgage Loan, if such defect
constitutes a Qualification Defect, any such repurchase must take place within
60 days of the date such defect is discovered.
Notwithstanding the foregoing, with respect to a Mortgage
Loan, if, at the end of such 90-day period, Indymac delivers an Officer's
Certificate to the Purchaser certifying that
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Indymac is using good faith efforts to correct or cure such defect and
identifying progress made, then the Purchaser shall grant Indymac an extension
to correct or cure such defect. The extension shall not extend beyond (1) if
the defect is a Qualification Defect, the date that is 60 days after the date
the defect is discovered, or, (2) if the defect is not a Qualification Defect
(as evidenced by an Opinion of Counsel), the date that is 30 days beyond the
original 90-day cure period. If the defect is not a Qualification Defect,
additional 30-day extensions may be obtained pursuant to the same procedure,
as long as Indymac demonstrates continued progress toward a correction or
cure; provided that no extension shall be granted beyond 180 days from the
date on which the Company received the original notice of the defect.
Notwithstanding the foregoing, with respect to a Mortgage
Loan, the failure of the Purchaser to notify Indymac of any defective or
missing document in a Credit File or Mortgage File within such 90-day period,
or the failure of the Purchaser to require Indymac to cure or repurchase the
related Mortgage Loan upon expiration of such 90-day period, shall not
constitute a waiver of its rights hereunder, including the rights with respect
to a Mortgage Loan, to require Indymac to repurchase the affected Mortgage
Loan and the right to indemnification pursuant to Section 3.03 hereof.
Section 2.06 Purchase Confirmation.
Upon confirmation with the Purchaser of a Mortgage Loan
Package, Indymac shall prepare and deliver to the Purchaser for execution the
related Purchase Confirmation, executed by an authorized signatory of Indymac.
Section 2.07 Closing.
The Closing of each Mortgage Loan Package shall take place
on the related Closing Date and shall be subject to the satisfaction of each
of the following conditions, unless otherwise waived by the prejudiced
party(ies):
(a) All of the representations and warranties of Indymac
under this Agreement shall be true and correct as of the Closing Date and no
event shall have occurred that, with notice or the passage of time, would
constitute a default under this Agreement;
(b) Both parties shall have executed and delivered the
related Purchase Confirmation, Trade Confirmation, Servicing Agreement and
Custodial Agreement;
(c) Indymac shall have delivered and released to the
Custodian all documents required pursuant to this Agreement and the Custodial
Agreement; and
(d) All other terms and conditions of this Agreement have
been complied with.
Section 2.08 Payment of the Purchase Proceeds.
Subject to the conditions set forth in Section 2.07, and in
consideration for the Mortgage Loan Package to be purchased by the Purchaser
on the related Closing Date, the Purchaser shall pay to Indymac on such
Closing Date the Purchase Proceeds by wire transfer of
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immediately available funds to the account designated by Indymac on or before
the Funding Deadline.
Section 2.09 Entitlement to Payments on the Mortgage Loans.
With respect to any Mortgage Loan purchased hereunder, the
Purchaser shall be entitled to (a) all scheduled principal due after the
related Cut-off Date; (b) all other recoveries of principal collected after
the related Cut-off Date, except for (i) recoveries of principal collected
after the Cut-off Date and prior to the Closing Date that are reflected in the
Mortgage Loan Schedule, and (ii) all scheduled payments of principal due on or
before the related Cut-off Date; and (c) all payments of interest on such
Mortgage Loan net of interest at the Servicing Fee Rate and the LPMI Fee, if
applicable (minus that portion of any such payment that is allocable to the
period prior to the related Cut-off Date) due after the Cut-off Date.
Section 2.10 Payment of Costs and Expenses.
The Purchaser and Indymac shall each bear its own costs and
expenses in connection with the purchase and sale of the Mortgage Loans
including any commissions due its sales personnel, the legal fees and expenses
of its attorneys and any due diligence expenses. Without limiting the
generality of the foregoing, any costs and expenses incurred in connection
with recording the Assignment of Mortgage or any subsequent assignment thereof
shall be paid for by the Purchaser.
Section 2.11 MERS Mortgage Loans and the MERS System.
(a) Notwithstanding anything contained in this Agreement to
the contrary, with respect to any MERS Mortgage Loan sold to the Purchaser by
Indymac pursuant to this Agreement, Indymac shall cause the registration of
such MERS Mortgage Loan to be changed on the MERS System to reflect the
Purchaser as the beneficial owner of such MERS Mortgage Loan. The foregoing
obligation of Indymac shall be in lieu of Indymac delivering to the Purchaser
an Assignment of Mortgage for such MERS Mortgage Loan. With respect to the
Mortgage and intervening assignments related to any MERS Mortgage Loan,
Indymac shall, in accordance with Section 2.05, provide the Purchaser with the
original Mortgage with evidence of registration with MERS and, as applicable,
the originals of all intervening assignments of the Mortgage with evidence of
recording thereon prior to the registration of the Mortgage Loan with the MERS
System.
(b) In connection with the MERS System, Indymac is hereby
authorized and empowered, in its own name, to register, or change the
registration of any MERS Mortgage Loan to effectuate such registration.
Further, Indymac is authorized to cause the removal of any MERS Mortgage Loan
from such registration, and to execute and deliver on behalf of itself and the
Purchaser, any and all instruments of assignment and comparable instruments
with respect to any registration and/or removal of such MERS Mortgage Loan on
or from the MERS System.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Representations and Warranties Respecting
Indymac.
Indymac represents, warrants and covenants to the Purchaser,
its successors and assigns that as of each Closing Date:
(a) Organization and Standing. Indymac is duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and is qualified and licensed to transact business in
and is in good standing under the laws of each state where each Mortgaged
Property is located to the extent necessary to ensure the enforceability of
each Mortgage Loan and the servicing of the Mortgage Loan in accordance with
the terms of this Agreement. The execution, delivery and performance of this
Agreement (including all instruments of transfer to be delivered pursuant to
this Agreement) by Indymac and the consummation of the transactions
contemplated hereby have been duly and validly authorized. This Agreement
evidences the valid, binding and enforceable obligation of Indymac; and all
requisite corporate action has been taken by Indymac to make this Agreement
valid and binding upon Indymac in accordance with its terms;
(b) Due Authority. Indymac has the full power and authority
to (i) perform and enter into and consummate all transactions contemplated by
this Agreement and (ii) to sell each Mortgage Loan;
(c) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of Indymac, which is in the business of selling and servicing loans,
and the transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by Indymac pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(d) No Conflict. Neither the acquisition or origination of
the Mortgage Loans by Indymac, the sale of the Mortgage Loans to the
Purchaser, the consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of Indymac's certificate of incorporation or by-laws or result in a
material breach of any legal restriction or any material agreement or
instrument to which Indymac is now a party or by which it is bound, or
constitute a material default or result in an acceleration under any of the
foregoing, or result in the violation of any material law, rule, regulation,
order, judgment or decree to which Indymac or its property is subject;
(e) Approved Seller. Indymac is an approved seller/servicer
for each Agency in good standing and is a mortgagee approved by the Secretary
of HUD. No event has occurred, including a change in insurance coverage, which
would make Indymac unable to comply with Xxxxxx Xxx, Xxxxxxx Mac or HUD
eligibility requirements. Furthermore, if at any time prior to the termination
of this Agreement, Indymac is unable to comply with any of the Xxxxxx Mae,
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Xxxxxxx Mac or HUD eligibility requirements, it shall immediately notify the
Purchaser that it is no longer an approved seller/servicer as defined in the
first sentence above;
(f) No Pending Litigation. There is no action, suit,
proceeding, investigation or litigation pending or, to Indymac's knowledge,
threatened, which either in any one instance or in the aggregate, if
determined adversely to Indymac would materially and adversely affect the sale
of the Mortgage Loans to the Purchaser, the ability of Indymac to service the
Mortgage Loans hereunder in accordance with the terms hereof, or Indymac's
ability to perform its obligations under this Agreement;
(g) No Consent Required. No consent, approval, authorization
or order of any court or governmental agency or body is required for the
execution, delivery and performance by Indymac, of or compliance by Indymac
with, this Agreement or the consummation of the transactions contemplated by
this Agreement, or if required, such consent, approval, authorization or order
has been obtained prior to the related Closing Date;
(h) Reasonable Servicing Fee. Indymac acknowledges and
agrees that the Servicing Fee represents reasonable compensation for
performing such services and that the entire Servicing Fee shall be treated by
Indymac, for accounting and tax purposes, as compensation for the servicing
and administration of the Mortgage Loans pursuant to this Agreement;
(i) Ability to Perform. Indymac does not believe, nor does
it have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement. Indymac is solvent and the sale of the
Mortgage Loans will not cause Indymac to become insolvent. The sale of the
Mortgage Loans is not undertaken to hinder, delay or defraud any of Indymac's
creditors;
(j) No Untrue Information. Neither this Agreement nor any
statement, report or other document prepared and furnished, or to be furnished
pursuant to this Agreement or in connection with the transactions contemplated
hereby, by Indymac contains any untrue statement of fact or omits to state a
fact necessary to make the statements contained therein not misleading;
(k) Sale Treatment. Indymac has determined that the
disposition of the Mortgage Loans pursuant to this Agreement will be afforded
sale treatment for accounting and tax purposes;
(l) Fair Credit Report Act. Indymac, in its capacity as
servicer for each Mortgage Loan, has fully furnished (or caused to be
furnished), in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (e.g., favorable
and unfavorable) on its borrower credit files to Equifax, Experian and Trans
Union Credit Information Company (three of the credit repositories) or their
successors and assigns, on a monthly basis;
(m) No Brokers' Fees. Indymac has not dealt with any broker,
investment banker, agent or other Person that may be entitled to any
commission or compensation in the connection with the sale of the Mortgage
Loans;
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(n) Fair Consideration. The consideration received by
Indymac upon the sale of the Mortgage Loans under this Agreement constitutes
fair consideration and reasonably equivalent value for the Mortgage Loans; and
(o) USA Patriot Act of 2001. Indymac has complied with all
applicable anti-money laundering laws and regulations, including without
limitation the USA Patriot Act of 2001 (collectively, the "Anti-Money
Laundering Laws"); Indymac has established an anti-money laundering compliance
program as required by the Anti-Money Laundering Laws, has conducted the
requisite due diligence in connection with the origination of each Mortgage
Loan for purposes of the Anti-Money Laundering Laws, including with respect to
the legitimacy of the applicable Mortgagor and the origin of the assets used
by the said Mortgagor to purchase the property in question, and maintains, and
will maintain, sufficient information to identify the applicable Mortgagor for
purposes of the Anti-Money Laundering Laws.
(p) Insured Depository Institution Representations. Indymac
is an "insured depository institution" as that term is defined in Section
1813(c)(2) of Title 12 of the United States Code, as amended, and accordingly,
Indymac makes the following additional representations and warranties:
(i) This Agreement between the Purchaser and Indymac
conforms to all applicable statutory and regulatory
requirements; and
(ii) This Agreement is (1) executed contemporaneously with
the agreement reached by the Purchaser and Indymac, (2)
approved by a specific corporate or banking association
resolution by the Seller's board of directors, which approval
shall be reflected in the minutes of said board, and (3) an
official record of Indymac. A copy of such resolution,
certified by a vice president or higher officer of the Indymac
has been provided to the Purchaser.
Section 3.02 Representations and Warranties Regarding
Individual Mortgage Loans.
With respect to each Mortgage Loan (unless otherwise
specified below), Indymac represents and warrants to the Purchaser, its
successors and assigns, as of the related Closing Date, that:
(a) Mortgage Loan Schedule. The information contained in the
Mortgage Loan Schedule is complete, true and correct in all material respects;
(b) No Delinquencies or Advances. All payments required to
be made and credited prior to the related Cut-off Date for such Mortgage Loan
under the terms of the Mortgage Note have been made; Indymac has not advanced
funds, or induced, solicited or knowingly received any advance of funds from a
party other than the owner of the Mortgaged Property subject to the Mortgage,
directly or indirectly, for the payment of any amount required by the Mortgage
Loan; and there has been no delinquency of more than thirty (30) days in any
payment by the Mortgagor thereunder during the last twelve (12) months;
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(c) Taxes, Assessments, Insurance Premiums and Other
Charges. There are no defaults by Indymac or any prior originator in complying
with the terms of the Mortgage and there are no delinquent taxes, ground
rents, water charges, sewer rents, assessments, insurance premiums, leasehold
payments, including assessments payable in future installments or other
outstanding charges affecting the related Mortgaged Property;
(d) No Modifications. The terms of the Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any respect,
except by written instruments that have been or will be recorded, if necessary
to protect the interests of the Purchaser, and that have been or will be
delivered to the Purchaser, all in accordance with this Agreement. The
substance of any such waiver, alteration or modification has been approved by
the primary mortgage guaranty insurer, if any, and by the title insurer, to
the extent required by the related policy and its terms are reflected on the
Mortgage Loan Schedule. No Mortgagor has been released, in whole or in part,
except in connection with an assumption agreement approved by the primary
mortgage insurer, if any, and the title insurer, to the extent required by the
policy, and which assumption agreement is part of the Collateral File and the
terms of which are reflected in the Mortgage Loan Schedule if executed prior
to the Closing Date;
(e) No Defenses. The Mortgage Note and the Mortgage are not
subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury, nor will the operation of any of the terms of
the Mortgage Note and the Mortgage, or the exercise of any right thereunder,
render the Mortgage unenforceable, in whole or in part, or subject to any
right of rescission, set-off, counterclaim or defense, including the defense
of usury, and no such right of rescission, set-off, counterclaim or defense
has been asserted with respect thereto;
(f) Hazard and Flood Insurance. All buildings and other
customarily insured improvements upon the Mortgaged Property are insured in an
amount which is not less than the lesser of (i) the maximum insurable value of
the Mortgaged Property and (ii) the greater of (a) the outstanding principal
balance of the Mortgage Loan, and (b) an amount that would prevent the
Mortgagor from becoming a co-insurer, by an insurer acceptable to an Agency
against loss by fire, hazards of extended coverage and such other hazards as
are customary in the area where the Mortgaged Property is located, and such
insurer is licensed to do business in the state where the Mortgaged Property
is located. If the Mortgaged Property is a condominium unit, it is included
under the coverage afforded by a blanket policy. All such insurance policies
contain a standard mortgagee clause naming Indymac, its successors and assigns
as mortgagee, and all premiums thereon have been paid. If, upon the
origination of the Mortgage Loan, the Mortgaged Property was, or was
subsequently deemed to be, in an area identified in the Federal Register by
the Federal Emergency Management Agency as having special flood hazards (and
such flood insurance has been made available), a flood insurance policy that
meets the requirements of the current guidelines of the Federal Insurance
Administration (or any successor thereto) and conforms to the requirements of
an Agency is in effect. The Mortgage obligates the Mortgagor thereunder to
maintain all such insurance at the Mortgagor's expense and, upon the failure
of the Mortgagor to do so, the holder of the Mortgage is authorized to
maintain such insurance at the Mortgagor's expense and to seek reimbursement
therefor from the Mortgagor;
(g) Compliance with Applicable Law. All applicable local,
state and federal laws including without limitation usury, truth in lending,
real estate settlement procedures,
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consumer credit protection, equal credit opportunity, fair housing, predatory
and abusive lending and disclosure laws applicable to the origination and
servicing of the Mortgage Loan have been complied with, and Indymac shall
maintain in its possession, available for the Purchaser's inspection and shall
deliver to the Purchaser upon demand, evidence of compliance with all such
requirements.
(h) No Release of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated, or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in
whole or in part, nor has any instrument been executed that would effect any
such release, cancellation, subordination or rescission. Indymac has not
waived the performance by the Mortgagor of any action, if the Mortgagor's
failure to perform such action would cause the Mortgage Loan to be in default,
nor has Indymac waived any default.
(i) Enforceability of Mortgage Documents. The Mortgage Note,
the Mortgage and any related modifications, assignments and assumptions are
genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws;
(j) Valid First or Second Lien on Mortgage Loans that are
not Cooperative Loans. Each related Mortgage is a valid, perfected, existing
and enforceable first or second lien or a first priority ownership interest in
an estate in fee simple in the Mortgaged Property, including, for Mortgage
Loans that are not Cooperative Loans, all improvements on the Mortgaged
Property, securing the related Mortgage Note, except that with respect to real
property located in jurisdictions in which the use of leasehold estates for
residential properties is a widely-accepted practice, the Mortgage may secure
and create a first lien upon a leasehold estate of the Mortgagor. The lien of
the Mortgage is subject only to:
(i) the lien of current real property taxes and
assessments not yet due and payable;
(ii) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the
date of recording that are acceptable to mortgage lending
institutions generally and specifically referred to in the
lender's title insurance policy delivered to the originator of
the Mortgage Loan and that do not adversely affect the
Appraised Value of the Mortgaged Property set forth in such
appraisal; and
(iii) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of
the security intended to be provided by the Mortgage or the
use, enjoyment, value or marketability of the related Mortgaged
Property; and
(iv) with respect to Second Lien Mortgage Loans, the lien
of the first mortgage on the Mortgaged Property.
Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting, enforceable and perfected (A)
first lien and first priority security interest with respect to each
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first lien mortgage loan, or (B) second lien and second priority security
interest with respect to each Second Lien Mortgage Loan, in either case, on the
property described therein and the Company has full right to sell and assign
the same to the Purchaser.
(k) Valid First Liens on Cooperative Loans: With respect to
each Cooperative Loan, the related Mortgage is a valid, enforceable and
subsisting first security interest on the related cooperative shares securing
the related cooperative note and lease, subject only to (a) liens of the
cooperative for unpaid assessments representing the Mortgagor's pro rata share
of the cooperative's payments for its blanket mortgage, current and future
real property taxes, insurance premiums, maintenance fees and other
assessments to which like collateral is commonly subject and (b) other matters
to which like collateral is commonly subject which do not materially interfere
with the benefits of the security intended to be provided by the Security
Agreement. There are no liens against or security interests in the cooperative
shares relating to each Cooperative Loan (except for unpaid maintenance,
assessments and other amounts owed to the related cooperative which
individually or in the aggregate will not have a material adverse effect on
such Cooperative Loan), which have priority equal to or over the Indymac's
security interest in such cooperative shares;
(l) [Reserved];
(m) With respect to each Cooperative Loan, the related
cooperative corporation that owns title to the related cooperative apartment
building is a "cooperative housing corporation" within the meaning of Section
216 of the Code, and is in material compliance with applicable federal, state
and local laws which, if not complied with, could have a material adverse
effect on the Mortgaged Property;
(n) With respect to each Cooperative Loan, there is no
prohibition against pledging the shares of the cooperative corporation or
assigning the Cooperative Lease;
(o) Leasehold Interests. With respect to any ground lease to
which a Mortgaged Property may be subject: (i) the Mortgagor is the owner of a
valid and subsisting leasehold interest under such ground lease: (ii) such
ground lease is in full force and effect; (iii) all rent, additional rent and
other charges reserved therein have been fully paid to the extent payable as of
the Closing Date; (iv) the Mortgagor enjoys the quiet and peaceful possession
of the leasehold estate, subject to any sublease; (v) the Mortgagor is not in
default under any of the terms of such ground lease, and there are no
circumstances which, with the passage of time or the giving of notice, or both,
would result in a default under such ground lease; (vi) the lessor under such
ground lease is not in default under any of the terms or provisions of such
ground lease on the part of the lessor to be observed or performed and (vii)
the term of such lease does not terminate earlier than 5 years following the
maturity date of the Mortgage Note.
(p) Disbursements of Proceeds. The proceeds of the Mortgage
Loan have been fully disbursed, and there is no requirement for future
advances thereunder, and any and all requirements as to completion of any
on-site or off-site improvement and as to disbursements of any escrow funds
therefor have been complied with. All costs, fees and expenses incurred in
making or closing the Mortgage Loan and recording the Mortgage were paid, and
the Mortgagor is not entitled to any refund of any amounts paid or due under
the Mortgage Note or Mortgage;
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(q) Sole Owner. Indymac is the sole owner and holder of the
Mortgage Loan and the indebtedness evidenced by the Mortgage Note. The
Mortgage Loan is not assigned or pledged, and Indymac has good and marketable
title thereto, and has full right to transfer and sell the Mortgage Loan to
the Purchaser free and clear of any encumbrance, equity, lien, pledge,
participation interests, charge, claim or security interest not specifically
set forth in the related Mortgage Loan Schedule and has full right and
authority subject to no interest or participation of, or agreement with, any
other party, to sell and assign each Mortgage Loan pursuant to the terms of
this Agreement. Indymac intends to relinquish all rights to monitor, possess
and control the Mortgage Loan except in connection with the servicing of the
Mortgage Loan as set forth in the Servicing Agreement. After the Closing Date,
Indymac will not have any right to modify or alter the terms of the sale of
the Mortgage Loan, nor will Indymac have any obligation or right to repurchase
the Mortgage Loan, except as provided in this Agreement or as otherwise agreed
to by Indymac and the Purchaser.
(r) Title Insurance. Each Mortgage Loan is covered by an
ALTA lender's title insurance policy included in the related Servicing File,
acceptable to an Agency, issued by a title insurer acceptable to an Agency and
qualified to do business in the jurisdiction where the related Mortgaged
Property is located, insuring (subject to the exceptions contained in Section
3.02(j)(i), (ii) and (iii) above) Indymac, its successors and assigns as to
the first priority lien (with respect to first lien Mortgage Loans) or second
priority lien (with respect to Second Lien Mortgage Loans) of the Mortgage.
Additionally, such lender's title insurance policy affirmatively insures
ingress and egress, and against encroachments by or upon the Mortgaged
Property or any interest therein. Indymac is the sole insured of such lender's
title insurance policy, and such lender's title insurance policy is in full
force and effect and will be in full force and effect upon the consummation of
the transactions contemplated by this Agreement. No claims have been made
under such lender's title insurance policy, and no prior holder of the related
Mortgage, including Indymac, has done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy;
(s) No Default. There is no default, breach, violation or
event of acceleration existing under the Mortgage or the Mortgage Note and no
event which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or event
of acceleration, and Indymac has not waived any default, breach, violation or
event of acceleration. With respect to each Second Lien Mortgage Loan, (i) the
prior mortgage is in full force and effect, (ii) there is no default, breach,
violation or event of acceleration existing under such prior mortgage or the
related mortgage note, (iii) as of the related Closing Date, no event which,
with the passage of time or with notice and the expiration of any grace or
cure period, would constitute a default, breach, violation or event of
acceleration thereunder, and either (A) the prior mortgage contains a
provision which allows or (B) applicable law requires, the mortgagee under the
Second Lien Mortgage Loan to receive notice of, and affords such mortgagee an
opportunity to cure any default by payment in full or otherwise under the
prior mortgage;
(t) No Mechanics' Liens. There are no mechanics' or similar
liens or claims which have been filed for work, labor or material (and no
rights are outstanding that under law could give rise to such lien) affecting
the related Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage;
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(u) Origination and Collection Practices. The origination
and collection practices used by Indymac with respect to each Mortgage Loan
and Mortgage have been in all respects legal, proper, prudent and customary in
the mortgage origination and servicing business. With respect to escrow
deposits and Escrow Payments, if any, all such payments are in the possession
of, or under the control of, Indymac and there exist no deficiencies in
connection therewith for which customary arrangements for repayment thereof
have not been made. No escrow deposits or Escrow Payments or other charges or
payments due Indymac have been capitalized under any Mortgage or the related
Mortgage Note. All payments have been collected in compliance with local,
state and federal law and the terms of the related Mortgage Note. With respect
to Adjustable Rate Mortgage Loans, all Mortgage Interest Rate adjustments have
been made in strict compliance with local, state and federal law and the terms
of the related Mortgage Note. Any interest required to be paid pursuant to
state and local law has been properly paid and credited;
(v) No Condemnation or Damage. There is no proceeding
pending or, to Indymac's knowledge, threatened for the total or partial
condemnation of the Mortgaged Property and such property is in good repair and
is undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
hurricane, tornado or other casualty, so as to affect adversely the value of
the Mortgaged Property as security for the Mortgage Loan or the use for which
the premises were intended;
(w) Customary and Enforceable Provisions. The Mortgage
contains customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security provided thereby including
(a) in the case of a Mortgage designated as a deed of trust, by trustee's
sale, and (b) otherwise by judicial foreclosure. There is no homestead or
other exemption available to a Mortgagor which would interfere with the right
to sell the Mortgaged Property at a trustee's sale or the right to foreclose
the Mortgage;
(x) Collateral. The Mortgage Note is not and has not been
secured by any collateral except the lien of the corresponding Mortgage on the
Mortgaged Property and the security interest of any applicable security
agreement or chattel mortgage referred to in (j) above;
(y) Appraisal. The Mortgage File contains an appraisal of
the related Mortgaged Property signed prior to the approval of the Mortgage
Loan application by an appraiser who meets the minimum requisite
qualifications of an Agency for appraisers, duly appointed by the originator,
that had no interest, direct or indirect in the Mortgaged Property, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan; the appraisal is in a form acceptable to an Agency, with such riders as
are acceptable to such Agency, and such appraisal complies with the
requirements of FIRREA; furthermore, the appraisal type for each Mortgage Loan
is accurately reflected on the Mortgage Loan Schedule;
(z) Trustee for Deed of Trust. In the event the Mortgage
constitutes a deed of trust, a trustee, duly qualified under applicable law to
serve as such, has been properly designated and currently so serves and is
named in the Mortgage, and no fees or expenses are or will become payable by
the Purchaser to the trustee under the deed of trust, except in connection
with a trustee's sale after default by the Mortgagor;
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(aa) Private Mortgage Insurance. Each PMI Policy has been
issued by an insurer acceptable to Xxxxxx Xxx or Xxxxxxx Mac, in at least such
amounts as required by FHMA or Xxxxxxx Mac. All provisions of such PMI Policy
have been and are being complied with, such policy is in full force and
effect, and all premiums due thereunder have been paid. Any Mortgage subject
to any such PMI Policy obligates the Mortgagor thereunder to maintain such
insurance and to pay all premiums and charges in connection therewith or, in
the case of a lender paid mortgage insurance policy, the premiums and charges
are included in the Mortgage Interest Rate for the Mortgage Loan;
(bb) Lawfully Occupied. The Mortgaged Property is lawfully
occupied under applicable law. All inspections, licenses and certificates
required to be made or issued with respect to all occupied portions of the
Mortgaged Property and, with respect to the use and occupancy of the same
including certificates of occupancy, have been made or obtained from the
appropriate authorities. No improvements violate local zoning laws;
(cc) Assignment of Mortgage. The Assignment of Mortgage is
in recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) Form of Mortgage Note and Mortgage. The Mortgage Note
and Mortgage are on forms that are customary in the mortgage origination and
servicing business;
(ee) Predatory Lending Regulations. No Mortgage Loan is a
High Cost Loan, Home Loan or Covered Loan, as applicable, and no Mortgage Loan
originated on or after October 1, 2002 through March 6, 2003 is governed by
the Georgia Fair Lending Act. This representation and warranty is a Deemed
Material Breach Representation.
(ff) Consolidation of Future Advances. Any future advances
made to the Mortgagor prior to the Cut-off Date have been consolidated with
the outstanding principal amount secured by the Mortgage, and the secured
principal amount, as consolidated, bears a single interest rate and single
repayment term. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first or second lien priority by a title
insurance policy, an endorsement to the policy insuring the mortgagee's
consolidated interest or by other title evidence acceptable to each Agency.
The consolidated principal amount does not exceed the original principal
amount of the Mortgage Loan
(gg) Type of Mortgaged Property. If a portion of the
Mortgaged Property was being used for commercial purposes then (i) the mixed
use of the property represents a legal, permissible use of the property under
the local zoning requirements, (ii) the Mortgagor is the owner and the
operator of the business, (iii) the Mortgaged Property is primarily
residential in nature and (iv) the market value of the property is primarily a
function of its residential characteristics.
(hh) No Additional Collateral. The Mortgage Note is not and
has not been secured by any collateral, pledged account or other security
except the lien of the corresponding Mortgage and the security interest of any
applicable security agreement or chattel mortgage referred to in (j) above
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(ii) Servicemembers Civil Relief Act. The Mortgagor has not
notified Indymac, and Indymac has no knowledge of any relief requested or
allowed to the Mortgagor under the Servicemembers Civil Relief Act or any
similar state law;
(jj) Payment Terms. The Mortgage Note is payable on the
first day of each month in equal monthly installments of principal and
interest (or interest, in the case of any Mortgage Loan for which monthly
payments consist of only interest for a period of time specified on the
Mortgage Loan Schedule), (provided that, the installments of interest are
subject to change due to the adjustments to the Mortgage Interest Rate on each
Interest Rate Adjustment Date with respect to an Adjustable Rate Mortgage, and
interest is calculated and payable in arrears) providing for full amortization
by maturity over a scheduled term of no more than 30 years. No Mortgage Loan
converts, pursuant to the terms of the related Mortgage Note, from having
interest accrue on the principal amount thereof based on an adjustable rate to
having interest accrue based on a fixed rate, and no Mortgage Loan has a
shared appreciation or other contingent interest feature, or permits negative
amortization. The Mortgage Interest Rate, Lifetime Rate Cap, each applicable
Periodic Rate Cap and each applicable Interest Adjustment Date for each
Mortgage Loan are as set forth for such Mortgage Loan in the Mortgage Loan
Schedule;
(kk) Origination. At the time the Mortgage Loan was
originated, the originator was a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the National
Housing Act or a savings and loan association, a saving bank, a commercial
bank or similar banking institution which is supervised by a Federal or State
authority.
(ll) Loan-to-Value Ratio; CLTV; No Foreclosures. The
Combined Loan to Value Ratio as to any Mortgage Loan was no greater than 100%
at the time of its origination or refinancing, as applicable. No Mortgage Loan
is subject to a written foreclosure agreement or pending foreclosure
proceedings;
(mm) Underwriting Guidelines. The Mortgage Loan was
underwritten substantially in accordance with Indymac's underwriting
guidelines at the time of origination, subject to such reasonable variances as
Indymac approved. (the "Underwriting Guidelines");
(nn) Adverse Selection. Indymac used no adverse selection
procedures in selecting the Mortgage Loan from among the outstanding
first-lien residential mortgage loans owned by it which were available for
inclusion in the Mortgage Loan Package;
(oo) Environmental Matters. There is no pending action or
proceeding directly involving any Mortgaged Property of which Indymac is aware
in which compliance with any environmental law, rule or regulation is an
issue. To the best of Indymac's knowledge, nothing further remains to be done
to satisfy in full all requirements of each such law, rule or regulation
consisting a prerequisite to use and enjoyment of said property;
(pp) No Bankruptcy; Acceptable Investment. The Mortgagor is
not in bankruptcy and is not insolvent;
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(qq) No Additional Payments. There is no obligation on the
part of Indymac or any other party to make payments in addition to those made
by the Mortgagor;
(rr) No Arbitration. With respect to any Mortgage Loan
originated on or after August 1, 2004 and underlying the security, neither the
related mortgage nor the related mortgage note requires the Mortgagor to
submit to arbitration to resolve any dispute arising out of or relating in any
way to the Mortgage Loan transaction. This representation and warranty is a
Deemed Material and Adverse Representation;
(ss) No Credit Insurance Policies. No Mortgagor was required
to purchase any single premium credit insurance policy (e.g., life, mortgage,
disability, accident, unemployment, or property insurance product) or debt
cancellation agreement as a condition of obtaining the extension of credit. No
Mortgagor obtained a prepaid single premium credit insurance policy (e.g.,
life, mortgage, disability, accident, unemployment, or property insurance
product) in connection with the origination of the Mortgage Loan; No proceeds
from any Mortgage Loan were used to purchase single premium credit insurance
policies or debt cancellation agreements as part of the origination of, or as
a condition to closing, such Mortgage Loan. This representation and warranty
is a Deemed Material and Adverse Representation;
(tt) Mortgage Loans with Prepayment Premiums. The Mortgage
Loan is subject to a prepayment penalty as provided in the related Mortgage
Note except as set forth on the related Mortgage Loan Schedule. With respect
to each Mortgage Loan that has a prepayment penalty feature, each such
prepayment penalty is enforceable and will be enforced by the Seller for the
benefit of the Purchaser, and each prepayment penalty is permitted pursuant to
federal, state and local law. Each such prepayment penalty is in an amount not
more than the maximum amount permitted under applicable law and no such
prepayment penalty may be imposed for a term in excess of five (5) years with
respect to Mortgage Loans originated prior to October, 1, 2002. With respect
to Mortgage Loans originated on or after October 1, 2002, the duration of the
prepayment period shall not exceed three (3) years from the date of the
Mortgage Note unless the Mortgage Loan was modified to reduce the prepayment
period to no more than three (3) years from the date of the related Mortgage
Note and the Mortgagor was notified in writing of such reduction in prepayment
period. With respect to any Mortgage Loan that contains a provision permitting
imposition of a premium upon a prepayment prior to maturity: (i) prior to the
Mortgage Loan's origination, the Mortgagor agreed to such premium in exchange
for a monetary benefit, including but not limited to a rate or fee reduction,
(ii) prior to the loan's origination, the Mortgagor was offered the option of
obtaining a mortgage loan that did not require payment of such a premium,
(iii) the prepayment premium is disclosed to the Mortgagor in the loan
documents pursuant to applicable state, local and federal law. This
representation and warranty is a Deemed Material Breach Representation;
(uu) Qualified Mortgage. Each Mortgage Loan is a "qualified
mortgage" within Section 860G(a)(3) of the Code;
(vv) Credit Reporting. As to each consumer report (as
defined in the Fair Credit Reporting Act, Public Law 91-508) or other credit
information furnished by Indymac to the Purchaser, Indymac has full right and
authority and is not precluded by law or contract from furnishing such
information to the Purchaser and the Purchaser is not precluded from
furnishing
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the same to any subsequent or prospective purchaser of such
Mortgage. The Servicer will transmit full-file credit reporting data for each
Mortgage Loan pursuant to Xxxxxx Xxx Guide Announcement 95-19 and that for
each Mortgage Loan, Servicer agrees it shall report one of the following
statuses each month as follows: new origination, current, delinquent (30-,
60-, 90-days, etc.), foreclosed, or charged-off. This representation and
warranty is a Deemed Material Breach Representation;
(ww) Doing Business. Indymac and all other parties which
have had any interest in the Mortgage Loan, whether as mortgagee, assignee,
pledgee or otherwise, are (or, during the period in which they held and
disposed of such interest, were) in compliance with any and all applicable
"doing business" and licensing requirements of the laws of the state wherein
the Mortgaged Property is located;
(xx) No Buydown Provisions; No Graduated Payments or
Contingent Interests. The Mortgage Loan is not a graduated payment mortgage
loan and the Mortgage Loan does not have a shared appreciation or other
contingent interest feature, nor does it contain any "buydown" provision which
is currently in effect;
(yy) Due-On-Sale. The Mortgage contains an enforceable
provision for the acceleration of the payment of the unpaid principal balance
of the Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the mortgagee thereunder;
(zz) Disclosure Materials. The Mortgagor has received all
disclosure materials required by applicable law with respect to the making of
mortgage loans of the same type as the Mortgage Loan and rescission materials
required by applicable law if the Mortgage Loan is a Refinanced Mortgage Loan
and has acknowledged receipt of such materials to the extent required by
applicable law and such documents will remain in the Mortgage File;
(aaa) No Advancements. Indymac or any prior originator or
servicer has not advanced funds, or induced, solicited or knowingly received
any advance from any party other than the Mortgagor, directly or indirectly,
for the payment of any amount due under the Mortgage Loan;
(bbb) Delivery of Mortgage Documents. With respect to each
Mortgage Loan, Indymac is in possession of a complete Collateral File except
for the documents which have been delivered to the Purchaser or which have
been submitted for recording and not yet returned;
(ccc) Lost Note. With respect to each Mortgage where a lost
note affidavit has been delivered in place of the related Mortgage Note, the
related Mortgage Note is no longer in existence;
(ddd) Validity of Mortgage Documents. The Mortgage Note and
the Mortgage and any other agreement executed and delivered by a Mortgagor in
connection with a Mortgage Loan are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its
terms (including, without limitation, any provisions therein relating to
prepayment penalties);
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(eee) Construction or Rehabilitation of Mortgaged Property.
(i) No Mortgage Loan was made in connection with facilitating the trade-in or
exchange of a Mortgaged Property and (ii) a Mortgage Loan has a certificate of
completion if such Mortgage Loan was made in connection with the construction
or rehabilitation of the related Mortgaged Property;
(fff) [Reserved];
(ggg) Conversion to Fixed Interest Rate. No Mortgage Loan is
a Convertible Mortgage Loan;
(hhh) Compliance. Each Mortgage Loan is in compliance with
the anti-predatory lending eligibility for purchase requirements of Xxxxxx
Mae's Selling Guide;
(iii) Balloon Mortgage Loans. No Mortgage Loan is a balloon
mortgage loan that has an original stated maturity of less than seven (7)
years;
(jjj) Mortgagor Selection. No Mortgagor was encouraged or
required to select a Mortgage Loan product offered by the Mortgage Loan's
originator which is a higher cost product designed for less creditworthy
mortgagors, unless at the time of the Mortgage Loan's origination, such
Mortgagor did not qualify taking into account credit history and debt to
income ratios for a lower cost credit product then offered by the Mortgage
Loan's originator or any affiliate of the Mortgage Loan's originator. If, at
the time of loan application, the Mortgagor may have qualified for a for a
lower cost credit product then offered by any mortgage lending affiliate of
the Mortgage Loan's originator, the Mortgage Loan's originator referred the
related Mortgagor's application to such affiliate for underwriting
consideration. This representation and warranty is a Deemed Material Breach
Representation;
(kkk) Underwriting Methodology. The methodology used in
underwriting the extension of credit for each Mortgage Loan employs objective
mathematical principles which relate the Mortgagor's income, assets and
liabilities to the proposed payment and such underwriting methodology does not
rely on the extent of the Mortgagor's equity in the collateral as the
principal determining factor in approving such credit extension. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the Mortgagor had a reasonable ability to make timely
payments on the Mortgage Loan. This representation and warranty is a Deemed
Material Breach Representation;
(lll) Points and Fees. No Mortgagor was charged "points and
fees" (whether or not financed) in an amount greater than (i) 1,000 or (ii) 5%
of the principal amount of such Mortgage Loan, whichever is greater. For
purposes of this representation such 5% limitation is calculated in accordance
with Xxxxxx Mae's anti-predatory lending requirements as set forth in the
Xxxxxx Mae Guides, "points and fees" (x) include origination, underwriting,
broker and finder fees and charges that the mortgagee imposed as a condition
of making the Mortgage Loan, whether they are paid to the mortgagee or a third
party, and (y) exclude bona fide discount points, fees paid for actual
services rendered in connection with the origination of the Mortgage Loan
(such as attorneys' fees, notaries fees and fees paid for property appraisals,
credit reports, surveys, title examinations and extracts, flood and tax
certifications, and home inspections), the cost of mortgage insurance or
credit-risk price adjustments, the costs of title, hazard, and flood
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insurance policies, state and local transfer taxes or fees, escrow deposits for
the future payment of taxes and insurance premiums, and other miscellaneous fees
and charges that, in total, do not exceed 0.25% of the principal amount of
such Mortgage Loan. This representation and warranty is a Deemed Material
Breach Representation;
(mmm) Disclosure of Fees and Charges. All fees and charges
(including finance charges), whether or not financed, assessed, collected or
to be collected in connection with the origination and servicing of each
Mortgage Loan, have been disclosed in writing to the Mortgagor in accordance
with applicable state and federal law and regulation. This representation and
warranty is a Deemed Material Breach Representation;
(nnn) Tax Service; Flood Insurance. Each Mortgage Loan is
covered by a paid in full, life of loan, tax service contract and paid in
full, life of loan, flood certification contract and each of theses contracts
is assignable to the Purchaser; and
(ooo) Origination Practices. No Mortgagor was encouraged or
required to select a Mortgage Loan product offered by the Mortgage Loan's
originator which is a higher cost product designed for less creditworthy
borrowers, unless at the time of the Mortgage Loan's origination, such
Mortgagor did not qualify taking into account credit history and
debt-to-income ratios for a lower-cost credit product then offered by the
Mortgage Loan's originator or any affiliate of the Mortgage Loan's originator.
If, at the time of loan application, the Mortgagor may have qualified for a
lower-cost credit product then offered by any mortgage lending affiliate of
the Mortgage Loan's originator, the Mortgage Loan's originator referred the
Mortgagor's application to such affiliate for underwriting consideration. This
representation and warranty is a Deemed Material Breach Representation.
Section 3.03 Remedies for Breach of Representations and
Warranties.
(a) Notice of Breach. The representations and warranties set
forth in Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans
to the Purchaser and shall inure to the benefit of the Purchaser, its
successors and assigns, notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination
or failure to examine any Collateral Documents or Credit File. Upon discovery
by either Indymac or the Purchaser of a breach of any of the foregoing
representations and warranties that materially and adversely affects the value
of one or more of the related Mortgage Loans, the party discovering such
breach shall give prompt written notice to the other.
(b) Cure or Repurchase. Within sixty (60) days from the
earlier of either discovery by or notice to Indymac of a breach of a
representation or warranty that materially and adversely affects the value of
a Mortgage Loan or the Mortgage Loans, Indymac shall use its best efforts to
cure such breach in all material respects, and, if such breach cannot be
cured, Indymac shall, at the Purchaser's option, repurchase such Mortgage Loan
at the Repurchase Price. Notwithstanding anything to the contrary herein, (i)
breach of any one of the representation and warranty set forth in clause (uu)
in Subsection 3.02 shall be deemed to materially and adversely affect the
value of the related Mortgage Loans and, within sixty (60) days of the earlier
of either discovery by or notice to Indymac, as the case may be, of such
breach, Indymac shall repurchase such Mortgage Loan at the Repurchase Price
and (ii) any
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breach of a Deemed Material and Adverse Representation shall automatically be
deemed to materially and adversely affects the value of the Mortgage Loans or
the interest of the Purchaser therein. In the event that a breach shall
involve any representation or warranty set forth in Section 3.01 and such
breach cannot be cured within sixty (60) days of the earlier of either
discovery by or notice to Indymac of such breach, Indymac shall repurchase
such of the Mortgage Loans as shall be necessary to cure such breach at the
Repurchase Price.
(c) Substitution or Repurchase. If the breach shall involve
a representation or warranty set forth in Section 3.02, Indymac may at the
discretion of the Purchaser, rather than repurchase the Mortgage Loan as
provided above, remove such Mortgage Loan and substitute in its place a
Qualified Substitute Mortgage Loan or Loans, provided, however that with
respect to a breach of any one of the representations and warranties set forth
in clauses (ee), (rr), (ss), (tt), (uu) and (vv), Indymac shall indemnify the
Purchaser, its successors and assigns, its affiliates, and their respective
directors, officers and employees, as applicable, and hold them harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary attorneys' fees and related costs, judgments, and any
other costs, fees and expenses that the Purchaser may sustain in any way
related to Indymac's breach of such representations and warranties. If Indymac
elects not to substitute a Qualified Substitute Mortgage Loan, it shall
repurchase the deficient Mortgage Loan. Any repurchase of a Mortgage Loan(s)
pursuant to the provisions of this Section 3.03 shall be accomplished by
deposit in the Custodial Account of the amount of the Repurchase Price for
distribution to the Purchaser on the next scheduled Remittance Date, after
deducting therefrom any amount received in respect of such repurchased
Mortgage Loan or Loans and being held in the Custodial Account for future
distribution. At the time of repurchase or substitution, the Purchaser and
Indymac shall arrange for the reassignment of such Mortgage Loan and release
of the related Collateral File to Indymac and the delivery to Indymac of any
documents held by the Purchaser or its designee relating to such Mortgage
Loan. In the event Indymac is authorized to substitute a Qualified Substitute
Mortgage Loan for a repurchased Mortgage Loan, Indymac shall, simultaneously
with such reassignment, give written notice to the Purchaser that substitution
has taken place and identify the Qualified Substitute Mortgage Loan(s). In
connection with any such substitution, Indymac shall be deemed to have made as
to such Qualified Substitute Mortgage Loan(s) the representations and
warranties except that all such representations and warranties set forth in
this Agreement shall be deemed made as of the date of such substitution.
Indymac shall effect such substitution by delivering to the Purchaser the
Collateral Documents for such Qualified Substitute Mortgage Loan(s). Indymac
shall deposit in the Custodial Account the Monthly Payment less the Servicing
Fee due on such Qualified Substitute Mortgage Loan(s) in the month following
the date of such substitution. Monthly Payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution shall be retained by
Indymac. For the month of substitution, distributions to the Purchaser shall
include the Monthly Payment due on any substituted Mortgage Loan in the month
of substitution, and Indymac shall thereafter be entitled to retain all
amounts subsequently received by Indymac in respect of such substituted
Mortgage Loan.
For any month in which Indymac substitutes a Qualified
Substitute Mortgage Loan for a repurchased Mortgage Loan, Indymac shall
determine the amount (if any) by which the aggregate principal balance of all
Qualified Substitute Mortgage Loans as of the date of substitution is less
than the aggregate Stated Principal Balance of all substituted Mortgage Loans
(after application of scheduled principal payments due in the month of
substitution). The amount
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of such shortfall shall be distributed by Indymac in the month of substitution
pursuant to Section 5.01. Accordingly, on the date of such substitution,
Indymac shall deposit from its own funds into the Custodial Account an amount
equal to the amount of such shortfall. Notwithstanding the above, in no event
shall Indymac substitute a loan that has been placed in a trust with respect
to a securitization.
In addition to such cure and repurchase obligations, Indymac
shall indemnify the Purchaser, its successors and assigns, its affiliates, and
their respective directors, officers and employees, as applicable, and hold
the Purchaser, its affiliates and each such person harmless against any
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and related costs, judgments, and other costs and expenses resulting from any
claim, demand, defense or assertion by any third party that is based on or
grounded upon, or resulting from, a breach of Indymac's representations and
warranties contained in this Agreements.
Section 3.04 Accrual of Cause of Action. Any cause of action
against Indymac relating to or arising out of the breach of any
representations and warranties made in Sections 3.01 or 3.02 shall accrue as
to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or
notice thereof by Indymac to the Purchaser, (ii) failure by Indymac to cure
such breach or substitute or repurchase such Mortgage Loan as specified above,
or (iii) demand upon Indymac by the Purchaser for compliance with the relevant
provisions of this Agreement.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Indymac to Act as Servicer.
Indymac shall service and administer Mortgage Loans sold
pursuant to this Agreement in accordance with the terms of the Servicing
Agreement and shall have full power and authority, acting alone, to do or
cause to be done any and all things, in connection with such servicing and
administration, that Indymac may deem necessary or desirable and consistent
with the terms of the Servicing Agreement.
ARTICLE V
COVENANTS BY INDYMAC
Section 5.01 Indemnification by Indymac.
Indymac shall indemnify the Purchaser, its affiliates, and
their respective directors, officers and employees, as applicable, and hold
the Purchaser, its affiliates and each such person harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary attorneys' fees and related costs, judgments, and any other costs,
fees and expenses that the Purchaser may sustain in any way related to the
failure of Indymac to perform its obligations hereunder, including its
obligations to service and administer the Mortgage Loans in compliance with
the terms of this Agreement.
Section 5.02 [Reserved]
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Section 5.03 Merger or Consolidation of Indymac.
Indymac shall keep in full effect its existence, rights and
franchises as a federal savings bank under the laws of the United States or
under the laws of one of the states thereof, and will obtain and preserve its
qualification to do business in each jurisdiction in which such qualification
is or shall be necessary to protect the validity and enforceability of this
Agreement, or any of the Mortgage Loans, and to perform its duties under this
Agreement.
Notwithstanding anything to the contrary contained herein,
any Person into which Indymac may be merged or consolidated, or any entity
resulting from any merger, conversion or consolidation to which Indymac shall
be a party, or any Person succeeding to the business of Indymac, shall be the
successor of Indymac hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto; provided,
however, that the successor or surviving Person shall be an institution whose
deposits are insured by FDIC or a company whose business is the origination
and servicing of mortgage loans, unless otherwise consented to by the
Purchaser, which consent shall not be unreasonably withheld, and shall be
qualified to service mortgage loans on behalf of an Agency.
Section 5.04 Limitation on Liability of Indymac and Others.
Neither Indymac nor any of the officers, employees or agents
of Indymac shall be under any liability to the Purchaser for any action taken,
or for refraining from taking any action, in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect Indymac or any such person against any breach of warranties
or representations made herein, or any liability which would otherwise be
imposed by reason of any breach of the terms and conditions of this Agreement
and, provided further, that this provision shall not protect Indymac or any
such person against any liability that would otherwise be imposed by reason of
the willful misfeasance, bad faith or negligence in the performance of duties
or by reason of reckless disregard of the obligations or duties hereunder.
Indymac and any officer, employee or agent of Indymac may rely in good faith
on any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. Notwithstanding anything to
the contrary contained in this Agreement, unless one or more Event of Default
by Indymac shall occur and shall not have been remedied within the time limits
set forth in Section 7.1 of the Servicing Agreement, the Purchaser shall not
record or cause to be recorded an Assignment of Mortgage with the recording
office. To the extent the Purchaser records with the recording office as
permitted herein an Assignment of Mortgage which designates the Purchaser as
the holder of record of the Mortgage, the Purchaser agrees that it shall (i)
provide Indymac with immediate notice of any action with respect to the
Mortgage or the related Mortgaged Property and ensure that the proper
department or person at Indymac receives such notice; and (ii) immediately
complete, sign and return to Indymac any document reasonably requested by
Indymac to comply with its servicing obligations, including without
limitation, any instrument required to release the Mortgage upon payment in
full of the obligation or take any other action reasonably required by
Indymac. The Purchaser further agrees that Indymac shall have no liability for
the Purchaser's failure to comply with the subsections (i) or (ii) in the
foregoing sentence. Indymac shall have no liability to the Purchaser and shall
not be under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties to service the Mortgage Loans in
accordance with this Agreement and
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which in its opinion may involve it in any expenses or liability; provided,
however, that Indymac may, with the consent of the Purchaser, undertake any
such action which it may deem necessary or desirable to protect the
Purchaser's interests in the Mortgage Loans. In such event, the legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities for which the Purchaser will be liable, and
Indymac shall be entitled to be reimbursed therefor from the Purchaser upon
written demand except when such expenses, costs and liabilities are subject to
Indymac's indemnification under Sections 3.03 and 5.01.
Section 5.05 No Transfer of Servicing.
Indymac acknowledges that the Purchaser acts in reliance
upon Indymac's independent status, the adequacy of its servicing facilities,
plant, personnel, records and procedures, its integrity, reputation and
financial standing and the continuance thereof. Without in any way limiting
the generality of this Section, Indymac shall not assign this Agreement or the
servicing rights hereunder, without the prior written approval of the
Purchaser, which consent may not be unreasonably withheld.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Notices.
All demands, notices and communications required to be
provided hereunder shall be in writing and shall be deemed to have been duly
given if mailed, by registered or certified mail, postage prepaid, and return
receipt requested, or, if by other means, when received by the other party at
the address as follows:
(i) to Indymac:
IndyMac Bank, F.S.B
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Secondary Marketing
(ii) the Purchaser:
To the address and contact set forth in the related
Purchase Confirmation
or such other address as may hereafter be furnished to the other party by like
notice. Any such demand, notice or communication hereunder shall be deemed to
have been received on the date delivered to or received at the premises of the
addressee (as evidenced, in the case of registered or certified mail, by the
date noted on the return receipt).
Section 6.02 Sale Treatment.
It is the express intention of the parties that the
transactions contemplated by this Agreement be, and be construed as, a sale of
the Mortgage Loans by Indymac and not a pledge
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of the Mortgage Loans by Indymac to the Purchaser to secure a debt or other
obligation of Indymac. Consequently, the sale of each Mortgage Loan shall be
reflected as a sale on Indymac's business records, tax returns and financial
statements. Accordingly, Indymac and the Purchaser shall each treat the
transaction for federal income tax purposes as a sale by Indymac, and a
purchase by the Purchaser, of the Mortgage Loans.
Section 6.03 Exhibits.
The Exhibits to this Agreement and each Trade Confirmation
and Purchase Confirmation executed by Indymac and the Purchaser are hereby
incorporated and made a part hereof and are an integral part of this
Agreement.
Section 6.04 General Interpretive Principles.
For purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the
other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(c) references herein to "Articles," "Sections,"
"Subsections," "Paragraphs," and other Subdivisions without reference to a
document are to designated Articles, Sections, Subsections, Paragraphs and
other subdivisions of this Agreement;
(d) reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein," "hereof," "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular provision;
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration; and
(g) reference to the Transaction Documents or any other
document referenced herein shall include all exhibits, schedules or other
supplements thereto.
Section 6.05 Reproduction of Documents.
This Agreement and all documents relating thereto, including
(a) consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction
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shall be admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in existence and
whether or not such reproduction was made by a party in the regular course of
business, and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
Section 6.06 Further Agreements.
Indymac shall execute and deliver to the Purchaser and the
Purchaser shall be required to execute and deliver to Indymac such reasonable
and appropriate additional documents, instruments or agreements as may be
necessary or appropriate to effectuate the purposes of this Agreement.
Section 6.07 Assignment of Mortgage Loans by the Purchaser;
Securitization Transactions.
(a) The Purchaser may, subject to the terms of this
Agreement, sell and transfer one or more of the Mortgage Loans; provided,
however, that the transferee will not be deemed to be the Purchaser hereunder
unless such transferee shall agree in writing to be bound by the terms of this
Agreement and an original counterpart of the document evidencing such
agreement shall have been executed by the Purchaser and the transferee and
delivered to Indymac. Notwithstanding the foregoing, no transfer shall be
effective if such transfer would result in there being more than five (5)
"Purchasers" outstanding hereunder with respect to any Mortgage Loan Package.
Any trust to which Mortgage Loans may be transferred pursuant to Section
6.07(b) hereunder shall constitute a single Purchaser for the purposes of the
preceding sentence.
(b) The Purchaser and Indymac agree that with respect to
some or all of the Mortgage Loans, the Purchaser, at its sole option, but
subject to the limitations set forth in Section 6.07(a) hereof, may effect
Securitization Transactions and Whole Loan Transfer, retaining Indymac as the
servicer thereof or subservicer if a master servicer is employed, or as
applicable the "seller/servicer." On the related Reconstitution Date, the
Mortgage Loans transferred shall cease to be covered by this Agreement;
provided, however, that, in the event that any Mortgage Loan transferred
pursuant to this Section 6.07 is rejected by the related transferee, Indymac
shall continue to service such rejected Mortgage Loan on behalf of the
Purchaser in accordance with the terms and provisions of this Agreement.
Indymac shall cooperate with the Purchaser in connection with each
Securitization Transaction and Whole Loan Transfer in accordance with this
Section 6.07. In connection therewith Indymac shall:
(i) negotiate in good faith and execute any
seller/servicer agreement reasonably required to effectuate the
Securitization Transaction and Whole Loan Transfer, provided
such agreement creates no greater obligation or cost on the
part of Indymac than otherwise set forth in this Agreement, and
provided further that Indymac shall be entitled to a servicing
fee under that agreement at a rate per annum no less than the
Servicing Fee Rate; and
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(ii) provide as applicable:
(A) information pertaining to Indymac of the type and
scope customarily included in offering documents for
residential mortgage-backed securities transactions
involving multiple loan originators; and
(B) such opinions of counsel, letters from auditors,
and certificates of public officials or officers of
Indymac as are reasonably believed necessary by the
trustee, any rating agency or the Purchaser, as the case
may be, in connection with such Securitization Transaction
and Whole Loan Transfer. The Purchaser shall pay all
reasonable third party costs associated with the
preparation of the information described in clause (ii)(A)
above and the delivery of any opinions, letters or
certificates described in this clause (ii)(B). Indymac
shall not be required to execute any seller/servicer
agreement unless a draft of the agreement is provided to
Indymac at least 10 days before the Reconstitution Date.
(c) In connection with any (a) Securitization Transaction
and (b) Whole Loan Transfer, Indymac shall restate to the Purchaser and, with
respect to (a) above, to the applicable depositor (the "Depositor"), trustee
(the "Trustee") and the master servicer (the "Master Servicer"), all
representations and warranties contained in this Agreement, with respect to
the Mortgage Loans as of the Closing Date and with respect to Indymac itself
as of the closing date of each Whole Loan Transfer or Securitization
Transaction.
(d) In connection with any Securitization Transaction and
Whole Loan Transfer, Indymac shall indemnify, defend and hold harmless the
Purchaser, the Depositor, the Trustee, the Master Servicer, their respective
affiliates, and their respective directors, officers and employees from and
against any and all losses, claims, expenses, damages, liabilities, reasonable
and necessary attorneys' fees and related costs, judgments, and any other
costs to which any such party may be subject to as a result of any untrue
statement of any material fact contained in any information (such information,
the "Indymac Information") prepared and furnished to the Purchaser, the
Depositor, the Trustee and the Master Servicer by Indymac for inclusion in any
related offering document or prospectus (collectively, "Offering Materials"),
or arise out of, or are based upon, any omission in the Indymac Information
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and will reimburse to all such parties,
as applicable, for damages or expenses reasonably incurred by it; provided,
however, that Indymac shall be liable only insofar as such untrue statement or
omission relates solely to the Indymac Information in the Offering Materials
furnished to any such party by Indymac specifically for inclusion in the
Prospectus Supplement; and
(e) All Mortgage Loans not sold or transferred pursuant to
Securitization Transactions or Whole Loan Transfer shall remain subject to
this Agreement and shall continue to be serviced in accordance with the terms
of this Agreement and with respect thereto this Agreement shall remain in full
force and effect.
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Section 6.08 Conflicts between Transaction Documents.
In the event of any conflict, inconsistency or ambiguity
between the terms and conditions of this Agreement, the Servicing Agreement,
and either the related Trade Confirmation or the related Purchase
Confirmation, the terms of the related Purchase Confirmation shall control. In
the event of any conflict, inconsistency or ambiguity between the terms and
conditions of the Trade Confirmation and the Purchase Confirmation, the terms
of the Purchase Confirmation shall control.
Section 6.09 Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements
entered into and wholly performed within that state.
Section 6.10 Severability Clause.
Any part, provision, representation or warranty of this
Agreement which is prohibited or which is held to be void or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall
be ineffective, as to such jurisdiction, to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage
Loan shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable
any provision hereof. If the invalidity of any part, provision, representation
or warranty of this Agreement shall deprive any party of the economic benefit
intended to be conferred by this Agreement, the parties shall negotiate, in
good-faith, to an amendment to this Agreement which places each party in the
same or as economic position as each party would have been in except for such
invalidity.
Section 6.11 Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by Indymac and the Purchaser and the respective permitted
successors and assigns of Indymac and the Purchaser.
Section 6.12 Relationship of Parties.
Nothing herein contained shall be deemed or construed to
create a partnership or joint venture between the parties hereto and the
services of Indymac shall be rendered as an independent contractor and not as
agent for the Purchaser.
Section 6.13 Solicitation of Mortgagor.
From and after the Closing Date, Indymac hereby agrees that
it will not take any action or permit or cause any action to be taken by any
of its agents or affiliates, or by any
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independent contractors or independent mortgage brokerage companies on its
behalf, to personally, by telephone or mail, solicit the mortgagor under any
Mortgage Loan for the purpose of refinancing such Mortgage Loan; provided,
that Indymac may solicit any mortgagor from whom it or its servicing affiliate
has received a request for verification of mortgage, a request for demand for
payoff, a mortgagor initiated written or verbal communication indicating a
desire to prepay the related Mortgage Loan, or the mortgagor initiates a title
search, provided further, it is understood and agreed that promotions
undertaken by Indymac or any of its affiliates which (i) concern optional
insurance products or other additional projects or (ii) are directed to the
general public at large, including, without limitation, mass mailings based on
commercially acquired mailing lists, newspapers, radio and television
advertisements shall not constitute solicitation nor is Indymac prohibited
from responding to unsolicited requests or inquiries made by a mortgagor or an
agent of a mortgagor. Notwithstanding the foregoing, the following
solicitations, if undertaken by Indymac or any affiliate of Indymac, shall not
be prohibited: (i) solicitations that are directed to the general public at
large, including, without limitation, mass mailings based on commercially
acquired mailing lists and newspaper, radio, television and other mass media
advertisements and (ii) borrower messages included on, and statement inserts
provided with, the monthly statements sent to mortgagors; provided, however,
that similar messages and inserts are sent to borrowers of other mortgage
loans serviced by Indymac.
Section 6.14 Confidentiality.
Indymac, the Purchaser and their agents shall keep
confidential and shall not divulge to any person, other than affiliates,
without the written consent of the other party, the terms of this agreement,
except (i) to the extent required by law or judicial order or to enforce its
rights or remedies under this agreement, the Servicing Agreement, or any
applicable agreements, (ii) to the extent such information enters into the
public domain other than through the wrongful act of Indymac or the Purchaser,
as the case may be, (iii) as is necessary in working with legal counsel,
auditors, rating agencies, agents, taxing authorities or other governmental
agencies, or (iv) in order to disclose to any and all persons, without
limitation of any kind, the structure and tax aspects of this sale or any
transaction and all materials of any kind (including opinions or other tax
analyses) that are provided to the Purchaser related to such sale, transaction
and tax aspects, all as contemplated by Section 1.6011-4T(b)(3) (or any
successor provision) of the Treasury Regulations promulgated under Section
6011 of the Internal Revenue Code of 1986.
Moreover, Indymac understands and agrees that this
Agreement, the Servicing Agreement, any other agreements executed in
connection with the sale and servicing contemplated hereunder, any agreements
executed in connection with a securitization of the Mortgage Loans, and any
offering circulars or other disclosure documents produced in connection with
such securitization are confidential and proprietary to the Purchaser, and
Indymac agrees to hold such documents confidential and not to divulge such
documents to anyone except (a) to the extent required by law or judicial order
or to enforce its rights or remedies under this letter agreement or the
Agreements, (b) to the extent such information enters into the public domain
other than through the wrongful act of Indymac (c) as is necessary in working
with legal counsel, auditors, agents, taxing authorities or other governmental
agencies, or (d) in order to disclose to any and all persons, without
limitation of any kind, the structure and tax aspects of this sale or such
securitization and all materials of any kind (including opinions or other tax
analyses) that are provided to the Purchaser related to such sale,
securitization and tax
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aspects, all as contemplated by Section 1.6011-4T(b)(3) (or any successor
provision) of the Treasury Regulations promulgated under Section 6011 of the
Internal Revenue Code of 1986. The rights and obligations set forth in this
paragraph shall survive the Closing Date and shall not merge into the closing
documents but shall be independently enforceable by the parties hereto.
Section 6.15 Entire Agreement.
This Agreement and the related Trade Confirmation and
Purchase Confirmation constitute the entire understanding between the parties
hereto with respect to each Mortgage Loan Package and supersede all prior or
contemporaneous oral or written communications regarding same. Indymac and the
Purchaser understand and agree that no employee, agent or other representative
of Indymac or the Purchaser has any authority to bind such party with regard
to any statement, representation, warranty or other expression unless said
statement, representation, warranty or other expression is specifically
included within the express terms of this Agreement or the related Trade
Confirmation or Purchase Confirmation. Neither this Agreement nor the related
Trade Confirmation or Purchase Confirmation shall be modified, amended or in
any way altered except by an instrument in writing signed by both parties.
ARTICLE VII
COMPLIANCE WITH REGULATION AB
Section 7.01 Intent of the Parties; Reasonableness.
The Purchaser and Indymac acknowledge and agree that the
purpose of Article VII of this Agreement is to facilitate compliance by the
Purchaser and any Depositor with the provisions of Regulation AB and related
rules and regulations of the Commission. Although Regulation AB is applicable
by its terms only to offerings of asset-backed securities that are registered
under the Securities Act, Indymac acknowledges that investors in privately
offered securities may require that the Purchaser or any Depositor provide
comparable disclosure in unregistered offerings. References in this Agreement
to compliance with Regulation AB include provision of comparable disclosure in
private offerings.
Neither the Purchaser nor any Depositor shall exercise its
right to request delivery of information or other performance under these
provisions other than in good faith, or for purposes other than compliance
with the Securities Act, the Exchange Act and the rules and regulations of the
Commission thereunder (or the provision in a private offering of disclosure
comparable to that required under the Securities Act). Indymac acknowledges
that interpretations of the requirements of Regulation AB may change over
time, whether due to interpretive guidance provided by the Commission or its
staff, consensus among participants in the asset-backed securities markets,
advice of counsel, or otherwise, and agrees to comply with requests made by
the Purchaser or any Depositor in good faith for delivery of information under
these provisions on the basis of evolving interpretations of Regulation AB. In
connection with any Securitization Transaction, Indymac shall cooperate fully
with the Purchaser to deliver to the Purchaser (including any of its assignees
or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Purchaser or any Depositor to permit the Purchaser or
such Depositor to comply with the provisions of Regulation AB, together with
such disclosures relating to
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Indymac, any Third-Party Originator and the Mortgage Loans, or the servicing
of the Mortgage Loans, reasonably believed by the Purchaser or any Depositor
to be necessary in order to effect such compliance.
The Purchaser (including any of its assignees or designees)
shall cooperate with Indymac by providing timely notice of requests for
information under these provisions and by reasonably limiting such requests to
information required, in the Purchaser's reasonable judgment, to comply with
Regulation AB. Section 7.02 Additional Representations and Warranties of
Indymac.
(a) Indymac shall be deemed to represent to the Purchaser
and to any Depositor, as of the date on which information is first provided to
the Purchaser or any Depositor under Section 7.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) Indymac is
not aware and has not received notice that any default, early amortization or
other performance triggering event has occurred as to any other securitization
due to any act or failure to act of Indymac; (ii) Indymac has not been
terminated as servicer in a residential mortgage loan securitization, either
due to a servicing default or to application of a servicing performance test
or trigger; (iii) no material noncompliance with the applicable servicing
criteria with respect to other securitizations of residential mortgage loans
involving Indymac as servicer has been disclosed or reported by Indymac; (iv)
no material changes to Indymac's policies or procedures with respect to the
servicing function it will perform under the Servicing Agreement and any
Reconstitution Agreement for mortgage loans of a type similar to the Mortgage
Loans have occurred during the three-year period immediately preceding the
related Securitization Transaction; (v) there are no aspects of Indymac's
financial condition that could have a material adverse effect on the
performance by Indymac of its servicing obligations under the Servicing
Agreement or any Reconstitution Agreement; (vi) there are no material legal or
governmental proceedings pending (or known to be contemplated) against
Indymac, any Subservicer or any Third-Party Originator; and (vii) there are no
affiliations, relationships or transactions relating to Indymac, any
Subservicer or any Third-Party Originator with respect to any Securitization
Transaction and any party thereto identified by the related Depositor of a
type described in Item 1119 of Regulation AB.
(b) If so requested by the Purchaser or any Depositor on any
date following the date on which information is first provided to the
Purchaser or any Depositor under Section 7.03, Indymac shall, within five
Business Days following such request, confirm in writing the accuracy of the
representations and warranties set forth in paragraph (a) of this Section or,
if any such representation and warranty is not accurate as of the date of such
request, provide reasonably adequate disclosure of the pertinent facts, in
writing, to the requesting party.
Section 7.03 Information to Be Provided by Indymac.
In connection with any Securitization Transaction, Indymac
shall (i) within five Business Days following request by the Purchaser or any
Depositor, provide to the Purchaser and such Depositor (or, as applicable,
cause each Third-Party Originator to provide), in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (a) and (b) of this Section,
and (ii) as promptly
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as practicable following notice to or discovery by Indymac, provide to the
Purchaser and any Depositor (in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor) the information specified in
paragraph (d) of this Section.
(a) If so requested by the Purchaser or any Depositor,
Indymac shall provide such information regarding (i) Indymac, as originator of
the Mortgage Loans (including as an acquirer of Mortgage Loans from a
Qualified Correspondent), or (ii) each Third-Party Originator, meeting the
requirements of Items 1103(a)(1), 1105, 1110, 1117 and 1119 of Regulation AB.
Such information shall include, at a minimum:
(A) the originator's form of organization;
(B) a description of the originator's origination
program and how long the originator has been engaged in
originating residential mortgage loans, which description
shall include a discussion of the originator's experience
in originating mortgage loans of a similar type as the
Mortgage Loans; information regarding the size and
composition of the originator's origination portfolio; and
information that may be material, in the good faith
judgment of the Purchaser or any Depositor, to an analysis
of the performance of the Mortgage Loans, including the
originators' credit-granting or underwriting criteria for
mortgage loans of similar type(s) as the Mortgage Loans
and such other information as the Purchaser or any
Depositor may reasonably request for the purpose of
compliance with Item 1110(b)(2) of Regulation AB;
(C) a description of any material legal or
governmental proceedings pending (or known to be
contemplated) against Indymac and each Third-Party
Originator; and
(D) a description of any affiliation or relationship
between Indymac, each Third-Party Originator and any of
the following parties to a Securitization Transaction, as
such parties are identified to Indymac by the Purchaser or
any Depositor in writing in advance of such Securitization
Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
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(9) any other material transaction party.
(b) If so requested by the Purchaser or any Depositor,
Indymac shall provide (or, as applicable, cause each Third-Party Originator to
provide) Static Pool Information with respect to the mortgage loans (of a
similar type as the Mortgage Loans, as reasonably identified by the Purchaser
as provided below) originated by (i) Indymac, if Indymac is an originator of
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), and/or (ii) each Third-Party Originator. Such Static Pool
Information shall be prepared by Indymac (or Third-Party Originator) on the
basis of its reasonable, good faith interpretation of the requirements of Item
1105(a)(1)-(3) of Regulation AB. To the extent that there is reasonably
available to Indymac (or Third-Party Originator) Static Pool Information with
respect to more than one mortgage loan type, the Purchaser or any Depositor
shall be entitled to specify whether some or all of such information shall be
provided pursuant to this paragraph. The content of such Static Pool
Information may be in the form customarily provided by Indymac, and need not
be customized for the Purchaser or any Depositor. Such Static Pool Information
for each vintage origination year or prior securitized pool, as applicable,
shall be presented in increments no less frequently than quarterly over the
life of the mortgage loans included in the vintage origination year or prior
securitized pool. The most recent periodic increment must be as of a date no
later than one hundred thirty-five (135) days prior to the date of the
prospectus or other offering document in which the Static Pool Information is
to be included or incorporated by reference. The Static Pool Information shall
be provided in an electronic format that provides a permanent record of the
information provided, such as a portable document format (pdf) file, or other
such electronic format reasonably required by the Purchaser or the Depositor,
as applicable.
Promptly following notice or discovery of a material error
in Static Pool Information provided pursuant to the immediately preceding
paragraph (including an omission to include therein information required to be
provided pursuant to such paragraph), Indymac shall provide corrected Static
Pool Information to the Purchaser or any Depositor, as applicable, in the same
format in which Static Pool Information was previously provided to such party
by Indymac.
If so requested by the Purchaser or any Depositor, Indymac
shall provide (or, as applicable, cause each Third-Party Originator to
provide), at the expense of the requesting party (to the extent of any
additional incremental expense associated with delivery pursuant to this
Agreement), such agreed-upon procedures letters of certified public
accountants reasonably acceptable to the Purchaser or Depositor, as
applicable, pertaining to Static Pool Information relating to prior
securitized pools for securitizations closed on or after January 1, 2006 or,
in the case of Static Pool Information with respect to Indymac's or
Third-Party Originator's originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such letters shall be addressed to and be for the benefit
of such parties as the Purchaser or such Depositor shall designate, which may
include, by way of example, any Sponsor, any Depositor and any broker dealer
acting as underwriter, placement agent or initial purchaser with respect to a
Securitization Transaction. Any such statement or letter may take the form of
a standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(c) [Reserved]
-44-
(d) If so requested by the Purchaser or any Depositor for
the purpose of satisfying its reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, Indymac shall (or shall cause
each Third-Party Originator to) (i) notify the Purchaser and any Depositor in
writing of (A) any material litigation or governmental proceedings pending
against Indymac or any Third-Party Originator and (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between Indymac or any Third-Party Originator and any of the
parties specified in clause (D) of paragraph (a) of this Section (and any
other parties identified in writing by the requesting party) with respect to
such Securitization Transaction, and (ii) provide to the Purchaser and any
Depositor a description of such proceedings, affiliations or relationships.
Section 7.04 Indemnification; Remedies.
(a) Indymac shall indemnify the Purchaser, each affiliate of
the Purchaser, the Depositor and each of the following parties participating
in a Securitization Transaction: each sponsor and issuing entity; each Person
responsible for the preparation, execution or filing of any report required to
be filed with the Commission with respect to such Securitization Transaction,
or for execution of a certification pursuant to Rule 13a-14(d) or Rule
15d-14(d) under the Exchange Act with respect to such Securitization
Transaction; each broker dealer acting as underwriter, placement agent or
initial purchaser, each Person who controls any of such parties or the
Depositor (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act); and the respective present and former directors,
officers, employees and agents of each of the foregoing and of the Depositor,
and shall hold each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain
arising out of or based upon:
(i) (A) any untrue statement of a material fact contained or
alleged to be contained in any information, report, certification,
accountants' letter or other material provided under this Article
VII by or on behalf of Indymac, or provided in written or electronic
form under this Article VII by or on behalf of any Third-Party
Originator (collectively, the "Seller Information"), or (B) the
omission or alleged omission to state in Seller Information a
material fact required to be stated in Seller Information or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, by way of clarification, that clause (B) of this paragraph
shall be construed solely by reference to Seller Information and not
to any other information communicated in connection with a sale or
purchase of securities, without regard to whether Seller Information
or any portion thereof is presented together with or separately from
such other information;
(ii) any failure by Indymac or any Third-Party Originator to
deliver any information, report, certification, accountants' letter
or other material when and as required under this Article VII; or
(iii) any breach by Indymac of a representation or warranty set
forth in Section 7.02(a) or in a writing furnished pursuant to
Section 7.02(b) and made as of a date prior to the closing date of
the related Securitization Transaction, to the extent that
-45-
such breach is not cured by such closing date, or any breach by
Indymac of a representation or warranty in a writing furnished
pursuant to Section 7.02(b) to the extent made as of a date
subsequent to such closing date.
In the case of any failure of performance described in
clause (a)(ii) of this Section, Indymac shall promptly reimburse the
Purchaser, any Depositor, as applicable, and each Person responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction, for all costs
reasonably incurred by each such party in order to obtain the information,
report, certification, accountants' letter or other material not delivered as
required by Indymac or any Third-Party Originator.
(b) (i) Any failure by Indymac or any Third-Party Originator
to deliver any information, report, certification, accountants' letter or
other material when and as required under this Article VII, or any breach by
Indymac of a representation or warranty set forth in Section 7.02(a) or in a
writing furnished pursuant to Section 7.02(b) and made as of a date prior to
the closing date of the related Securitization Transaction, to the extent that
such breach is not cured by such closing date, or any breach by Indymac of a
representation or warranty in a writing furnished pursuant to Section 7.02(b)
to the extent made as of a date subsequent to such closing date, shall
immediately and automatically, without notice or grace period, constitute an
Event of Default with respect to Indymac under this Agreement and any
applicable Reconstitution Agreement, and shall entitle the Purchaser or
Depositor, as applicable, in its sole discretion to terminate the rights and
obligations of Indymac as servicer under the Servicing Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding anything
in this Agreement or any applicable Reconstitution Agreement to the contrary)
of any compensation to Indymac; provided that to the extent that any provision
of this Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following
termination of Indymac as servicer, such provision shall be given effect.
(SIGNATURE PAGE TO FOLLOW)
-46-
IN WITNESS WHEREOF, Indymac and the Purchaser have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the date first above written.
INDYMAC BANK, F.S.B.,
the Seller
By: ___________________________________
Name:
Title:
XXXXXXX XXXXX MORTGAGE COMPANY,
the Purchaser
By: Xxxxxxx Sachs Real Estate Funding Corp.,
General Partner
By: _______________________________________
Name:
Title:
EXHIBIT A
COLLATERAL DOCUMENTS
1. Mortgage Note: The original executed Mortgage Note endorsed, "Pay to
the order of ______________, without recourse", or as otherwise
directed by the Purchaser, and signed in the name of the Seller by an
officer of the Seller, or a lost note affidavit with a copy of the
original mortgage note attached; the Mortgage Note shall include all
intervening original endorsements showing a complete chain of title
from the originator to the Seller;
2. Assignment of Mortgage: Unless the Mortgage Loan is a MERS Mortgage
Loan, the original Assignment of Mortgage in blank.
3. Guarantee: Personal endorsement and/or guaranty agreements for all
non individual Mortgage Loans (corporations, partnerships, trusts,
estates, etc.).
4. Mortgage: The original executed Mortgage, or a certified copy
thereof, in either case with evidence of recording noted thereon; the
standard Xxxxxx Xxx/Xxxxxxx Mac Condominium Rider or PUD Rider must
be attached to the mortgage if the mortgaged property is a
condominium or is located in a PUD.
5. Modifications: Originals of all modification agreements, or certified
copies thereof, in either case with evidence of recording noted
thereon if recordation is required to maintain the lien of the
Mortgage or is otherwise required, or, if recordation is not so
required, an original or copy of any such modification agreement.
6. Intervening Assignments: Originals of any intervening assignments of
the mortgage necessary to show a complete chain of title from the
original mortgagee to the Seller, or certified copies thereof, in
either case with evidence of recording noted thereon; provided, that
such intervening assignments may be in the form of blanket
assignments, a copy of which, with evidence of recording noted
thereon, shall be acceptable.
7. Cooperative Loans: With respect to each Cooperative Loan: (i) an
original copy of the Cooperative Lease naming the Mortgagor, as
tenant, or an original copy of the assignment of the Cooperative
Lease to Mortgagor together with the original copy of all intervening
assignments showing a complete and unbroken chain of title from the
original tenant to Mortgagor and an original undated assignment, in
blank, of the Cooperative Lease executed by Mortgagor; (ii) the
original stock certificate in the name of the Mortgagor together with
an undated original stock power relating to such stock certificate
executed in blank by the Mortgagor; (iii) a fully executed original
recognition agreement in substantially the same form as a standard
"AZTECH" form and the original assignment thereof from Indymac to the
Purchaser together with the original copy of all intervening
assignments showing a complete and unbroken chain of title from the
originator of the Mortgage Loan to the Purchaser; (iv) copies of the
UCC-1 financing statement naming the originator of the Cooperative
Loan, as secured party, with evidence of recording thereon and, if
applicable, the executed UCC-3 financing statements
A-1
(Assignment) or other appropriate UCC financing statements required by
applicable state law evidencing a complete and unbroken chain of
title from the originator of the Cooperative Loan to Indymac, with
evidence of recording thereon, (v) an executed UCC-3 financing
statement (Assignment), or other appropriate UCC financing statement
required by applicable state law, evidencing the assignment by
Indymac to the Purchaser of its interest in the Cooperative Loan,
with evidence of recording thereon and (vi) a consent from the
cooperative corporation in connection with the Mortgagor's
acquisition of the coop apartment.
8. Power of Attorney: To the extent applicable, (x) an original power of
attorney, or a certified copy thereof, in either case with evidence
of recordation thereon if necessary to maintain the lien on the
Mortgage or if the document to which such power of attorney relates
is required to be recorded, or, if recordation is not so required, an
original or copy of such power of attorney, and (y) an original or
copy of any surety agreement or guaranty agreement.
9. Title Insurance: The original or copy of a policy of title insurance,
a certificate of title, or attorney's opinion of title (accompanied
by an abstract of title), as the case may be, with respect to each
Mortgage Loan.
10. Assumptions: for each Mortgage Loan with respect to which the
borrower's name as it appears on the note does not match the
borrower's name on the Mortgage Loan Schedule, one of the following:
(i) the original of the assumption agreement, or a certified copy
thereof, in either case with evidence of recording thereon if
required to maintain the lien of the mortgage or if otherwise
required, or, if recordation is not so required, an original or copy
of such assumption agreement; or (ii) a copy of a marriage
certificate, court order, decree or other document evidencing that
the two different names refer to the same person.
A-2
EXHIBIT B
FORM OF PURCHASE CONFIRMATION
[INDYMAC LETTERHEAD]
[DATE]
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Purchase Confirmation ($x.xmm) (Deal No. xxxx-xxx)
Ladies and Gentlemen:
This purchase confirmation (the "Purchase Confirmation") between IndyMac Bank,
F.S.B.,
("Indymac") and Xxxxxxx Sachs Mortgage Company ("Purchaser")
sets forth our agreement pursuant to which Purchaser is purchasing, and
Indymac is selling, on a servicing-retained basis, those certain mortgage
loans identified in Exhibit A hereto and more particularly described herein
(the "Mortgage Loans").
The purchase, sale and servicing of the Mortgage Loans as
contemplated herein shall be governed by that certain Second Amended and
Restated Master Mortgage Loan Purchase Agreement dated as of March 1, 2006,
between Indymac and Purchaser (as amended herein and otherwise, the
"Agreement"). By executing this Purchase Confirmation, each of Indymac and
Purchaser again makes, with respect to itself and each Mortgage Loan, as
applicable, all of the covenants, representations and warranties made by each
such party in the Agreement, except as the same may be amended by this
Purchase Confirmation.
All exhibits hereto are incorporated herein in their
entirety. In the event there exists any inconsistency between the Agreement
and this Purchase Confirmation, the latter shall be controlling
notwithstanding anything contained in the Agreement to the contrary. All
capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Agreement.
1. Assignment and Conveyance of Mortgage Loans. Upon
Purchaser's payment of the Purchase Proceeds in accordance with Section 2.08
of the Agreement, Indymac shall sell, transfer, assign and convey to
Purchaser, without recourse, but subject to the terms of the Purchase
Confirmation and the Agreement, all of the right, title and interest of
Indymac in and to the Mortgage Loans, excluding the servicing rights relating
thereto. Each Mortgage Loan shall be serviced by Indymac pursuant to the terms
of the Agreement.
B-1
2. Defined Terms. As used in the Agreement, the following
defined terms shall have meanings set forth below with respect to the related
Mortgage Loan Package.
(a) Closing Date: [DATE].
(b) Cut-off Date: [DATE].
(c) Cut-off Date Balance:
(d) [Index: On each Interest Adjustment Date, the applicable
index rate shall be a rate per annum equal to ----- [the weekly
average yield on U.S. Treasury securities adjusted to a constant
maturity of one year, as published by the Board of Governors of the
Federal Reserve System in Statistical Release No. H.15] [the average
of interbank offered rates for six-month U.S. dollar denominated
deposits in the London market (LIBOR), as published [in the Wall
Street Journal] [by Xxxxxx Xxx] [the 11th District Cost of Funds as
made available by the Federal Home Loan Bank] [the weekly average
yield on certificates of deposit adjusted to a constant maturity of
six months as published by the Board of Governors of the Federal
Reserve System in Statistical Release No. H.15 or a similar
publication.]]
(e) Missing Credit Documents: As set forth in Exhibit [C]
hereto.
Notwithstanding anything contained in Section 2.04 of the Agreement to the
contrary, Indymac's obligation to repurchase from the Purchaser the Mortgage
Loan related to a Missing Credit Document shall occur only in the event of a
default by a Mortgagor or any material impairment of the Mortgaged Property
directly arising a breach of Indymac's obligation to deliver the Missing
Credit Document within the time specified in Section 2.04 of the Agreement.
(f) Pending Mortgage Loans: As set forth in Exhibit [C]
hereto.]
(g) Purchase Proceeds: With respect to [the Mortgage Loans]
[each Mortgage Loan], and as set forth in Exhibit [A] and Exhibit [B] hereto,
the sum of (a) the product of (i) the Cut-off Date Balance of [such Mortgage
Loan] [such Mortgage Loans], and (ii) the purchase price percentage set forth
in Exhibit [A] hereto for such [Mortgage Loan] [Mortgage Loans], and (b)
accrued interest from the Cut-off Date through the day prior to the Closing
Date, inclusive.
(h) Servicing Fee Rate: [0.25%] [0.375%] [With respect to
the period prior to the initial Interest Adjustment Date, [0.25]% and,
thereafter, [0.375]%].
3. Description of Mortgage Loans. Each Mortgage Loan
complies with the specifications set forth below in all material respects.
(a) Loan Type: Each Mortgage Loan is a [Adjustable Rate]
[Balloon] [Fixed Rate] Mortgage Loan.
(b) Lien Position: Each Mortgage Loan is secured by a
perfected [first] [second] lien Mortgage.
B-2
(c) Underwriting Criteria: Each Mortgage Loan [was
underwritten generally in accordance with Indymac's credit
underwriting guidelines in effect at the time such Mortgage Loan was
originated][conforms to the Xxxxxx Mae or Xxxxxxx Mac mortgage
eligibility criteria (as such criteria applies to Indymac) and is
eligible for sale to, and securitization by, Xxxxxx Mae or Xxxxxxx
Mac] [at the time of origination was underwritten to guidelines which
are consistent with an institutional investor-quality mortgage loan].
B-3
Kindly acknowledge your agreement to the terms of this
Purchase Confirmation by signing in the appropriate space below and returning
this Purchase Confirmation to the undersigned. Telecopy signatures shall be
deemed valid and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
INDYMAC BANK, F.S.B., XXXXXXX SACHS MORTGAGE COMPANY
By: _________________________ By: _________________________________
Name: Name:
Title: Title:
B-4
EXHIBIT A
to
PURCHASE CONFIRMATION
MORTGAGE LOAN SCHEDULE
(attached)
B-A-1
EXHIBIT B
to
PURCHASE CONFIRMATION
CALCULATION OF PURCHASE PROCEEDS
(attached)
B-B-1
EXHIBIT C
to
PURCHASE CONFIRMATION
MISSING CREDIT DOCUMENTS
LOAN COUNT LOAN NUMBER DOCUMENT
--------------------------- ------------------------------------ --------------
1.
2.
3.
4.
5.
B-C-1
EXHIBIT D
to
PURCHASE CONFIRMATION
PENDING MORTGAGE LOANS
LOAN COUNT LOAN NUMBER DOCUMENT
---------------------------- ------------------------- ------------------------
1.
2.
3.
4.
5.
X-X-0
XXXXXXX X
[XXXXXXXX]
X-0
XXXXXXX X
FORM OF TRADE CONFIRMATION
[INDYMAC LETTERHEAD]
[DATE]
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Sale of $[AMOUNT] Million of Mortgage Loans to Xxxxxxx Xxxxx
Mortgage Company (Deal No. yrmm-xxx)
-------------------------------------------------------------
Ladies and Gentlemen:
This Trade Confirmation confirms the agreement between
Xxxxxxx Sachs Mortgage Company ("Purchaser") and IndyMac Bank, F.S.B.
("Indymac") pursuant to which Purchaser has agreed to purchase, and Indymac
has agreed to sell, those certain mortgage loans [identified] [summarized] in
Exhibit A hereto (the "Mortgage Loans"), subject to the terms set forth
herein.
Closing Date: _________ __, [year] [, provided, however, that the
parties shall use their best efforts to consummate the
transaction prior to [DATE].
Commitment Amount: $______________.
Purchase Price: $______________.
Percentage: ____%, subject to adjustment as set forth in Exhibit A.
[Loan-level pricing as set forth in Exhibit A.]
Product: [Jumbo]["A"]["A-"]["Alt A"][Sub-prime][Conforming][fixed]
[(x/1) Index adjustable] rate mortgage loans]. (undefined
terms should not be capitalized)
Underwriting Criteria:
Servicing Rights: RETAINED: Retained by Indymac and serviced on a
[scheduled/scheduled][actual/actual] [scheduled][actual]
basis for the servicing fee rate [equal to FEE% per
annum][set forth in Exhibit A [for each Mortgage Loan]].
[With respect to the period prior to the initial Interest
Adjustment Date, 0.25% and, thereafter, 0.375%].
D-1
Prepayment Penalties: [Indymac] [Purchaser] shall be entitled to
any penalties resulting from the prepayment
of any Mortgage Loans by the related
mortgagor(s).
Documentation: [Assignment of a [type of agreement]]
[Industry standard purchase and servicing
agreement.]
Conditions: [Review of Mortgage Loans by Purchaser to
confirm conformance with this Trade
Confirmation. Indymac may, at its option,
elect to substitute comparable mortgage
loans for any Mortgage Loans rejected by
Purchaser pursuant to the preceding
sentence.]
[Indymac's sale of the Mortgage Loans is
expressly subject to (a) the review of the
Mortgage Loans by Purchaser to confirm
conformance with the Trade Confirmation, and
(b) purchase of the Mortgage Loans by
Indymac on or before the Closing Date from
the current owner of the Mortgage Loans (the
"Current Owner"). If either of the foregoing
conditions are not satisfied, Indymac shall
have no liability to Purchaser.]
Non-Circumvent: Indymac and Purchaser understand and agree
that Indymac may introduce the owner of
the Mortgage Loans to Purchaser, that the
Current Owner is a customer of Indymac
and that such relationship of Indymac is
confidential. Purchaser agrees, with
respect to the Current Owner, Purchaser will
not, for the purpose of purchasing
other mortgage loans [for a period of one
year from the Closing Date], communicate
with or purchase such other mortgage loans
from the Current Owner unless the Current
Owner has had previous business dealings
(other than any transactions involving
Indymac) with the Current Owner in a similar
context.
D-2
Please acknowledge your agreement to the terms and conditions of this
Trade Confirmation by signing in the appropriate space below and returning a
copy of the same to the undersigned. Telecopy signatures shall be deemed valid
and binding to the same extent as the original.
Sincerely, Agreed to and Accepted by:
INDYMAC BANK, F.S.B., XXXXXXX XXXXX MORTGAGE COMPANY
By: _____________________________ By: __________________________________
Name: [________] Name:
Title: [Executive Vice President] Title:
D-3
EXHIBIT A
MORTGAGE LOAN SCHEDULE AND PRICING INFORMATION
(attached)
D-A-1
EXHIBIT B
UNDERWRITING GUIDELINES
(attached)
D-B-1
EXHIBIT E
CONTENTS OF EACH MORTGAGE FILE
(a) Copies of the Mortgage Loan Documents.
(b) Residential loan application.
(c) Mortgage Loan closing statement.
(d) Verification of employment and income, if required.
(e) Verification of acceptable evidence of source and amount
of down payment.
(f) Credit report on Mortgagor, in a form acceptable to
either Xxxxxx Mae or Xxxxxxx Mac.
(g) Residential appraisal report.
(h) Photograph of the Mortgaged Property.
(i) Survey of the Mortgaged Property, unless a survey is not
required by the title insurer.
(j) Copy of each instrument necessary to complete
identification of any exception set forth in the exception schedule in the
title policy, i.e., map or plat, restrictions, easements, home owner
association declarations, etc.
(k) Copies of all required disclosure statements.
(l) If applicable, termite report, structural engineer's
report, water potability and septic certification.
(m) Sales Contract, if applicable.
(n) The Primary Mortgage Insurance Policy or certificate of
insurance or electronic notation of the existence of such policy, where
required pursuant to the Agreement.
(o) Evidence of electronic notation of the hazard insurance
policy, and, if required by law, evidence of the flood insurance policy.
(p) Evidence of payment of taxes and insurance premiums,
insurance claim files, correspondence, current and historical computerized
data files, and all other processing, underwriting and closing papers and
records which are customarily contained in a mortgage loan file and which are
required to document the Mortgage Loan or to service the Mortgage Loan.
(q) Amortization schedule, if available.
E-1
CWT DRAFT 6/15/06
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of June 1, 2006 ("Amendment"), to the
Second Amended and Restated Master Mortgage Loan Purchase Agreement, dated as
of March 1, 2006, and as further amended, modified and supplemented from time
to time (the "Purchase Agreement"), between XXXXXXX SACHS MORTGAGE COMPANY
(the "Purchaser") and INDYMAC BANK, F.S.B. (the "Seller").
RECITALS
WHEREAS, the parties hereto have entered into the Purchase Agreement;
WHEREAS, the parties hereto desire to modify the Purchase Agreement
as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined
in the Purchase Agreement are used herein as therein defined.
2. Amendments.
(a) Amendment of the Definition of High Cost Loan. Section 1 of the
Purchase Agreement is hereby amended by deleting the definition of "High Cost
Loan" therein in its entirety and replacing it with the following definition:
"High Cost Loan: A Mortgage Loan classified as (a) a "high cost"
loan under the Home Ownership and Equity Protection Act of 1994
("HOEPA"), (b) with an "annual percentage rate" or total "points
and fees" payable by the related Mortgagor (as each such term is
calculated under HOEPA) that exceed the thresholds set forth by
HOEPA and its implementing regulations, including 12 C.F.R. ss.
226.32(a)(1)(i) and (ii), (c) classified as a "high cost home,"
"threshold," "covered," "high risk home," "predatory" or similar
loan under any other applicable state, federal or local law (or a
similarly classified loan using different terminology under a law
imposing heightened regulatory scrutiny or additional legal
liability for residential mortgage loans having high interest
rates, points and/or fees) or (d) a Mortgage Loan categorized as
High Cost pursuant to Appendix E of Standard & Poor's Glossary.
For avoidance of doubt, the parties agree that this definition
shall apply to any law regardless of whether such law is
presently, or in the future becomes, the subject of judicial
review or litigation.
(b) Amendment of the Definition of Mortgage Loan Schedule. Section 1
of the Purchase Agreement is hereby amended by adding the following as clause
(34) to the definition of "Mortgage Loan Schedule":
"and (34) with respect to each Option ARM Mortgage Loan, (a) a
detailed transaction history indicating how all payments were
applied, (b) the total negative amortization amount as of the
Closing Date and (c) all adjustable rate change histories."
(c) Amendment of the Definition of Option Arm Mortgage Loan. Section
1 of the Purchase Agreement is hereby amended by adding the definition of
"Option Arm Mortgage Loan" therein in its entirety:
"Option ARM Mortgage Loan: An adjustable rate Mortgage Loan that
(i) requires a fixed monthly payment through maturity based on the
initial interest rate and an either 30 or 40 year amortization
schedule, (ii) all interest accrued in excess of such initial
interest rate after any adjustment date is capitalized and (iii)
the borrower is not prohibited at any time from making additional
payments of principal and/or interest."
(d) Amendment of Compliance with Applicable Law Representation.
Subsection 3.02(g) of the Purchase Agreement is hereby amended by deleting it
in its entirety and replacing it with the following:
"Compliance with Applicable Laws.
Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real
estate settlement procedures, consumer credit protection,
predatory, abusive and fair lending laws, equal credit opportunity
and disclosure laws or unfair and deceptive practices laws
applicable to the Mortgage Loan including, without limitation, any
provisions relating to prepayment penalties, have been complied
with, the consummation of the transactions contemplated hereby
will not involve the violation of any such laws or regulations,
and the Seller shall maintain in its possession, available for the
Purchaser's inspection, and shall deliver to the Purchaser upon
demand, evidence of compliance with all such requirements. This
representation and warranty is a Deemed Material Breach
Representation;"
(e) Amendment of No Credit Insurance Policies. Subsection 3.02(ss) of
the Purchase Agreement is hereby amended by deleting it in its entirety and
replacing it with the following:
"Single-premium Credit Life Insurance Policy.
In connection with the origination of any Mortgage Loan, no
proceeds from any Mortgage Loan were used to finance or acquire a
single-premium credit life insurance policy. No Mortgagor was
required to purchase any single premium credit insurance policy
(e.g., life, disability, accident, unemployment or property
insurance product) or debt cancellation agreement as a condition
of obtaining the extension of credit. No Mortgagor obtained a
prepaid single premium credit insurance policy (e.g., life,
disability, accident, unemployment or property insurance policy)
in connection with the origination of the Mortgage Loan; no
2
proceeds from any Mortgage Loan were used to purchase single
premium credit insurance policies or debt cancellation agreements
as part of the origination of, or as a condition to closing, such
Mortgage Loan. This representation and warranty is a Deemed
Material Breach Representation;"
(f) Amendment of Mortgage Loans with Prepayment Premiums
Representation. Subsection 3.02(tt) of the Purchase Agreement is hereby
amended by deleting it in its entirety and replacing it with the following:
"Prepayment Penalty.
The Mortgage Loan is subject to a prepayment penalty as provided
in the related Mortgage Note except as set forth on the related
Mortgage Loan Schedule. With respect to each Mortgage Loan that
has a prepayment penalty feature, each such prepayment penalty is
enforceable and will be enforced by the Seller for the benefit of
the Purchaser, and each prepayment penalty is permitted pursuant
to federal, state and local law. Each such prepayment penalty is
in an amount not more than the maximum amount permitted under
applicable law and no such prepayment penalty may provide for a
term in excess of five (5) years with respect to Mortgage Loans
originated prior to October, 1, 2002. With respect to Mortgage
Loans originated on or after October 1, 2002, the duration of the
prepayment penalty period shall not exceed three (3) years from
the date of the Mortgage Note unless the Mortgage Loan was
modified to reduce the prepayment penalty period to no more than
three (3) years from the date of such Mortgage Loan and the
Mortgagor was notified in writing of such reduction in prepayment
penalty period. With respect to any Mortgage Loan that contains a
provision permitting imposition of a penalty upon a prepayment
prior to maturity: (i) the Mortgage Loan provides some benefit to
the Mortgagor (e.g., a rate or fee reduction) in exchange for
accepting such prepayment penalty, (ii) the Mortgage Loan's
originator had a written policy of offering the Mortgagor or
requiring third-party brokers to offer the Mortgagor, the option
of obtaining a mortgage loan that did not require payment of such
a penalty and (iii) the prepayment penalty was adequately
disclosed to the Mortgagor in the mortgage loan documents pursuant
to applicable state, local and federal law. This representation
and warranty is a Deemed Material Breach Representation;"
(g) Amendment of Underwriting Methodology Representation. Subsection
3.02(kkk) of the Purchase Agreement is hereby amended by deleting it in its
entirety and replacing it with the following:
"Underwriting Methodology.
The methodology used in underwriting the extension of credit for
each Mortgage Loan does not rely on the extent of the Mortgagor's
equity in the collateral as the principal determining factor in
approving such extension of credit. The methodology employed
objective criteria that related such facts as, without limitation,
the Mortgagor's credit history, income, assets or liabilities, to
the
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proposed mortgage payment and, based on such methodology, the
Mortgage Loan's originator made a reasonable determination that at
the time of origination the Mortgagor had the ability to make
timely payments on the Mortgage Loan. Such underwriting
methodology confirmed that at the time of origination
(application/approval) the Mortgagor had a reasonable ability to
make timely payments on the Mortgage Loan. This representation and
warranty is a Deemed Material Breach Representation;"
(h) Amendment of Origination Practices Representation. Subsection
3.02(ooo) of the Purchase Agreement is hereby amended by deleting it in its
entirety and replacing it with the following:
"Origination Practices.
The Mortgagor was not encouraged or required to select a Mortgage
Loan product offered by the Mortgage Loan's originator which is a
higher cost product designed for less creditworthy borrowers,
unless at the time of the Mortgage Loan's origination, such
Mortgagor did not qualify taking into account such facts as,
without limitation, the Mortgage Loan's requirements and the
Mortgagor's credit history, income, assets and liabilities and
debt-to-income ratios for a lower-cost credit product then offered
by the Mortgage Loan's originator or any affiliate of the Mortgage
Loan's originator. If, at the time of loan application, the
Mortgagor may have qualified for a lower-cost credit product then
offered by any mortgage lending affiliate of the Mortgage Loan's
originator, the Mortgage Loan's originator referred the
Mortgagor's application to such affiliate for underwriting
consideration. For a Mortgagor who seeks financing through a
Mortgage Loan originator's higher-priced subprime lending channel,
the Mortgagor was directed towards or offered the Mortgage Loan
originator's standard mortgage line if the Mortgagor was able to
qualify for one of the standard products. This representation and
warranty is a Deemed Material Breach Representation;"
(i) Amendment of Option Arm Mortgage Loans. Subsection 3.02(ppp) of
the Purchase Agreement is hereby amended by adding the following in its
entirety:
"Option Arm Mortgage Loans.
With respect to each Option ARM Mortgage Loan, (a) the Mortgage
Loan Schedule accurately reflects any prior negative amortization
and (b) such Option ARM Mortgage Loans were serviced in accordance
with Accepted Servicing Practices and all payment histories are
set forth on the Mortgage Loan Schedule that would be required to
service the Option ARM Mortgage Loans after the Closing Date in
accordance with Accepted Servicing Practices."
(j) Amendment of Manufactured Housing Representation. Subsection
3.02(qqq) of the Purchase Agreement is hereby amended by adding the following
in its entirety:
"Manufactured Housing.
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With respect to any Mortgage Loan secured by a Mortgaged Property
improved by manufactured housing, (i) the related manufactured
housing unit is permanently affixed to the land, (ii) the related
manufactured housing unit and the related land are subject to a
Mortgage properly filed in the appropriate public recording office
and naming the Seller as mortgagee, (iii) the related Mortgaged
Property is not located in the state of New Jersey and (iv) as of
the origination date of the related Mortgage Loan, the related
manufactured housing unit that secures such Mortgage Loan either:
(x) was the principal residence of the Mortgagor or (y) was
classified as real property under applicable state law. This
representation and warranty is a Deemed Material Breach
Representation;"
(k) Amendment of Second Lien Mortgage Loan Representation. Subsection
3.02(rrr) of the Purchase Agreement is hereby amended by adding the following
in its entirety:
"Second Lien Mortgage Loans. With respect to each Second Lien
Mortgage Loan:
a. No Negative Amortization of Related First Lien Loan. The
related first lien loan does not permit negative amortization;
b. Request for Notice; No Consent Required. Where required
or customary in the jurisdiction in which the Mortgaged Property
is located, the original lender has filed for record a request for
notice of any action by the related senior lienholder, and the
Seller has notified such senior lienholder in writing of the
existence of the Second Lien Mortgage Loan and requested
notification of any action to be taken against the Mortgagor by
such senior lienholder. Either (a) no consent for the Second Lien
Mortgage Loan is required by the holder of the related first lien
loan or (b) such consent has been obtained and is contained in the
related Mortgage File;
c. No Default Under First Lien. To the best of Seller's
knowledge, the related first lien loan is in full force and
effect, and there is no default lien, breach, violation or event
which would permit acceleration existing under such first lien
mortgage or mortgage note, and no event which, with the passage of
time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event
which would permit acceleration under such first lien loan;
d. Right to Cure First Lien. The related first lien mortgage
contains a provision which provides for giving notice of default
or breach to the mortgagee under the Mortgage Loan and allows such
mortgagee to cure any default under the related first lien
mortgage; and
e. Principal Residence. The related Mortgaged Property is
the Mortgagor's principal residence.
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This representation and warranty is a Deemed Material and Adverse
Representation."
3. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY NEW YORK LAW
WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered as of the day and year first above written.
SELLER:
INDYMAC BANK, F.S.B.
By:____________________________________
Name:
Title:
PURCHASER:
XXXXXXX XXXXX MORTGAGE COMPANY, a New
York limited partnership, as
Purchaser
By: XXXXXXX SACHS REAL ESTATE
FUNDING CORP., a New York
corporation, its General Partner
By:_________________________________
Name:
Title:
