GS MORTGAGE SECURITIES CORP., Depositor, INDYMAC BANK, F.S.B., Servicer, AMERICAN HOME MORTGAGE SERVICING, INC., Servicer, OCWEN LOAN SERVICING, LLC, Servicer, WELLS FARGO BANK, N.A., Master Servicer and Securities Administrator, and DEUTSCHE BANK...
GS
MORTGAGE SECURITIES CORP.,
Depositor,
INDYMAC
BANK, F.S.B.,
Servicer,
AMERICAN
HOME MORTGAGE SERVICING, INC.,
Servicer,
OCWEN
LOAN SERVICING, LLC,
Servicer,
XXXXX
FARGO BANK, N.A.,
Master
Servicer and Securities Administrator,
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
_____________________________________________
Dated
as
of June 1, 2006
_____________________________________________
MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES
2006-S4
TABLE
OF
CONTENTS
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section
2.01 Conveyance
of Mortgage Loans
Section
2.02 Acceptance
by the Trustee of the Mortgage Loans
Section
2.03 Representations,
Warranties and Covenants of the Servicers and the Trustee
Section
2.04 [RESERVED].
Section
2.05 Execution
and Delivery of Certificates
Section
2.06 REMIC
Matters
Section
2.07 Representations
and Warranties of the Depositor
Section
2.08 Enforcement
of Obligations for Breach of Mortgage Loan Representations
Section
2.09 Purposes
and Powers of the Trust. The purpose of the common law trust, as created
hereunder, is to engage in the following activities:
ARTICLE
III
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
3.01 Servicers
to Service Mortgage Loans
Section
3.02 Subservicing
Agreements between a Servicer and Subservicers
Section
3.03 Successor
Subservicers
Section
3.04 Liability
of the Servicer
Section
3.05 No
Contractual Relationship between Subservicers, the Trustee and the Master
Servicer
Section
3.06 Assumption
or Termination of Subservicing Agreements by Master Servicer
Section
3.07 Collection
of Certain Mortgage Loan Payments
Section
3.08 Subservicing
Accounts
Section
3.09 [Reserved].
Section
3.10 Collection
Account
Section
3.11 Withdrawals
from the Collection Account
Section
3.12 Investment
of Funds in the Collection Account and the Distribution Account
Section
3.13 Maintenance
of Hazard Insurance, Errors and Omissions and Fidelity Coverage
Section
3.14 Enforcement
of Due-on-Sale Clauses; Assumption Agreements
Section
3.15 Realization
upon Defaulted Mortgage Loans
Section
3.16 Release
of Mortgage Files
Section
3.17 Title,
Conservation and Disposition of REO Property
Section
3.18 [RESERVED].
Section
3.19 Access
to
Certain Documentation and Information Regarding the Mortgage Loans
Section
3.20 Documents,
Records and Funds in Possession of the Servicer to Be Held for the Securities
Administrator for the Benefit of the Trustee
Section
3.21 Servicing
Compensation
Section
3.22 Annual
Statement as to Compliance
Section
3.23 Assessments
of Compliance and Attestation Reports
Section
3.24 Master
Servicer to Act as Servicer
Section
3.25 Compensating
Interest
Section
3.26 Credit
Reporting; Xxxxx-Xxxxx-Xxxxxx Act
Section
3.27 Excess
Reserve Fund Account; Distribution Account
Section
3.28 Optional
Purchase of Delinquent Mortgage Loans
ARTICLE
IV
DISTRIBUTIONS
AND ADVANCES BY THE SERVICER
Section
4.01 Advances
Section
4.02 Priorities
of Distribution
Section
4.03 Monthly
Statements to Certificateholders
Section
4.04 Certain
Matters Relating to the Determination of LIBOR
Section
4.05 Allocation
of Applied Realized Loss Amounts
Section
4.06 Distributions
on the REMIC I Regular Interests.
ARTICLE
V
THE
CERTIFICATES
Section
5.01 The
Certificates
Section
5.02 Certificate
Register; Registration of Transfer and Exchange of Certificates
Section
5.03 Mutilated,
Destroyed, Lost or Stolen Certificates
Section
5.04 Persons
Deemed Owners
Section
5.05 Access
to
List of Certificateholders’ Names and Addresses
Section
5.06 Maintenance
of Office or Agency
ARTICLE
VI
THE
DEPOSITOR AND THE SERVICER
Section
6.01 Respective
Liabilities of the Depositor and the Servicers
Section
6.02 Merger
or
Consolidation of the Depositor or a Servicer
Section
6.03 Limitation
on Liability of the Depositor, the Servicers and Others
Section
6.04 Limitation
on Resignation of a Servicer
Section
6.05 Additional
Indemnification by the Servicers; Third Party Claims
ARTICLE
VII
DEFAULT
Section
7.01 Events
of
Default
Section
7.02 Master
Servicer to Act; Appointment of Successor Servicer
Section
7.03 Notification
to Certificateholders
ARTICLE
VIII
CONCERNING
THE TRUSTEE
Section
8.01 Duties
of
the Trustee
Section
8.02 Certain
Matters Affecting the Trustee
Section
8.03 Trustee
Not Liable for Certificates or Mortgage Loans
Section
8.04 Trustee
May Own Certificates
Section
8.05 Trustee’s
Fees and Expenses
Section
8.06 Eligibility
Requirements for the Trustee
Section
8.07 Resignation
and Removal of the Trustee
Section
8.08 Successor
Trustee
Section
8.09 Merger
or
Consolidation of the Trustee
Section
8.10 Appointment
of Co-Trustee or Separate Trustee
Section
8.11 Tax
Matters
Section
8.12 Periodic
Filings
Section
8.13 Tax
Classification of the Excess Reserve Fund Account
Section
8.14 Intention
of the Parties and Interpretation
ARTICLE
IX
ADMINISTRATION
OF THE MORTGAGE LOANS BY THE MASTER SERVICER
Section
9.01 Duties
of
the Master Servicer; Enforcement of Servicer’s Obligations.
Section
9.02 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
Section
9.03 Representations
and Warranties of the Master Servicer.
Section
9.04 Master
Servicer Events of Default.
Section
9.05 Waiver
of
Default.
Section
9.06 Successor
to the Master Servicer.
Section
9.07 Compensation
of the Master Servicer.
Section
9.08 Merger
or
Consolidation.
Section
9.09 Resignation
of the Master Servicer.
Section
9.10 Assignment
or Delegation of Duties by the Master Servicer.
Section
9.11 Limitation
on Liability of the Master Servicer.
Section
9.12 Indemnification;
Third Party Claims.
ARTICLE
X
CONCERNING
THE SECURITIES ADMINISTRATOR
Section
10.01 Duties
of
Securities Administrator.
Section
10.02 Certain
Matters Affecting the Securities Administrator.
Section
10.03 Securities
Administrator Not Liable for Certificates or Mortgage Loans.
Section
10.04 Securities
Administrator May Own Certificates.
Section
10.05 Securities
Administrator’s Fees and Expenses.
Section
10.06 Eligibility
Requirements for Securities Administrator.
Section
10.07 Resignation
and Removal of Securities Administrator.
Section
10.08 Successor
Securities Administrator.
Section
10.09 Merger
or
Consolidation of Securities Administrator.
Section
10.10 Assignment
or Delegation of Duties by the Securities Administrator.
ARTICLE
XI
TERMINATION
Section
11.01 Termination
upon Liquidation or Purchase of the Mortgage Loans
Section
11.02 Final
Distribution on the Certificates
Section
11.03 Additional
Termination Requirements
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.01 Amendment
Section
12.02 Recordation
of Agreement; Counterparts
Section
12.03 Governing
Law
Section
12.04 Intention
of Parties
Section
12.05 Notices
Section
12.06 Severability
of Provisions
Section
12.07 Assignment;
Sales; Advance Facilities
Section
12.08 Limitation
on Rights of Certificateholders
Section
12.09 Inspection
and Audit Rights
Section
12.10 Certificates
Nonassessable and Fully Paid
Section
12.11 Waiver
of
Jury Trial
Section
12.12 Limitation
of Damages
SCHEDULES
Schedule
I
|
Mortgage
Loan Schedule
|
Schedule
II
|
Representations
and Warranties of Ocwen, as Servicer
|
Schedule
III
|
Representations
and Warranties of American Home Mortgage Servicing, Inc., as
Servicer
|
Schedule
IV
|
Representations
and Warranties of IndyMac Bank F.S.B., as
Servicer
|
EXHIBITS
Exhibit
A
|
Form of
Class A, Class M and Class B
Certificates
|
Exhibit
B
|
Form of
Class P Certificate
|
Exhibit
C-1
|
Form of
Class R Certificate
|
Exhibit
C-2
|
Form
of Class RC Certificate
|
Exhibit
D-1
|
Form of
Class X Certificate
|
Exhibit
D-2
|
Form
of Class X-1 Certificate
|
Exhibit
E
|
Form of
Initial Certification of the Trustee
|
Exhibit
F
|
Form of
Document Certification and Exception Report of the
Trustee
|
Exhibit
G
|
Form of
Residual Transfer Affidavit
|
Exhibit
H
|
Form of
Transferor Certificate
|
Exhibit
I-1
|
Form of
Rule 144A Letter
|
Exhibit
I-2
|
Form
of Investment Letter (Non Rule 144A)
|
Exhibit
J
|
Form of
Request for Release
|
Exhibit
K
|
Contents
of Each Mortgage File
|
Exhibit
L
|
[Reserved]
|
Exhibit
M
|
Form
of Certification to be provided with Form 10-K
|
Exhibit
N
|
Form
of Securities Administrator Certification to be provided to
Depositor
|
Exhibit
O-1
|
Form
of Servicer Certification to be provided to Depositor
|
Exhibit
O-2
|
Form
of Subservicer Certification to be provided to
Depositor
|
Exhibit
O-3
|
Form
of Master Servicer Certification to be provided to
Depositor
|
Exhibit
P
|
Form
of Power of Attorney
|
Exhibit
Q-1
|
Fremont
Agreements
|
Exhibit
Q-2
|
IndyMac
Agreements
|
Exhibit
Q-3
|
American
Home Agreements
|
Exhibit
R
|
Servicing
Criteria to Be Addressed in Assessment of Compliance
|
Exhibit
S
|
Additional
Form 10-D Disclosure
|
Exhibit
T
|
Additional
Form 10-K Disclosure
|
Exhibit
U
|
Form
8-K Disclosure Information
|
Exhibit
V
|
Yield
Maintenance Agreement
|
Exhibit
W
|
Form
of Delinquency Report
|
Exhibit
X
|
Form
of Realized Loss/Gain Report
|
Exhibit
Y
|
Additional
Disclosure Notification
|
THIS
POOLING AND SERVICING AGREEMENT, dated
as
of June 1, 2006, is among GS MORTGAGE SECURITIES CORP., a Delaware
corporation (the “Depositor”), INDYMAC BANK, F.S.B., a federally chartered
savings bank, as a servicer (“IndyMac”), AMERICAN HOME MORTGAGE SERVICING, INC.,
a Maryland corporation, as a servicer (“AHMSI”), OCWEN LOAN SERVICING, LLC, a
Delaware limited liability company, as a servicer (“Ocwen”, and together with
IndyMac and AHMSI, the “Servicers”), XXXXX FARGO BANK, N.A., a national banking
association (“Xxxxx Fargo”) as master servicer (in such capacity, the “Master
Servicer”) and securities administrator (in such capacity, the “Securities
Administrator”), and DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking
association, as trustee (the “Trustee”).
W
I T
N E S S E T H:
In
consideration of the mutual agreements herein contained, the parties hereto
agree as follows:
PRELIMINARY
STATEMENT
The
Depositor intends to sell pass-through certificates to be issued hereunder
in
multiple classes, which in the aggregate will evidence the entire beneficial
ownership interest of the Trust Fund created hereunder. The Trust Fund will
consist of a segregated pool of assets comprised of the Mortgage Loans and
certain other related assets subject to this Agreement.
REMIC
I
As
provided herein, the Securities
Administrator will
elect to treat the segregated pool of assets consisting of the Mortgage Loans
and certain other related assets subject to this Agreement (other than the
Prepayment Premiums, the Excess Reserve Fund Account and the Yield Maintenance
Agreement) as a REMIC for federal income tax purposes, and such segregated
pool
of assets will be designated as “REMIC I”. The Class RC Certificates will be the
sole class of “residual interests” in REMIC I for purposes of the REMIC
Provisions (as defined herein). The following table irrevocably sets forth
the
designation, the REMIC I Remittance Rate, the initial Uncertificated Balance
and, for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for each
of the REMIC I Regular Interests (as defined herein). None of the REMIC I
Regular Interests will be certificated.
Designation
|
REMIC
I
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date (1)
|
I-LTAA
|
Variable(2)
|
$639,491,126.39
|
May
25, 2036
|
I-LTA1
|
Variable(2)
|
$3,402,830.00
|
May
25, 2036
|
I-LTA2
|
Variable(2)
|
$1,001,160.00
|
May
25, 2036
|
I-LTA3
|
Variable(2)
|
$202,950.00
|
May
25, 2036
|
I-LTM1
|
Variable(2)
|
$701,480.00
|
May
25, 2036
|
I-LTM2
|
Variable(2)
|
$127,250.00
|
May
25, 2036
|
I-LTM3
|
Variable(2)
|
$296,910.00
|
May
25, 2036
|
I-LTM4
|
Variable(2)
|
$127,240.00
|
May
25, 2036
|
I-LTM5
|
Variable(2)
|
$117,460.00
|
May
25, 2036
|
I-LTM6
|
Variable(2)
|
$104,410.00
|
May
25, 2036
|
I-LTM7
|
Variable(2)
|
$104,400.00
|
May
25, 2036
|
I-LTB1
|
Variable(2)
|
$123,990.00
|
May
25, 2036
|
I-LTB2
|
Variable(2)
|
$88,090.00
|
May
25, 2036
|
I-LTZZ
|
Variable(2)
|
$6,652,669.31
|
May
25, 2036
|
___________________________
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the month immediately following the maturity
date
for the Mortgage Loan with the latest maturity date has been designated
as
the “latest possible maturity date” for each REMIC I Regular
Interest.
|
(2)
|
Calculated
in accordance with the definition of “REMIC I Remittance Rate”
herein.
|
REMIC
II
As
provided herein, the Securities Administrator will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC II.” The Class R Certificates will evidence the sole class
of “residual interests” in REMIC II for purposes of the REMIC Provisions. The
following table irrevocably sets forth the designation, the Pass-Through Rate,
the initial aggregate Certificate Balance and, for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest possible
maturity date” for the indicated Classes of Certificates. The Trust Fund will
also issue the Class X-1 Certificates and the Class P Certificates, which will
not be issued by any REMIC created hereunder.
Designation
|
Pass-Through
Rate
|
Initial
Aggregate Certificate Balance
|
Latest
Possible
Maturity
Date (1)
|
Class
A-1
|
Variable(2)
|
$340,283,000.00
|
May
25, 2036
|
Class
A-2
|
Variable(2)
|
$100,116,000.00
|
May
25, 2036
|
Class
A-3
|
Variable(2)
|
$20,295,000.00
|
May
25, 2036
|
Class
M-1
|
Variable(2)
|
$70,148,000.00
|
May
25, 2036
|
Class
M-2
|
Variable(2)
|
$12,725,000.00
|
May
25, 2036
|
Class
M-3
|
Variable(2)
|
$29,691,000.00
|
May
25, 2036
|
Class
M-4
|
Variable(2)
|
$12,724,000.00
|
May
25, 2036
|
Class
M-5
|
Variable(2)
|
$11,746,000.00
|
May
25, 2036
|
Class
M-6
|
Variable(2)
|
$10,441,000.00
|
May
25, 2036
|
Class
M-7
|
Variable(2)
|
$10,440,000.00
|
May
25, 2036
|
Class
B-1
|
Variable(2)
|
$12,399,000.00
|
May
25, 2036
|
Class
B-2
|
Variable(2)
|
$8,809,000.00
|
May
25, 2036
|
Class
X
|
N/A(3)
|
$12,724,965.70
|
May
25, 2036
|
_________________
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for
the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each Class of
Certificates.
|
(2)
|
Calculated
in accordance with the definition of “Pass-Through Rate”
herein.
|
(3)
|
The
Class X Certificates will accrue interest at their variable Pass-Through
Rate on the Notional Amount of the Class X Certificates outstanding
from
time to time which shall equal the Uncertificated Balance of the
REMIC I
Regular Interests. The Class X Certificates will not accrue interest
on
their Certificate Balance.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Stated Principal Balance
equal
to approximately $652,541,965.70.
The
minimum denomination for each Class of Offered Certificates and the Class B-1
Certificates and Class B-2 Certificates will be $25,000 initial Certificate
Balance with integral multiples of $1 in excess thereof. The minimum
denomination for (a) the Class R Certificates and the Class RC Certificates
will be a 100% Percentage Interest in each such Class and (b) the Class P and
Class X Certificates will be a 1% Percentage Interest in each such Class. The
Class X-1 Certificates will be issued as a single Certificate and will not have
a Class Certificate Balance.
It
is
expected that each Class of Certificates will receive its final distribution
of
principal and interest on or prior to the Final Scheduled Distribution
Date.
Set
forth
below are designations of Classes of Certificates to the categories used
herein:
Book-Entry
Certificates
|
All
Classes of Certificates other than the Physical
Certificates.
|
Class A
Certificates
|
Class A-1,
Class A-2 and Class A-3
Certificates.
|
Class M
Certificates
|
Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6 and Class M-7
Certificates.
|
Class B
Certificates
|
Class B-1
Certificates and Class B-2
Certificates.
|
Residual
Certificates
|
Class
R Certificates and Class RC
Certificates.
|
Delay
Certificates
|
The
Class M-5, Class B-1 and Class B-2
Certificates.
|
ERISA-Restricted
Certificates
|
Class B-1,
Class B-2, Class R, Class RC, Class P, Class X and Class X-1
Certificates; any Certificate with a rating below the lowest applicable
permitted rating under the Underwriters’
Exemption.
|
Fixed
Rate Certificates
|
Class
A-2, Class M-5, Class B-1 and Class B-2
Certificates.
|
LIBOR
Certificates
|
The
Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class M-3, Class M-4,
Class
M-6 and Class M-7 Certificates.
|
Non-Delay
Certificates
|
LIBOR
Certificates, Class A-2 Certificates and Class X
Certificates
|
Offered
Certificates
|
All
Classes of Certificates other than the Private
Certificates.
|
Physical
Certificates
|
Class P,
Class X, Class X-1, Class
R and Class RC Certificates.
|
Private
Certificates
|
Class B-1,
Class B-2, Class P, Class X, Class X-1, Class R and Class RC
Certificates.
|
Rating
Agencies
|
Standard
& Poor’s and Moody’s.
|
Regular
Certificates
|
All
Classes of Certificates other than the Class P, Class X-1, Class R
and Class RC Certificates.
|
Subordinated
Certificates
|
Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7,
Class B-1 and Class B-2
Certificates.
|
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Accepted
Servicing Practices: With respect to any Mortgage Loan, those mortgage servicing
practices set forth in Section 3.01 of this Agreement.
Account:
Any of the Collection Account, the Distribution Account or the Excess Reserve
Fund Account. Each Account shall be an Eligible Account.
Accrued
Certificate Interest Distribution Amount: With respect to any Distribution
Date
for each Class of Offered Certificates and the Class B-1 Certificates and Class
B-2 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 not covered by Total Monthly Excess Spread for the related Due Period
allocated to such Class pursuant to Section 4.02.
Additional
Form 10-D Disclosure: As defined in Section 8.12(b).
Additional
Form 10-K Disclosure: As defined in Section 8.12(c).
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.
Advance:
Any P&I Advance or Servicing Advance.
Advance
Facility: A financing or other facility as described in
Section 12.07.
Advance
Reimbursement Amounts: As defined in Section 12.07.
Advancing
Person: The Person to whom the Servicer’s rights under this Agreement to be
reimbursed for any P&I Advances or Servicing Advances have been assigned
pursuant to Section 12.07.
Affiliate:
With respect to any Person, any other Person controlling, controlled by or
under
common control with such first Person. For the purposes of this definition,
“control” means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
Agreement:
This Pooling and Servicing Agreement and all amendments or supplements
hereto.
American
Home: American Home Mortgage Corp., a New York Corporation.
American
Home Agreements: Collectively, the American Home Sale Agreement, without the
mortgage loan schedule exhibits, and the American Home Assignment Agreement,
copies of which are attached hereto as Exhibit Q-3.
American
Home Assignment Agreement: The Assignment, Assumption and Recognition Agreement,
dated as of June 9, 2006, among the Purchaser, the Depositor and American
Home.
American
Home Mortgage Loan: Each Mortgage Loan purchased by the Purchaser pursuant
to
the American Home Purchase Agreement and identified as a “American Home Mortgage
Loan” on the Mortgage Loan Schedule.
American
Home Sale Agreement: The Amended and Restated Mortgage Loan Sale and Servicing
Agreement, dated as of March 1, 2006, by and among American Home, American
Home
Mortgage Servicing, Inc. and the Purchaser, solely insofar as the American
Home
Purchase Agreement relates to the American Home Mortgage Loans.
Amount
Held for Future Distribution: As to the Certificates on any Determination Date,
the aggregate amount held in each Collection Account at the close of business
on
the related Remittance Date on account of (i) Principal Prepayments,
Insurance Proceeds, Condemnation Proceeds and Liquidation Proceeds on the
Mortgage Loans received after the end of the related Prepayment Period and
(ii) all Scheduled Payments on the Mortgage Loans due after the end of the
related Due Period.
Applied
Realized Loss Amount: With respect to any Distribution Date, the amount, if
any,
by which the aggregate Class Certificate Balance of the Offered Certificates
and
the Class B-1 Certificates and Class B-2 Certificates after distributions of
principal and after application of any amounts received under the Yield
Maintenance Agreement on such Distribution Date exceeds the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date.
Appraised
Value: With respect to any Mortgage Loan, the value, determined pursuant to
the
applicable Underwriting Guidelines, of the related Mortgaged Property as of
the
origination of such Second Lien Mortgage Loan; provided,
however,
that in
the case of a refinanced Mortgage Loan, such value is based solely upon the
appraisal made at the time of origination of such refinanced Mortgage
Loan.
Assessment
of Compliance: As defined in Section 3.23.
Assignment
of Mortgage: An assignment of the Mortgage, notice of transfer or equivalent
instrument in recordable form (other than the assignee’s name and recording
information not yet returned from the recording office), reflecting the sale
of
the Mortgage to the Trust.
Attestation
Report: As defined in Section 3.23.
Available
Funds: With respect to any Distribution Date and the Mortgage Loans to the
extent received by the Securities Administrator (x) the sum of (i) all
scheduled installments of interest (net of the related Expense Fees) and
principal due on the Due Date on such Mortgage Loans in the related Due Period
and received on or prior to the related Determination Date, together with any
P&I Advances in respect thereof; (ii) all Condemnation Proceeds,
Insurance Proceeds and Liquidation Proceeds received during the related
Prepayment Period (in each case, net of unreimbursed expenses incurred in
connection with a liquidation or foreclosure and unreimbursed Advances, if
any);
(iii) all partial or full prepayments on the Mortgage Loans received during
the related Prepayment Period together with all Compensating Interest paid
by
the Servicers in connection therewith (excluding Prepayment Premiums);
(iv) all amounts received with respect to such Distribution Date as the
Substitution Adjustment Amount or the Repurchase Price in respect of a Deleted
Mortgage Loan or a Mortgage Loan repurchased by Fremont, American Home, IndyMac
or the Purchaser, as applicable, as of such Distribution Date; and (v) the
proceeds received with respect to the termination of the Trust Fund pursuant
to
clause (a) of Section 11.01, reduced by (y) all amounts in
reimbursement for P&I Advances and Servicing Advances previously made with
respect to the Mortgage Loans, and other amounts as to which the Servicers,
the
Master Servicer, the Depositor, the Securities Administrator or the Trustee
(or
co-trustee) are entitled to be paid or reimbursed pursuant to this
Agreement.
Basic
Principal Distribution Amount: With respect to any Distribution Date, the excess
of (i) the 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 the LIBOR Certificates and the Class
M-5, Class B-1 and Class B-2 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 or Class M-5, Class B-1 or Class B-2 Certificates is based upon
the
WAC Cap, the excess of (i) the amount of interest such Class of
Certificates would otherwise be entitled to receive on such Distribution Date
had the Pass-Through Rate not been subject to the WAC Cap, over (ii) the
amount of interest payable on such Class of Certificates at the WAC Cap, and
(B)
the Basis Risk Carry Forward Amount for such Class of Offered Certificates
for
all previous Distribution Dates not previously paid, together with interest
thereon at a rate equal to the applicable Pass-Through Rate for such Class
of
LIBOR Certificates for such Distribution Date (without giving effect to the
WAC
Cap).
Basis
Risk Payment: For any Distribution Date, an amount equal to the lesser of
(i) the aggregate Basis Risk Carry Forward Amounts for such Distribution
Date and (ii) the sum of (a) the Class X Distributable Amount (prior
to any reduction for Basis Risk Payments) and (b) and (b) amounts paid pursuant
to the Yield Maintenance Agreement available for such purpose.
Best’s:
Best’s Key Rating Guide, as the same shall be amended from time to
time.
Book-Entry
Certificates: As specified in the Preliminary Statement.
Business
Day: Any day other than (i) Saturday or Sunday, or (ii) a day on which
banking and savings and loan institutions, in (a) the States of New York,
Florida, Minnesota, Maryland and California, (b) the State in which the
Servicer’s servicing operations are located, or (c) the State in which any
Corporate Trust Office is located, are authorized or obligated by law or
executive order to be closed.
Certificate:
Any one of the Certificates executed by the Securities Administrator in
substantially the forms attached hereto as exhibits.
Certificate
Balance: With respect to any Class of Certificates, other than the Class P,
Class R or Class RC 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, and reduced by the amount of any Applied Realized Loss Amounts
previously allocated 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 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 P Certificates and Class R Certificates have no Certificate Balance.
With respect to each Class X Certificate as of any date of determination, an
amount equal to the Percentage Interest evidenced by such Certificate times
the
excess, if any, of (A) the then aggregate Uncertificated Balances of the REMIC
I
Regular Interests over (B) the then aggregate Class Certificate Balance of
the
Class A Certificates, Class M Certificates and Class B Certificates then
outstanding. The aggregate initial Class Certificate Balance of each Class
of
Regular Certificates is set forth in the Preliminary Statement
hereto.
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 and the Trustee
are
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.
Charged
Off Loan: With respect to any Distribution Date, a defaulted Mortgage Loan
that
is 180 days delinquent that has not yet been liquidated, giving rise to a
Realized Loss.
Class:
All Certificates bearing the same class designation as set forth in the
Preliminary Statement.
Class A
Certificates: As specified in the Preliminary Statement.
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) 33.80% of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Class 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), (H) the Class
Certificate Balance of the Class M-7 Certificates (after taking into
account the distribution of the Class M-7 Principal Distribution Amount on
such Distribution Date) and (I) the Class Certificate Balance of the
Class B-1 Certificates immediately prior to such Distribution Date, over
(ii) the lesser of (A) the product of (x) 86.00% 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 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 Amount on such Distribution Date), (H) the Class
Certificate Balance of the Class M-7 Certificates (after taking into
account the distribution of the Class M-7 Principal Distribution Amount on
such Distribution Date), (I) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the distribution of the Class B-1
Principal Distribution Amount on such Distribution Date) and (J) the Class
Certificate Balance of the Class B-2 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 88.70% 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
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 M
Certificates: The Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6 and Class M-7 Certificates.
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) 55.30% and (y) the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date, and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date over
the
Overcollateralization Floor.
Class M-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) 59.20% and (y) the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date and (B) the excess, if any, of the
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) 68.30% and
(y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-4
Certificates: All Certificates bearing the class designation of
“Class M-4.”
Class M-4
Principal Distribution Amount: With respect to any Distribution Date, the excess
of (i) the sum of (A) the aggregate Class Certificate 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) 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) 72.20% and (y) the aggregate
Stated Principal Balance of the Mortgage Loans for such Distribution Date,
and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date over the Overcollateralization
Floor.
Class M-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) 75.80% and
(y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class M-6
Certificates: All Certificates bearing the class designation of
“Class M-6.”
Class M-6
Principal Distribution Amount: With respect to any Distribution Date, the excess
of (i) the sum of (A) the aggregate Class Certificate 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) 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) 79.00% 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-7
Certificates: All Certificates bearing the class designation of
“Class M-7.”
Class M-7
Principal Distribution Amount: With respect to any Distribution Date, the excess
of (i) the sum of (A) the aggregate Class Certificate 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 M-7 Certificates immediately prior to such
Distribution Date, over (ii) the lesser of (A) the product of (x) 82.20% and
(y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date, and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class P
Certificates: All Certificates bearing the class designation of
“Class P.”
Class R
Certificates: All Certificates bearing the designation of “Class R” and
representing the Residual Interest in REMIC II.
Class RC
Certificates: All Certificates bearing the class designation of “Class RC”
and representing the Residual Interest in REMIC I.
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-1
Certificates: All Certificates bearing the class designation of
“Class X-1.”
Closing
Date: June 9, 2006.
Code:
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Collection
Accounts: As defined in Section 3.10(a).
Combined
Loan-to-Value Ratio or CLTV: As of the date of origination and as to any
Mortgage Loan, the ratio, expressed as a percentage, of (a) the sum of (i)
the outstanding principal balance of the Mortgage Loan as of the date of
origination and (ii) the outstanding principal balance as of the date of
origination of any mortgage loan or mortgage loans that are senior or equal
in
priority to the Mortgage Loan and which are secured by the same Mortgaged
Property to (b) the Appraised Value.
Commission:
The United States Securities and Exchange Commission.
Compensating
Interest: For any Distribution Date, the lesser of (a) the Prepayment
Interest Shortfall, if any, for such Distribution Date, with respect to
Principal Prepayments occurring during the portion of the related Prepayment
Period in the calendar month preceding such Distribution Date, and (b)(i) with
respect to IndyMac, one-half of the Servicing Fee payable to IndyMac for such
Distribution Date and (ii) with respect to AHMSI and Ocwen, the Servicing Fee
payable to the applicable Servicer for such Distribution Date.
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 remaining
after, or not otherwise required to be applied to, the satisfaction of any
related First Lien Mortgage Loan.
Corporate
Trust Office: With respect to the Securities Administrator: (i) for
certificate transfer purposes, the office of the Securities Administrator at
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:
Corporate Trust Services, GSAMP 2006-S4, (ii) for all other purposes,
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Manager
GSAMP 2006-S4, or (iii) at such other address as the Securities
Administrator may designate from time to time by notice to the
Certificateholders. With respect to the Trustee, the designated office of the
Trustee in the State of California at which at any particular time its corporate
trust business with respect to this Agreement is administered, which office
at
the date of the execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attn: Trust Administration-GS064S,
facsimile no. (000) 000-0000 and which is the address to which notices to and
correspondence with the Trustee should be directed.
Corresponding
Certificate: With respect to each REMIC I Regular Interest, as
follows:
REMIC
I Regular Interest
|
Class
|
REMIC
I Regular Interest I-LTA1
|
A-1
|
REMIC
I Regular Interest I-LTA2
|
A-2
|
REMIC
I Regular Interest I-LTA3
|
A-3
|
REMIC
I Regular Interest I-LTM1
|
M-1
|
REMIC
I Regular Interest I-LTM2
|
M-2
|
REMIC
I Regular Interest I-LTM3
|
M-3
|
REMIC
I Regular Interest I-LTM4
|
M-4
|
REMIC
I Regular Interest I-LTM5
|
M-5
|
REMIC
I Regular Interest I-LTM6
|
M-6
|
REMIC
I Regular Interest I-LTM7
|
M-7
|
REMIC
I Regular Interest I-LTB1
|
B-1
|
REMIC
I Regular Interest I-LTB2
|
B-2
|
Cumulative
Loss Percentage: As of any date of determination, the percentage equivalent
of a
fraction, the numerator of which is the aggregate amount of Realized Losses
on
the Mortgage Loans for the period from the Cut-off Date to the date of
determination and the denominator of which is the Stated Principal Balance
of
the Mortgage Loans as of the Cut-off Date.
Custodial
File: With respect to each Mortgage Loan, any Mortgage Loan Document which
is
delivered to the Trustee or which at any time comes into the possession of
the
Trustee.
Cut-off
Date: June 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).
Data
Tape
Information: The information provided by the Original Loan Sellers as of the
Cut-off Date to the Depositor setting forth the following information with
respect to each Mortgage Loan: (1) the applicable Original Loan Seller’s
Mortgage Loan identifying number; (2) the Mortgagor’s name; (3) the
street address of the Mortgaged Property including the city, state and zip
code;
(4) a code indicating whether the Mortgaged Property is owner-occupied, a
second home or investment property; (5) the number and type of residential
units constituting the Mortgaged Property (i.e., a single family residence,
a
2-4 family residence, a unit in a condominium project or a unit in a planned
unit development, manufactured housing); (6) the original months to
maturity or the remaining months to maturity from the Cut-off Date, in any
case
based on the original amortization schedule and, if different, the maturity
expressed in the same manner but based on the actual amortization schedule;
(7) the Combined Loan-to-Value Ratio at origination; (8) the Mortgage
Interest Rate as of the Cut-off Date; (9) the date on which the Scheduled
Payment was due on the Mortgage Loan and, if such date is not consistent with
the Due Date currently in effect, such Due Date; (10) the stated maturity
date; (11) the amount of the Scheduled Payment as of the Cut-off Date;
(12) the last payment date on which a Scheduled Payment was actually
applied to pay interest and the outstanding principal balance; (13) the
original principal amount of the Mortgage Loan; (14) the principal balance
of the Mortgage Loan as of the close of business on the Cut-off Date, after
deduction of payments of principal due and collected on or before the Cut-off
Date; (15) the type of Mortgage Loan (i.e., fixed rate, second lien);
(16) a code indicating the purpose of the loan (i.e., purchase, rate and
term refinance, equity take-out refinance); (17) a code indicating the
documentation style (i.e., full documentation, limited documentation or stated
income); (18) the loan credit classification (as described in the
Underwriting Guidelines); (19) whether such Mortgage Loan provides for a
Prepayment Premium; (20) the Prepayment Premium period of such Mortgage Loan,
if
applicable; (21) a description of the Prepayment Premium, if applicable;
(22) the Mortgage Interest Rate as of origination; (23) the credit risk
score (FICO score) at origination; (24) the date of origination; (25) a
code indicating whether the Mortgage Loan has been modified; (26) the
current Combined Loan-to-Value Ratio; (27) the Due Date for the first
Scheduled Payment; (28) the original Scheduled Payment due; (29) with
respect to the related Mortgagor, the debt-to-income ratio; (30) the
Appraised Value of the Mortgaged Property; (31) the sales price of the
Mortgaged Property if the Mortgage Loan was originated in connection with the
purchase of the Mortgaged Property; (32) a code indicating whether a Mortgage
Loan is or has been 30 days delinquent; (33) the outstanding principal balance
of the related First Lien Mortgage Loan; (34) with respect to each MERS
Designated Mortgage Loan, the MERS identification number; and (35) whether
such
Mortgage Loan is a Fremont Mortgage Loan, American Home Mortgage Loan or IndyMac
Mortgage Loan. With respect to the Mortgage Loans in the aggregate: (1) the
number of Mortgage Loans; (2) the current aggregate outstanding principal
balance of the Mortgage Loans; (3) the weighted average Mortgage Interest
Rate of the Mortgage Loans; and (4) the weighted average maturity of the
Mortgage Loans.
Debt
Service Reduction: With respect to any Mortgage Loan, a reduction by a court
of
competent jurisdiction in a proceeding under the United States Bankruptcy Code
in the Scheduled Payment for such Mortgage Loan which became final and non
appealable, except for such a reduction resulting from a Deficient Valuation
or
any reduction that results in a permanent forgiveness of principal.
Deficient
Valuation: With respect to any Mortgage Loan, a valuation of the related
Mortgaged Property by a court of competent jurisdiction in an amount less than
the then outstanding principal balance of the Mortgage Loan, which valuation
results from a proceeding initiated under the United States Bankruptcy
Code.
Definitive
Certificates: Any Certificate evidenced by a Physical Certificate and any
Certificate issued in lieu of a Book-Entry Certificate pursuant to
Section 5.02(e).
Delay
Certificates: As specified in the Preliminary Statement.
Deleted
Mortgage Loan: As defined in Section 2.03(c).
Delinquent:
As used herein, a Mortgage Loan is considered to be: “30 to 59 days” or “30 or
more days” delinquent when a payment due on any scheduled due date remains
unpaid as of the close of business on the next following monthly scheduled
due
date; “60 to 89 days” or “60 or more days” delinquent when a payment due on any
scheduled due date remains unpaid as of the close of business on the second
following monthly scheduled due date; and so on. The determination as to whether
a Mortgage Loan falls into these categories is made as of the close of business
on the last business day of each month. For example, a Mortgage Loan with a
payment due on July 1 that remained unpaid as of the close of business on August
31 would then be considered to be 30 to 59 days delinquent.
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 Xxxxx’x, F1+ by Fitch and A-1
by Standard & Poor’s, to the extent they are Rating Agencies
hereunder.
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 any Distribution Date, the 15th day of the calendar month
in which such Distribution Date occurs or, if such day is not a Business Day,
the immediately preceding Business Day.
Distribution
Account: The separate Eligible Account created and maintained by the Securities
Administrator pursuant to Section 3.27(b) in the name of the Securities
Administrator
as
paying agent for the benefit of the Certificateholders and designated “Xxxxx
Fargo Bank, N.A. in trust for registered holders of GSAMP Trust 2006-S4 Mortgage
Pass-Through Certificates, Series 2006-S4.” Funds in the Distribution
Account shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement and may be invested in Permitted
Investments.
Distribution
Date: The 25th day of each calendar month after the initial issuance of the
Certificates or, if such day is not a Business Day, the next succeeding Business
Day, commencing in July 2006.
Document
Certification and Exception Report: The report attached to Exhibit F
hereto.
Due
Date:
The day of the month on which the Scheduled Payment is due on a Mortgage Loan,
exclusive of any days of grace.
Due
Period: With respect to any Distribution Date, the period commencing on the
second day of the calendar month preceding the month in which the Distribution
Date occurs and ending on the first day of the calendar month in which the
Distribution Date occurs.
Eligible
Account: Either (i) an account maintained with a federal or state chartered
depository institution or trust company 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 “F-1” by Fitch and “P-1” by
Xxxxx’x, if rated by such Rating Agency, (and 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.
ERISA:
The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Restricted
Certificate: As specified in the Preliminary Statement.
Event
of
Default: As defined in Section 7.01.
Excess
Overcollateralized Amount: With respect to any Distribution Date, the excess,
if
any, of (a) the Overcollateralized Amount on such Distribution Date over
(b) the Specified Overcollateralized Amount for such Distribution
Date.
Excess
Reserve Fund Account: The separate Eligible Account created and maintained
by
the Securities Administrator pursuant to Sections 3.27(a) in the name of
the Securities Administrator for the benefit of the Regular Certificateholders
and designated “Xxxxx Fargo Bank, N.A. in trust for registered Holders of GSAMP
Trust 2006-S4, Mortgage Pass-Through Certificates, Series 2006-S4.” Funds in the
Excess Reserve Fund Account shall be held in trust for the Regular
Certificateholders for the uses and purposes set forth in this Agreement.
Amounts on deposit in the Excess Reserve Fund Account shall not be
invested.
Exchange
Act: The Securities Exchange Act of 1934, as amended.
Expense
Fee Rate: As to each Mortgage Loan, a per annum rate equal to the sum of the
Servicing Fee Rate and the Master Servicing Fee Rate.
Expense
Fees: As to each Mortgage Loan, the sum of the Servicing Fee and the Master
Servicing Fee.
Extra
Principal Distribution Amount: As of any Distribution Date, the lesser of
(x) the related Total Monthly Excess Spread for such Distribution Date and
amounts received under the Yield Maintenance Agreement and available to cover
Realized Losses for that Distribution Date and (y) the related
Overcollateralization Deficiency for such Distribution Date.
Fair
Market Value Excess: With respect to the Mortgage Loans to be purchased pursuant
to Section 11.01 hereof, the excess, if any, of the Fair Market Value Price
for
such Mortgage Loans, over
the Par
Price for such Mortgage Loans. Any Fair Market Value Excess shall be distributed
directly to the Holders of the Class RC Certificates.
Fair
Market Value Price: The sum of the aggregate fair market value of all of the
assets of the Trust as determined by the Securities Administrator in
consultation with the Underwriter (or, if the Underwriter is unwilling or unable
to serve in that capacity, a financial advisor selected by the Securities
Administrator in a commercially reasonable manner, whose fees will be an expense
of the Depositor (or other party causing the Terminating Purchase)), based
upon
the mean of bids from at least three recognized broker/dealers that deal in
similar assets as of the close of business on the third Business Day preceding
the date upon which notice of any such termination is furnished to
Certificateholders pursuant to Section 11.01; provided,
however,
that in
determining such aggregate fair market value, the Securities Administrator
shall
be entitled to conclusively rely on such bids or the opinion of a nationally
recognized investment banker (the fees of which shall be an expense of the
Trust). The fair market value of the assets in the Trust or the appraised value
of any REO Property shall be based upon the inclusion of (i) accrued
interest to the Due Date in the month in which the Termination Price is
distributed to the Certificateholders, at the applicable Mortgage Interest
Rate
on the Stated Principal Balance of each Mortgage Loan (including any Mortgage
Loan which became an REO Property as to which an REO Property Disposition has
not occurred), (ii) the amount of outstanding Servicing Advances to the Due
Date
in the month in which the Termination Price is distributed to the
Certificateholders, and (iii) the amount of any costs and damages incurred
by the Trust as a result of any violation of any applicable federal, state,
or
local predatory or abusive lending law arising from or in connection with the
origination of any Mortgage Loan remaining in the Trust.
Xxxxxx
Xxx: The Federal National Mortgage Association and its successors in
interest.
Xxxxxx
Mae Guides: The Xxxxxx Xxx Seller’s Guide and the Xxxxxx Mae Servicer’s Guide
and all amendments or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation, and its successors in
interest.
Final
Recovery Determination: With respect to any defaulted Mortgage Loan or any
REO
Property (other than a Mortgage Loan or REO Property purchased by Fremont,
American Home, IndyMac or the Purchaser as contemplated by this Agreement),
a
determination made by the applicable Servicer that all Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and other payments or recoveries
which the applicable Servicer, in its reasonable good faith judgment, expects
to
be finally recoverable in respect thereof have been so recovered. Each Servicer
shall maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
Final
Scheduled Distribution Date: The Final Scheduled Distribution Date for each
Class of Certificates is the Distribution Date occurring in May
2036.
First
Lien Mortgage Loan: With respect to each Mortgage Loan, any mortgage loan
secured by a first lien Mortgage on the related Mortgaged Property.
Fitch:
Fitch, Inc., and its successors in interest.
Forbearance:
As defined in Section 3.07(a).
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.
Xxxxxxx
Mac Guides: The Xxxxxxx Mac Seller’s & Servicer’s Guide and all amendments
or additions thereto.
Fremont:
Fremont Investment & Loan, a California industrial bank, and its successors
in interest.
Fremont
Agreements: Collectively, the Fremont Purchase Agreement, without the mortgage
loan schedule exhibits, and the Fremont Assignment Agreement, copies of which
are attached hereto as Exhibit Q-1.
Fremont
Assignment Agreement: The Assignment, Assumption and Recognition Agreement,
dated as of June 9, 2006, among the Purchaser, the Depositor and
Fremont.
Fremont
Mortgage Loan: Each Mortgage Loan purchased by the Purchaser pursuant to the
Fremont Purchase Agreement and identified as a “Fremont Mortgage Loan” on the
Mortgage Loan Schedule.
Fremont
Purchase Agreement: The Amended and Restated Flow Mortgage Loan Purchase and
Warranties Agreements, dated as of January 1, 2006, by and between Fremont
and
the Purchaser, solely insofar as the Fremont Purchase Agreement relates to
the
Fremont Mortgage Loans.
High
Cost
Mortgage Loan:
A
Mortgage Loan that is (a) covered by the Home Ownership and Equity Protection
Act of 1994, (b) identified, classified or characterized as “high cost,”
“threshold,” “covered”, or “predatory” under any other applicable state, federal
or local law (or a similarly identified, classified or characterized loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees) or (c) categorized
as “High Cost” or “Covered” pursuant to the then-current version of Appendix E
of the Standard & Poor’s Glossary.
Home
Loan: A Mortgage Loan categorized as “Home Loan” pursuant to the then-current
version of Appendix E of Standard & Poor’s Glossary.
IndyMac:
IndyMac Bank, F.S.B., a federally chartered savings bank.
IndyMac
Agreements: Collectively, the IndyMac Purchase Agreement, without the mortgage
loan schedule exhibits, and the IndyMac Assignment Agreement, copies of which
are attached hereto as Exhibit Q-2.
IndyMac
Assignment Agreement: The Assignment, Assumption and Recognition Agreement,
dated as of June 9, 2006, among the Purchaser, the Depositor and
IndyMac.
IndyMac
Mortgage Loan: Each Mortgage Loan purchased by the Purchaser pursuant to the
IndyMac Purchase Agreement and identified as a “IndyMac Mortgage Loan” on the
Mortgage Loan Schedule.
IndyMac
Purchase Agreement: The Second Amended and Restated Master Mortgage Loan
Purchase Agreement, dated as of March 1, 2006, by and between IndyMac and the
Purchaser, solely insofar as the IndyMac Purchase Agreement relates to the
IndyMac Mortgage Loans.
Initial
Certification: The Initial Certification submitted by the Trustee substantially
in the form of Exhibit E.
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of insurance policies
insuring the Mortgage Loan or the related Mortgaged Property.
Interest
Accrual Period: With respect to each Class of Non-Delay Certificates and any
Distribution Date, the period commencing on the preceding Distribution Date
(or,
for the initial Distribution Date, the Closing Date) and ending on the day
preceding the current Distribution Date, and with respect to the Delay
Certificates and the REMIC I Regular Interests and any Distribution Date, the
calendar month preceding the month in which such Distribution Date occurs.
For
purposes of computing interest accruals on each Class of Non-Delay Certificates,
each Interest Accrual Period has the actual number of days in such period and
each year is assumed to have 360 days. For purposes of computing interest
accruals on each Class of Delay Certificates, each Interest Accrual Period
has
30 days in such period and each year is assumed to have 360 days.
Interest
Remittance Amount: With respect to any Distribution, that portion of Available
Funds attributable to interest relating to the Mortgage Loans.
Investment
Account: As defined in Section 3.12(a).
Investor:
With respect to each MERS Designated Mortgage Loan, the Person named on the
MERS
System as the investor pursuant to the MERS Procedures Manual.
Late
Collections: With respect to any Mortgage Loan and any Due Period, all amounts
received after the Determination Date immediately following such Due Period,
whether as late payments of Scheduled Payments or as Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent late
payments or collections of principal and/or interest due (without regard to
any
acceleration of payments under the related Mortgage and Mortgage Note) but
delinquent for such Due Period and not previously recovered.
LIBOR:
With respect to any Interest Accrual Period for the LIBOR Certificates, the
rate
determined by the Securities Administrator on the related LIBOR Determination
Date on the basis of the offered rate for one-month U.S. dollar deposits as
such
rate appears on Telerate Page 3750 as of 11:00 a.m. (London time) on such date;
provided, that if such rate does not appear on Telerate Page 3750, the rate
for
such date will be determined on the basis of the rates at which one-month U.S.
dollar deposits are offered by the Reference Banks at approximately 11:00 a.m.
(London time) on such date to prime banks in the London interbank market. In
such event, the Securities Administrator shall request the principal London
office of each of the Reference Banks to provide a quotation of its rate. If
at
least two such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16%). If fewer than two quotations are provided as
requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Securities Administrator
(after consultation with the Depositor), at approximately 11:00 a.m. (New York
City time) on such date for one-month U.S. dollar deposits of leading European
banks.
LIBOR
Certificates: As specified in the Preliminary Statement.
LIBOR
Determination Date: With respect to any Interest Accrual Period for the LIBOR
Certificates, the second London Business Day preceding the commencement of
such
Interest Accrual Period.
Liquidated
Mortgage Loan: With respect to any Distribution Date, (i) a defaulted Mortgage
Loan (including any REO Property) which was liquidated in the calendar month
preceding the month of such Distribution Date and as to which the applicable
Servicer has certified (in accordance with this Agreement) that it has made
a
Final Recovery Determination and (ii) any Charged Off Loan.
Liquidation
Event: With respect to any Mortgage Loan, any of the following events:
(i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made as to such Mortgage Loan; (iii) such Mortgage Loan is
removed from coverage under this Agreement by reason of its being purchased,
sold, transferred or replaced pursuant to or as contemplated by this Agreement
or (iv) such Mortgage Loan becomes a Charged Off Loan pursuant to Section
3.15(b). With respect to any REO Property, either of the following events:
(i) a Final Recovery Determination is made as to such REO Property; or
(ii) such REO Property is removed from coverage under this Agreement by
reason of its being purchased pursuant to this Agreement.
Liquidation
Proceeds: The amounts, including Insurance Proceeds, Condemnation Proceeds
or
those received following the acquisition of REO Property, received in connection
with the liquidation of a defaulted Mortgage Loan, whether through a trustee’s
sale, foreclosure sale or otherwise, including any Subsequent Recoveries in
each
case, which are remaining after, or not otherwise required to be applied to,
the
satisfaction of any related First Lien Mortgage Loan.
London
Business Day: Any day on which dealings in deposits of United States dollars
are
transacted in the London interbank market.
Marker
Rate: With respect to the Class X Certificates and any Distribution Date, a
per
annum rate equal to two (2) times the weighted average of the REMIC I Remittance
Rate for each of REMIC I Regular Interest I-LTA1, REMIC I Regular Interest
I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular I-LTM1, REMIC I Regular
Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular Interest
I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC
I Regular Interest I-LTM7, REMIC I Regular Interest I-LTB1, REMIC I Regular
Interest I-LTB2 and REMIC I Regular Interest I-LTZZ, with the rate on each
such
REMIC I Regular Interest (other than REMIC I Regular Interest I-LTZZ) subject
to
a cap equal to the related Pass-Through Rate for the Corresponding Certificate
for the purpose of this calculation for such Distribution Date and with the
rate
on REMIC I Regular Interest I-LTZZ subject to a cap of zero for the purpose
of
this calculation; provided however, each such cap for REMIC I Regular Interest
I-LTA1, REMIC I Regular Interest I-LTA3, REMIC I Regular Interest I-LTM1, REMIC
I Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular
Interest I-LTM4, REMIC I Regular Interest I-LTM6 and REMIC I Regular Interest
I-LTM7 shall be multiplied by a fraction the numerator of which is the actual
number of days in the related Interest Accrual Period and the denominator of
which is 30.
Master
Servicer:
Xxxxx
Fargo, and if a successor master servicer is appointed hereunder, such
successor.
Master
Servicer
Event of
Default:
As
defined in Section 9.04.
Master
Servicing Fee:
As to
each Mortgage Loan and any Distribution Date, an amount equal to one month’s
compensation at the related Master Servicing Fee Rate on the Stated Principal
Balance of such Mortgage Loan as of the preceding Distribution Date (or as
of
the Closing Date in the case of the first Distribution Date) or, in the
event of any payment of interest which accompanies a Principal Prepayment in
Full made by the Mortgagor, compensation at the Master Servicing Fee Rate on
the
Stated Principal Balance of such Mortgage Loan for the period covered by such
payment of interest.
Master
Servicing Fee Rate:
With respect to any Mortgage Loan, a per annum rate equal to 0.0025%.
Master
Servicing Officer:
Any
officer of the Master Servicer involved in, or responsible for, the
administration and master servicing of the Mortgage Loans.
Maximum
I-LTZZ Uncertificated Interest Deferral Amount: With respect to any Distribution
Date, the excess of (i) accrued interest at the REMIC I Remittance Rate
applicable to REMIC I Regular Interest I-LTZZ for such Distribution Date on
a
balance equal to the Uncertificated Balance of REMIC I Regular Interest I-LTZZ
minus the REMIC I Overcollateralization Amount, in each case for such
Distribution Date, over (ii) Uncertificated Interest on REMIC I Regular Interest
I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC
I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest
I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC
I Regular Interest I-LTB1 and REMIC I Regular Interest I-LTB2 with the rate
on
each such REMIC I Regular Interest subject to a cap equal to the related
Pass-Through Rate for the corresponding Certificate for the purpose of this
calculation for such Distribution Date; provided however, each such cap for
REMIC I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA3, REMIC I
Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest
I-LTM6 and REMIC I Regular Interest I-LTM7 shall be multiplied by a fraction
the
numerator of which is the actual number of days in the related Interest Accrual
Period and the denominator of which is 30.
MERS:
As
defined in Section 2.01(b).
MERS
Designated Mortgage Loan: Mortgage Loans for which (a) the applicable Original
Loan Seller has designated or will designate MERS as, and has taken or will
take
such action as is necessary to cause MERS to be, the mortgagee of record, as
nominee for the applicable Original Loan Seller, in accordance with the MERS
Procedures Manual and (b) the applicable Original Loan Seller has designated
or
will designate the Trust as the Investor on the MERS® System.
MERS
Procedures Manual: The MERS Procedures Manual, as it may be amended,
supplemented or otherwise modified from time to time.
MERS®
System: MERS mortgage electronic registry system, as more particularly described
in the MERS Procedures Manual.
Monthly
Statement: The statement made available to the Certificateholders pursuant
to
Section 4.03.
Moody’s:
Xxxxx’x Investors Service, Inc. and its successor in interest. If Xxxxx’x is
designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 12.05(b) the address for notices to Moody’s shall be Xxxxx’x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Pass-Through Group, or such other address as Moody’s may
hereafter furnish to the Depositor, the Securities Administrator, the Servicers
and the Trustee.
Mortgage:
The mortgage, deed of trust or other instrument identified on the Mortgage
Loan
Schedule as securing a Mortgage Note.
Mortgage
File: The items pertaining to a particular Mortgage Loan contained in either
the
Servicing File or Custodial File.
Mortgage
Interest Rate: The annual rate of interest borne on a Mortgage Note with respect
to each Mortgage Loan.
Mortgage
Loan: An individual Mortgage Loan which is the subject of this Agreement, each
Mortgage Loan originally sold and subject to this Agreement being identified
on
the Mortgage Loan Schedule, which Mortgage Loan includes, without limitation,
the Mortgage File, the Custodial File, the Servicing File, the Scheduled
Payments, Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds, REO Disposition proceeds, Prepayment Premiums and all
other rights, benefits, proceeds and obligations arising from or in connection
with such Mortgage Loan, excluding replaced or repurchased Mortgage
Loans.
Mortgage
Loan Documents: The mortgage loan documents pertaining to each Mortgage
Loan.
Mortgage
Loan Schedule: A schedule of Mortgage Loans delivered to the Securities
Administrator on the Closing Date and referred to on Schedule I, such schedule
setting forth the following information with respect to each Mortgage Loan
as of
the Cut-off Date: (1) the Original Loan Seller’s Mortgage Loan identifying
number; (2) the Mortgagor’s name; (3) the street address of the
Mortgaged Property including the city, state and zip code; (4) a code
indicating whether the Mortgaged Property is owner-occupied, a second home
or
investment property; (5) the number and type of residential units
constituting the Mortgaged Property (i.e., a single family residence, a 2-4
family residence, a unit in a condominium project or a unit in a planned unit
development, manufactured housing); (6) the original months to maturity or
the remaining months to maturity from the Cut-off Date, in any case based on
the
original amortization schedule and, if different, the maturity expressed in
the
same manner but based on the actual amortization schedule; (7) the
Combined Loan-to-Value Ratio, at origination; (8) the Mortgage Interest
Rate as of the Cut-off Date; (9) the date on which the Scheduled Payment
was due on the Mortgage Loan and, if such date is not consistent with the Due
Date currently in effect, such Due Date; (10) the stated maturity date;
(11) the amount of the Scheduled Payment as of the Cut-off Date;
(12) the last payment date on which a Scheduled Payment was actually
applied to pay interest and the outstanding principal balance; (13) the
original principal amount of the Mortgage Loan; (14) the principal balance
of the Mortgage Loan as of the close of business on the Cut-off Date, after
deduction of payments of principal due and collected on or before the Cut-off
Date; (15) the type of Mortgage Loan (i.e., fixed rate, second lien);
(16) a code indicating the purpose of the loan (i.e., purchase, rate and
term refinance, equity take-out refinance); (17) a code indicating the
documentation style (i.e., full, limited or stated income); (18) the loan
credit classification (as described in the Underwriting Guidelines);
(19) whether such Mortgage Loan provides for a Prepayment Premium;
(20) the Prepayment Premium period of such Mortgage Loan, if applicable;
(21) a description of the Prepayment Premium, if applicable; (22) the
Mortgage Interest Rate as of origination; (23) the credit risk score (FICO
score) at origination; (24) the date of origination; (25) a code indicating
whether the Mortgage Loan has been modified; (26) the Due Date for the first
Scheduled Payment; (27) the original Scheduled Payment due; (28) with
respect to the related Mortgagor, the debt-to-income ratio; (29) the
Appraised Value of the Mortgaged Property; (30) the sales price of the
Mortgaged Property if the Mortgage Loan was originated in connection with the
purchase of the Mortgaged Property; (31) a code indicating whether such Mortgage
Loan is a Home Loan; (32) a code indicating whether a Mortgage Loan is or has
been 30 days delinquent; (33) the outstanding principal balance of the related
First Lien Mortgage Loan; (34) a code indicating if a Mortgage Loan is or
has had a 30 Day Delinquency; and (35) whether the Mortgage Loan is a
Fremont Mortgage Loan, American Home Mortgage Loan IndyMac Mortgage Loan. With
respect to the Mortgage Loans in the aggregate: (1) the number of Mortgage
Loans; (2) the current aggregate outstanding principal balance of the
Mortgage Loans; (3) the weighted average Mortgage Interest Rate of the
Mortgage Loans; and (4) the weighted average maturity of the Mortgage
Loans.
Mortgage
Note: The note or other evidence of the indebtedness of a Mortgagor under a
Mortgage Loan.
Mortgaged
Property: The real property (or leasehold estate, if applicable) identified
on
the Mortgage Loan Schedule as securing repayment of the debt evidenced by a
Mortgage Note.
Mortgagor:
The obligor(s) on a Mortgage Note.
Net
Monthly Excess Cash Flow: For any Distribution Date the amount remaining for
distribution pursuant to subsection 4.02(a)(iii) (before giving effect to
distributions pursuant to such subsection).
Net
Prepayment Interest Shortfall: For any Distribution Date, the amount by which
the sum of the Prepayment Interest Shortfalls exceeds the sum of the
Compensating Interest payments made with respect to such Distribution
Date.
NIM
Issuer: The entity established as the issuer of the NIM Securities.
NIM
Securities: Any debt securities secured or otherwise backed by some or all
of
the Class X and Class P Certificates that are rated by one or more Rating
Agencies.
NIM
Trustee: The trustee for the NIM Securities.
90+
Day
Delinquent Mortgage Loan: Each Mortgage Loan with respect to which any portion
of a Scheduled Payment is, as of the last day of the prior Due Period, three
months or more past due (without giving effect to any grace period), each
Mortgage Loan in foreclosure, all REO Property and each Mortgage Loan for which
the Mortgagor has filed for bankruptcy.
Non-Delay
Certificates: As specified in the Preliminary Statement.
Nonrecoverable
P&I Advance: Any P&I Advance previously made or proposed to be made in
respect of a Mortgage Loan or REO Property that, in the good faith business
judgment of the applicable Servicer, the Master Servicer or any successor Master
Servicer including the Trustee, will not or, in the case of a proposed P&I
Advance, would not be ultimately recoverable from related late payments,
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds on such
Mortgage Loan or REO Property as provided herein.
Nonrecoverable
Servicing Advance: Any Servicing Advances previously made or proposed to be
made
in respect of a Mortgage Loan or REO Property, which, in the good faith business
judgment of the applicable Servicer, the Master Servicer or any successor Master
Servicer including the Trustee, 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.
Notional
Amount: With respect to the Class X Certificates and any Distribution Date,
the
Uncertificated Balance of the REMIC I Regular Interests for such Distribution
Date. As of the Closing Date, the Notional Amount of the Class X Certificates
is
equal to $652,541,965.70.
Notional
Balance: With respect to the Class X Certificates for purposes solely of the
face thereof, the aggregate Stated Principal Balance of the Mortgage Loans.
With
respect to each of the Class X-1, Class P, Class R and Class RC Certificates
for
purposes solely of the face thereof, $100.
Ocwen:
Ocwen Loan Servicing, LLC, a Delaware limited liability company, and its
successors in interest.
Offered
Certificates: As specified in the Preliminary Statement.
Officer’s
Certificate: A certificate signed by an officer of any Servicer or the Master
Servicer, as applicable, with responsibility for the servicing of the Mortgage
Loans required to be serviced by such Servicer and listed on a list delivered
to
the Trustee and Securities Administrator pursuant to this
Agreement.
Opinion
of Counsel: A written opinion of counsel, who may be in-house counsel for a
Servicer or a Subservicer, reasonably acceptable to the Trustee and/or the
Securities Administrator; provided, that any Opinion of Counsel relating to
(a)
qualification of any Trust REMIC as a REMIC or (b) compliance with the REMIC
Provisions, must (unless otherwise stated in such Opinion of Counsel) be an
opinion of counsel who (i) is in fact independent of such Servicer or the Master
Servicer of the Mortgage Loans, (ii) does not have any material direct or
indirect financial interest in such Servicer or the Master Servicer of the
Mortgage Loans or in an Affiliate of such Servicer and (iii) is not connected
with such Servicer or the Master Servicer of the Mortgage Loans as an officer,
employee, director or person performing similar functions.
Optional
Termination Date: The first Distribution Date on which the Master Servicer
may
effect a Terminating Purchase pursuant to Section 11.01 hereof.
Original
Loan Sellers: With respect to each Fremont Mortgage Loan, Fremont, with respect
to each American Home Mortgage Loan, American Home and with respect to each
IndyMac Mortgage Loan, IndyMac.
Original
Sale Date: With respect to each IndyMac Mortgage Loan, March 24, 2006, with
regard to each American Home Mortgage Loan, March 23, 2006, and with regard
to
each Fremont Mortgage Loan, April 27, 2006.
OTS:
Office of Thrift Supervision, and any successor thereto.
Outstanding:
With respect to the Certificates as of any date of determination, all
Certificates theretofore executed and authenticated under this Agreement
except:
(i) Certificates
theretofore cancelled by the Securities Administrator or delivered to the
Securities Administrator for cancellation; and
(ii) Certificates
in exchange for which or in lieu of which other Certificates have been executed
and delivered by the Securities Administrator pursuant to this
Agreement.
Outstanding
Mortgage Loan: As of any Due Date, a Mortgage Loan with a Stated Principal
Balance greater than zero which was not the subject of a Principal Prepayment
in
Full prior to such Due Date and which did not become a Liquidated Mortgage
Loan
prior to such Due Date.
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
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. Notwithstanding
the foregoing, on and after any Distribution Date following the reduction of
the
aggregate Class Certificate Balance of the Class A Certificates, Class M
Certificates and Class B Certificates to zero, the Overcollateralization Floor
shall be zero.
Overcollateralization
Reduction Amount: With respect to any Distribution Date, an amount equal to
the
lesser of (a) the Excess Overcollateralized Amount and (b) the Net
Monthly Excess Cash Flow.
Ownership
Interest: As to any Residual Certificate, any ownership interest in such
Certificate including any interest in such Certificate as the Holder thereof
and
any other interest therein, whether direct or indirect, legal or
beneficial.
P&I
Advance: As to any Mortgage Loan or REO Property, any advance made by the
applicable Servicer (or the Master Servicer as successor Servicer) in respect
of
any Determination Date representing the aggregate of all payments of principal
and interest, net of the Servicing Fee, that were due during the related Due
Period on the Mortgage Loans and that were delinquent on the related
Determination Date, plus certain amounts representing assumed payments not
covered by any current net income on the Mortgaged Properties acquired by
foreclosure or deed in lieu of foreclosure as determined pursuant to
Section 4.01.
Par
Price: An amount equal to (i) 100% of the Stated Principal Balance of each
Mortgage Loan remaining in the Trust on the day of such purchase, plus accrued
interest thereon at the Mortgage Interest Rate to the Due Date in the month
in
which the Termination Price is distributed to Certificateholders, plus the
amount of outstanding Servicing Advances thereon to the Due Date in the month
in
which the Termination Price is distributed to Certificateholders, plus (ii)
the
lesser of (A) the Stated Principal Balance of any Mortgage Loan for any REO
Property remaining in the Trust, plus accrued interest thereon at the Mortgage
Interest Rate to the Due Date in the month in which the Termination Price is
distributed to Certificateholders and (B) the current appraised value of any
such REO Property, such appraisal to be conducted by an appraiser satisfactory
to the Securities Administrator, plus (iii) the amount of any costs and damages
incurred by the Trust as a result of any violation of any applicable federal,
state, or local predatory or abusive lending law arising from or in connection
with the origination of any Mortgage Loan remaining in the Trust.
Pass-Through
Margin: With respect to each Class of LIBOR Certificates, the following
percentages: Class A-1, 0.090%, Class A-3, 0.170%; Class M-1, 0.350%;
Class M-2, 0.370%; Class M-3, 0.500%, Class M-4, 0.550%, Class M-6,
1.200% and Class M-7, 2.200%. On the first Distribution Date after the Optional
Termination Date, the Pass-Through Margins shall increase to: Class A-1, 0.180%,
Class A-3, 0.340%; Class M-1, 0.525%; Class M-2, 0.555%;
Class M-3, 0.750%, Class M-4, 0.825%, Class M-6, 1.800% and Class M-7,
3.300%.
Pass-Through
Rate: With respect to the Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class
M-3,
Class M-4 Class M-6 and Class M-7 Certificates, a rate per annum equal to the
lesser of (i) LIBOR plus the related Pass-Through Margin and (ii) the WAC
Cap.
With
respect to the Class A-2 Certificates, a rate per annum equal to (a) on or
prior
to the first possible Optional Termination Date, 5.531% or (b) after the first
possible Optional Termination Date, 6.031%.
With
respect to the Class M-5 Certificates, a rate per annum equal to the lesser
of
(i) (a) on or prior to the first possible Optional Termination Date 7.218%
or
(b) after the first possible Optional Termination Date, 7.718% and (ii) the
WAC
Cap.
With
respect to the Class B-1 Certificates, a rate per annum equal to the lesser
of
(i) (a) on or prior to the first possible Optional Termination Date 6.900%
or
(b) after the first possible Optional Termination Date, 7.400% and (ii) the
WAC
Cap.
With
respect to the Class B-2 Certificates, a rate per annum equal to the lesser
of
(i) (a) on or prior to the first possible Optional Termination Date 6.900%
or
(b) after the first possible Optional Termination Date, 7.400% and (ii) the
WAC
Cap.
With
respect to the Class X Certificates and any Distribution Date, a rate per annum
equal to the percentage equivalent of a fraction, the numerator of which is
the
sum of the amounts calculated pursuant to clauses (a) through (n) below, and
the
denominator of which is the aggregate Uncertificated Balances of REMIC I Regular
Interest I-LTAA, REMIC I Regular Interest I-LTA1, REMIC I Regular Interest
I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular Interest I-LTM1, REMIC
I Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular
Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular Interest
I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I Regular Interest I-LTB1, REMIC
I Regular Interest I-LTB2 and REMIC I Regular Interest I-LTZZ. For purposes
of
calculating the Pass-Through Rate for the Class X Certificates, the numerator
is
equal to the sum of the following components:
(a) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTAA minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTAA;
(b) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTA1 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTA1;
(c) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTA2 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTA2;
(d) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTA3 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTA3;
(e) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTM1 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTM1;
(f) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTM2 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTM2;
(g) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTM3 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTM3;
(h) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTM4 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTM4;
(i) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTM5 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTM5;
(j) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTM6 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTM6;
(k) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTM7 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTM7;
(l) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTB1 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTB1;
(m) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTB2 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTB2; and
(n) the
REMIC
I Remittance Rate for REMIC I Regular Interest I-LTZZ minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC I Regular
Interest I-LTZZ.
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
any
Servicer, the Trustee, the Securities Administrator or any of their respective
Affiliates:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) demand
and time deposits in, certificates of deposit of, or bankers’ acceptances (which
shall each have an original maturity of not more than 90 days and, in the case
of bankers’ acceptances, shall in no event have an original maturity of more
than 365 days or a remaining maturity of more than 30 days) denominated in
United States dollars and issued by any Depository Institution and rated P-1
by
Moody’s, F-1 by Fitch and A-1+ by Standard & Poor’s (in each case, to the
extent they are designated as Rating Agencies in the Preliminary
Statement);
(iii) repurchase
obligations with respect to any security described in clause (i) above
entered into with a Depository Institution (acting as principal);
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any state thereof
and that are rated by each Rating Agency that rates such securities in its
highest long-term unsecured rating categories at the time of such investment
or
contractual commitment providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by each
Rating Agency that rates such securities in its highest short-term unsecured
debt rating available at the time of such investment;
(vi) units
of
money market funds, including money market funds advised by the Depositor or
the
Securities Administrator or an Affiliate thereof, that have been rated “Aaa” by
Moody’s, “AAAm” or “AAAm-G” by Standard & Poor’s and at least “AA” by Fitch
(in each case, to the extent they are designated as Rating Agencies in the
Preliminary Statement); and
(vii) if
previously confirmed in writing to the Securities Administrator, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agencies as a permitted
investment of funds backing “Aaa” or “AAA” rated securities;
provided,
however, that no instrument described hereunder shall evidence either the right
to receive (a) only interest with respect to the obligations underlying
such instrument or (b) both principal and interest payments derived from
obligations underlying such instrument and the interest and principal payments
with respect to such instrument provide a yield to maturity at par greater
than
120% of the yield to maturity at par of the underlying obligations. For
investments in the Distribution Account (except during the Securities
Administrator Float Period), only the obligations or securities (or instruments
which invest in the obligations or securities) specified in clause (i) above
shall constitute Permitted Investments.
Permitted
Transferee: Any Person other than (i) the United States, any State or
political subdivision thereof, or any agency or instrumentality of any of the
foregoing, (ii) a foreign government, international organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers’ cooperatives described in Section 521 of the Code)
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on
any excess inclusions (as defined in Section 860E(c)(1) of the Code) with
respect to any Residual Certificate, (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) a
Person that is not a U.S. Person or a U.S. Person with respect to whom income
from a Residual Certificate is attributable to a foreign permanent establishment
or fixed base (within the meaning of an applicable income tax treaty) of such
Person or any other U.S. Person, (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 either 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.
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 portion of the related Prepayment Period
occurring in the calendar month preceding such Remittance Date, the subject
of a
Principal Prepayment, an amount equal to the product of (a) the Mortgage
Interest Rate net of the Servicing Fee Rate for such Mortgage Loan, (b) the
amount of the Principal Prepayment for such Mortgage Loan, (c) 1/360 and
(d) the number of days commencing on the date on which such Principal
Prepayment was applied and ending on the last day of the last day of the related
Prepayment Period.
Prepayment
Period: With respect to any Distribution Date, Ocwen and AHMSI, and each
Principal Prepayment in Full and each partial Principal Prepayment, the calendar
month prior to the month of such Distribution Date. With respect to any
Distribution Date, IndyMac and each Principal Prepayment in Full and each
partial Principal Prepayment, the related Due Period.
Prepayment
Premium: Any prepayment premium or charge collected by the applicable Servicer
with respect to a Mortgage Loan from a Mortgagor in connection with any
voluntary Principal Prepayment pursuant to the terms of the related Mortgage
Note.
Principal
Distribution Amount: For any Distribution Date, the sum of (i) the Basic
Principal Distribution Amount for such Distribution Date and (ii) the Extra
Principal Distribution Amount for such Distribution Date.
Principal
Prepayment: Any full or partial payment of principal on a Mortgage Loan which
is
received in advance of its scheduled Due Date, excluding any Prepayment Premium
and which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the
month
of prepayment.
Principal
Prepayment in Full: Any Principal Prepayment made by a Mortgagor of the entire
principal balance of a Mortgage Loan.
Principal
Remittance Amount: With respect to any Distribution Date, the amount equal
to
the sum of the following amounts (without duplication) with respect to the
related Due Period: (i) each Scheduled Payment of principal on a Mortgage
Loan due during such Due Period and received by the applicable Servicer on
or
prior to the related Determination Date or advanced by the applicable Servicer
for the related Remittance Date (ii) all Principal Prepayments received
during the related Prepayment Period, (iii) all Liquidation Proceeds,
Condemnation Proceeds and Insurance Proceeds on the Mortgage Loans allocable
to
principal actually collected by the applicable Servicer during the related
Prepayment Period, (iv) the portion of the Repurchase Price allocable to
principal with respect to each Deleted Mortgage Loan, the repurchase obligation
for which arose during the related Prepayment Period, that was repurchased
during the period from the prior Determination Date through the Determination
Date for the current Distribution Date, (v) the portion of all Substitution
Adjustment Amounts allocable to principal with respect to the substitutions
of
Mortgage Loans that occur during the calendar month in which such Distribution
Date occurs, and (vi) the allocable portion of the proceeds received with
respect to the termination of the Trust Fund pursuant to clause (a) of
Section 11.01 (to the extent such proceeds relate to
principal).
Privacy
Laws: Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as amended, and all
applicable regulations promulgated thereunder.
Private
Certificates: As specified in the Preliminary Statement.
Prospectus
Supplement: The Prospectus Supplement, dated June 7, 2006, relating to the
Offered Certificates.
PTCE
95-60: As defined in Section 5.02(b).
PUD:
A
planned unit development.
Purchase
Agreements: The Fremont Purchase Agreement, the American Home Purchase Agreement
or the IndyMac Purchase Agreement, as applicable.
Purchaser:
Xxxxxxx Xxxxx Mortgage Company, a New York limited partnership, and its
successors in interest, as purchaser of the Mortgage Loans under the Purchase
Agreements.
Rating
Agency: Each of the Rating Agencies specified in the Preliminary Statement.
If
such organization or a successor is no longer in existence, “Rating Agency”
shall be such nationally recognized statistical rating organization, or other
comparable Person, as is designated by the Depositor, notice of which
designation shall be given to the Trustee and the Securities Administrator.
References herein to a given rating or rating category of a Rating Agency shall
mean such rating category without giving effect to any modifiers. For purposes
of Section 12.05(b), the addresses for notices to each Rating Agency shall
be the address specified therefor in the definition corresponding to the name
of
such Rating Agency, or such other address as either such Rating Agency may
hereafter furnish to the Depositor, the Securities Administrator, the Trustee
and the Servicers.
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 applicable Servicer in connection with the liquidation
of such Liquidated Mortgage Loan and net of the amount of unreimbursed Servicing
Advances with respect to such Liquidated Mortgage Loan. Any Charged Off Loan
will give rise to a Realized Loss (calculated as if clause (b) of the previous
sentence is equal to zero) at the time it is charged off, as described in
Section 3.15(c) hereof.
Record
Date: With respect to any Distribution Date, the close of business on the last
day of the related Interest Accrual Period; provided, however, that for any
Certificate issued in definitive form, the Record Date shall be the close of
business on the last Business Day of the month preceding the month in which
such
applicable Distribution Date occurs.
Reference
Bank: As defined in Section 4.04.
Regular
Certificates: As specified in the Preliminary Statement.
Regulation
AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§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.
Released
Loan: Any Charged Off Loan that is released by Ocwen to the Class X-1
Certificateholder pursuant to Section 3.15(b). Any Released Loan will no longer
be an asset of any REMIC or the Trust Fund.
Relief
Act Interest Shortfall: With respect to any Distribution Date and any Mortgage
Loan, any reduction in the amount of interest or principal collectible on such
Mortgage Loan for the most recently ended Due Period as a result of the
application of the Servicemembers Civil Relief Act, or any similar state
statutes.
REMIC:
A
“real estate mortgage investment conduit” within the meaning of
Section 860D of the Code.
REMIC
I:
As specified in the Preliminary Statement.
REMIC
I
Interest Loss Allocation Amount: With respect to any Distribution Date, an
amount equal to (a) the product of (i) the aggregate Stated Principal Balance
of
the Mortgage Loans and REO Properties then outstanding and (ii) the REMIC I
Remittance Rate for REMIC I Regular Interest I-LTAA minus the Marker Rate,
divided by (b) 12.
REMIC
I
Overcollateralization Amount: With respect to any date of determination, (i)
1.00% of the aggregate Uncertificated Balances of the REMIC I Regular Interests
minus (ii) the aggregate of the Uncertificated Balances of REMIC I Regular
Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I Regular Interest
I-LTA3, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC
I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular
Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular Interest
I-LTM7, REMIC I Regular Interest I-LTB1 and REMIC I Regular Interest I-LTB2,
in
each case as of such date of determination.
REMIC
I
Principal Loss Allocation Amount: With respect to any Distribution Date, an
amount equal to (a) the product of (i) 1.00% of the aggregate Stated Principal
Balance of the Mortgage Loans and REO Properties then outstanding and (ii)
1
minus a fraction, the numerator of which is two times the aggregate of the
Uncertificated Balances of REMIC I Regular Interest I-LTA1, REMIC I Regular
Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular Interest
I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC
I Regular Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular
Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I Regular Interest
I-LTB1 and REMIC I Regular Interest I-LTB2 and the denominator of which is
the
aggregate of the Uncertificated Balances of REMIC I Regular Interest I-LTA,
REMIC I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I
Regular Interest I-LTA3, REMIC I Regular Interest I-LTM1, REMIC I Regular
Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular Interest
I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC
I Regular Interest I-LTM7, REMIC I Regular Interest I-LTB1, REMIC I Regular
Interest I-LTB2 and REMIC I Regular Interest I-LTZZ.
REMIC
I
Regular Interest: Any of the separate non-certificated beneficial ownership
interests in REMIC I issued hereunder and designated as a “regular interest” in
REMIC I. Each REMIC I Regular Interest shall accrue interest at the related
REMIC I Remittance Rate in effect from time to time, and shall be entitled
to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Balance as set forth in
the
Preliminary Statement hereto. The designations for the respective REMIC I
Regular Interests are set forth in the Preliminary Statement
hereto.
REMIC
I
Regular Interest I-LTAA: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTAA shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTA1: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTA1 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTA2: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTA2 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTA3: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTA3 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTM1: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTM1 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTM2: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTM2 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTM3: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTM3 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTM4: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTM4 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTM5: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTM5 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTM6: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTM6 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTM7: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTM7 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTB1: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTB1 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTB2: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTB3 shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Regular Interest I-LTZZ: One of the separate non-certificated beneficial
ownership interests in REMIC I issued hereunder and designated as a Regular
Interest in REMIC I. REMIC I Regular Interest I-LTZZ shall accrue interest
at
the related REMIC I Remittance Rate in effect from time to time, and shall
be
entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Balance
as
set forth in the Preliminary Statement hereto.
REMIC
I
Remittance Rate: With respect to each REMIC I Regular Interest, a per annum
rate
equal to (i) 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.
REMIC
I
Required Overcollateralization Amount: 1% of the Overcollateralization
Floor.
REMIC
II:
The segregated pool of assets consisting of all of the REMIC I Regular Interests
conveyed in trust to the Trustee, for the benefit of the REMIC II
Certificateholders pursuant to Section 2.07, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
REMIC
II
Certificate: Any Regular Certificate.
REMIC
II
Certificateholder: The Holder of any REMIC II Certificate.
REMIC
Opinion: As defined in Section 11.03.
REMIC
Provisions: Provisions of the federal income tax law relating to real estate
mortgage investment conduits, which appear at Sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
promulgated thereunder, as the foregoing may be in effect from time to time
as
well as provisions of applicable state laws.
Remittance
Date: With respect to any Distribution Date, no later than the close of business
on the 18th
day of
the month of such Distribution Date, or if such 18th
day is
not a Business Day, the Business Day immediately following such 18th
day.
REO
Disposition: The final sale by the applicable Servicer of any REO
Property.
REO
Imputed Interest: As to any REO Property, for any period, an amount equivalent
to interest (at the Mortgage Interest Rate net of the Servicing Fee Rate that
would have been applicable to the related Mortgage Loan had it been outstanding)
on the unpaid principal balance of the Mortgage Loan as of the date of
acquisition thereof (as such balance is reduced pursuant to Section 3.15 by
any income from the REO Property treated as a recovery of
principal).
REO
Property: A Mortgaged Property acquired by the Trust Fund through foreclosure
or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
Reportable
Event: As defined in Section 8.12(g).
Reporting
Date: The 10th
day of
each calendar month or the immediately following Business Day if the
10th
is not a
Business Day.
Repurchase
Price: With respect to any Mortgage Loan repurchased by the Purchaser, an amount
equal to the sum of (i) the unpaid principal balance of such Mortgage Loan
as of the date of repurchase, (ii) interest on such unpaid principal
balance of such Mortgage Loan at the Mortgage Interest Rate from the last date
through which interest has been paid and distributed to the Securities
Administrator to the date of repurchase, (iii) all unreimbursed Servicing
Advances, (iv) any costs and damages incurred by the Trust in connection with
any violation by such Mortgage Loan of any predatory lending law or abusive
lending, and (v) all expenses incurred by the applicable Servicer, the Master
Servicer, the Trust or the Trustee, as the case may be, in respect of a breach
or defect, including, without limitation, expenses arising out of any
Servicer’s, the Master Servicer’s or the Trustee’s, as the case may be,
enforcement of the Purchaser’s repurchase obligations, to the extent not
included in clause (iii). With respect to any Mortgage Loan repurchased by
Fremont, the Repurchase Price as that term is defined in the Fremont Purchase
Agreement. With respect to any Mortgage Loan repurchased by IndyMac, the
Repurchase Price as that term is defined in the IndyMac Purchase Agreement.
With
respect to any Mortgage Loan repurchased by American Home, the Repurchase Price
as that term is defined in the American Home Sale Agreement.
Request
for Release: The Request for Release submitted by the Servicer to the Trustee,
substantially in the form of Exhibit J.
Residual
Certificates: As specified in the Preliminary Statement.
Residual
Interest: The sole class of “residual interests” in a REMIC within the meaning
of Section 860G(a)(2) of the Code.
Responsible
Officer: When used with respect to the Trustee, the Master Servicer or the
Securities Administrator, any vice president, any assistant vice president,
any
assistant secretary, any assistant treasurer, any associate or any other officer
of the Trustee, the Master Servicer or the Securities Administrator customarily
performing functions similar to those performed by any of the above designated
officers who at such time shall be officers to whom, with respect to a
particular matter, such matter is referred because of such officer’s knowledge
of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement.
Rule 144A
Letter: As defined in Section 5.02(b).
Sarbanes
Certification: As defined in Section 8.12(c).
Scheduled
Payment: The scheduled monthly payment on a Mortgage Loan due on any Due Date
allocable to principal and/or interest on such Mortgage Loan which, unless
otherwise specified herein, shall give effect to any related Debt Service
Reduction and any Deficient Valuation that affects the amount of the monthly
payment due on such Mortgage Loan.
Securities
Act: The Securities Act of 1933, as amended.
Securities
Administrator: Xxxxx Fargo Bank, N.A.
Securities
Administrator Float Period: The period from the Remittance Date to the related
Distribution Date.
Senior
Enhancement Percentage: With respect to any Distribution Date, the percentage
obtained by dividing (x) the sum of (i) the aggregate Class
Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date.
Senior
Specified Enhancement Percentage: As of any date of determination,
66.20%.
Servicer:
Ocwen, AHMSI or IndyMac, as applicable.
Servicer
Cumulative Loss Trigger: With respect to any Distribution Date and each
Servicer, a Servicer Cumulative Loss Trigger exists if the Cumulative Loss
Percentage for the Mortgage Loans serviced by such Servicer exceeds the
applicable percentages set forth below with respect to such Distribution
Date:
Distribution
Date Occurring In
|
Loss
Percentage
|
July
2008 through June 2009
|
2.80%
for the first month, plus an additional 1/12th
of
2.90% for each month thereafter
|
July
2009 through June 2010
|
5.70%
for the first month, plus an additional 1/12th
of
2.85% for each month thereafter
|
July
2010 through June 2011
|
8.55%
for the first month, plus an additional 1/12th
of
2.20% for each month thereafter
|
July
2011 through June 2012
|
10.75%
for the first month, plus an additional 1/12th
of
0.75% for each month thereafter
|
July
2012 and thereafter
|
11.50%
|
Servicer
Delinquency Trigger: With respect to any Distribution Date and each Servicer,
a
Servicer Delinquency Trigger exists if (i) the quotient (expressed as a
percentage) of (1) the rolling three-month average of the aggregate unpaid
principal balance of 60+ Day Delinquent Mortgage Loans serviced by such
servicer, divided by (2) the aggregate unpaid principal balance of the Mortgage
Loans serviced by such servicer as of the last day of the related Due Period,
equals or exceeds 20.00% of the Senior Enhancement Percentage as of the last
day
of the prior Due Period.
Servicer
Remittance Report: As defined in Section 4.03(d).
Servicing
Advances: The reasonable “out-of-pocket” costs and expenses (including legal
fees) incurred prior to, on, or after the Cut-off Date by the applicable
Servicer in the performance of its servicing obligations in connection with
a
default, delinquency or other unanticipated event, including, but not limited
to, the cost of (i) the preservation, restoration, inspection and
protection of a Mortgaged Property, (ii) any enforcement, administrative or
judicial proceedings, including foreclosures and litigation, in respect of
a
particular Mortgage Loan, (iii) the management (including reasonable fees
in connection therewith) and liquidation of any REO Property and (iv) the
performance of its obligations under Sections 3.01, 3.13 and 3.15
(including the cost of obtaining any broker’s price opinion pursuant thereto).
Servicing Advances also include any reasonable “out-of-pocket” costs and
expenses (including legal fees) incurred by the Servicer in connection with
executing and recording instruments of satisfaction, deeds of reconveyance
or
Assignments of Mortgage in connection with any satisfaction or foreclosures
in
respect of any Mortgage Loan to the extent not recovered from the Mortgagor
or
otherwise payable under this Agreement and obtaining or correcting any legal
documentation required to be included in the Mortgage Files and necessary for
the Servicer to perform its obligations under this Agreement, including
correcting any outstanding title issues (i.e., any lien or encumbrance on the
Mortgaged Property that prevents the effective enforcement of the intended
lien
position). The applicable Servicer shall not be required to make any
Nonrecoverable Servicing Advances.
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d) of Regulation AB,
which as of the Closing Date are listed on Exhibit R hereto.
Servicing
Fee: With respect to each Servicer, each Mortgage Loan serviced by such Servicer
and for any Distribution Date, an amount equal to the product of
(i) one-twelfth of the Servicing Fee Rate and (ii) the applicable
Stated Principal Balance of such Mortgage Loan as of the first day of the
calendar month preceding the month in which such Distribution Date occurs.
Such
fee shall be payable monthly, and shall be pro rated for any portion of a month
during which the Mortgage Loan is serviced by such Servicer under this
Agreement. The Servicing Fee is payable solely from the interest portion
(including recoveries with respect to interest from Liquidation Proceeds,
Insurance Proceeds, Condemnation Proceeds and proceeds received with respect
to
REO Properties, to the extent permitted by Section 3.11) of such Scheduled
Payment collected by such Servicer or as otherwise provided under
Section 3.11.
Servicing
Fee Rate: With respect to each Mortgage Loan, 0.50% per annum.
Servicing
File: With respect to each Mortgage Loan, the file retained by the applicable
Servicer consisting of originals or copies of all documents in the Mortgage
File
which are not delivered to the Trustee in the Custodial File and copies of
the
Mortgage Loan Documents set forth in Exhibit K hereto.
Servicing
Officer: Any officer of any Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans whose name and facsimile
signature appear on a list of servicing officers furnished to the Master
Servicer and the Trustee by such Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
Servicing
Transfer Costs: All reasonable out-of-pocket costs and expenses incurred by
the
Master Servicer and the Trustee, as applicable, in connection with the transfer
of servicing from a terminated Servicer, including, without limitation, any
such
costs or expenses associated with the complete transfer of all servicing data
and the completion, correction or manipulation of such servicing data as may
be
required by the Master Servicer to correct any errors or insufficiencies in
the
servicing data or otherwise to enable the Master Servicer (or any successor
Servicer appointed pursuant to Section 7.02) to service the Mortgage Loans
properly and effectively.
Similar
Law: As defined in Section 5.02(b).
60+
Day
Delinquent Mortgage Loan: Each Mortgage Loan with respect to which any portion
of a Scheduled Payment is, as of the last day of the prior Due Period, two
months or more 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.
Specified
Overcollateralized Amount: Prior to the Stepdown Date, an amount equal to 5.65%
of the Cut-off Date Pool Principal Balance. On and after the Stepdown Date,
an
amount equal to 11.30% of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date, subject, until the Class Certificate Balance
of each Class of Offered Certificates and the Class B-1 Certificates and Class
B-2 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 until the Distribution Date
on
which a Trigger Event is no longer occurring.
Standard
& Poor’s: Standard & Poor’s Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors in interest. If Standard &
Poor’s is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 12.05(b) the address for notices to Standard &
Poor’s shall be Standard & Poor’s, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Surveillance Group - GSAMP Trust 2006-S4,
or such other address as Standard & Poor’s may hereafter furnish to the
Depositor, the Securities Administrator, the Servicers and the
Trustee.
Standard
& Poor’s Glossary: Version 5.6 of the Standard & Poor’s LEVELS®
Glossary.
Start-up
Day: As defined in Section 2.06.
Stated
Principal Balance: As to each Mortgage Loan and as of any date of determination,
(i) the principal balance of the Mortgage Loan at the Cut-off Date after
giving effect to payments of principal due on or before such date, minus
(ii) all amounts previously remitted to the Securities Administrator with
respect to the related Mortgage Loan representing payments or recoveries of
principal including advances in respect of Scheduled Payments of principal.
For
purposes of any Distribution Date, the Stated Principal Balance of any Mortgage
Loan will give effect to any Scheduled Payments of principal received by the
applicable Servicer on or prior to the related Determination Date or advanced
by
the applicable Servicer for the related Remittance Date and any unscheduled
principal payments and other unscheduled principal collections received during
the related Prepayment Period, and the Stated Principal Balance of any Mortgage
Loan that has prepaid in full or has become a Liquidated Mortgage Loan during
the related Prepayment Period shall be zero.
Stepdown
Date: The earlier to occur of (a) the date on which the aggregate Class
Certificate Balance of the Class A Certificates has been reduced to zero,
and (b) the later to occur of (i) the Distribution Date in July 2009,
and (ii) the first Distribution Date on which the Senior Enhancement
Percentage is greater than or equal to the Senior Specified Enhancement
Percentage.
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 and, in the case of a Charged Off
Loan,
prior to such Liquidated Mortgage Loan becoming a Released Loan.
Subservicer:
As defined in Section 3.02(a).
Subservicing
Account: As defined in Section 3.08.
Subservicing
Agreements: As defined in Section 3.02(a).
Substitute
Mortgage Loan: A Mortgage Loan substituted by an Original Loan Seller or the
Purchaser for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in a Request for Release, substantially in the form
of Exhibit J, (i) have a Stated Principal Balance, after deduction of
the principal portion of the Scheduled Payment due in the month of substitution,
not in excess of, and not more than 10% less than, the Stated Principal Balance
of the Deleted Mortgage Loan; (ii) be accruing interest at a rate no lower
than and not more than 1% per annum higher than, that of the Deleted Mortgage
Loan; (iii) have a CLTV no higher than that of the Deleted Mortgage Loan;
(iv) have a remaining term to maturity no greater than (and not more than
one year less than that of) the Deleted Mortgage Loan; and (v) comply with
each related representation and warranty set forth in
Section 2.03.
Substitution
Adjustment Amount: The meaning ascribed to such term pursuant to Section
2.03(g).
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).
Terminating
Purchase: The purchase of all Mortgage Loans and each REO Property pursuant
to
Section 11.01 hereof.
Termination
Price: The greater of (i) the Par Price and (ii) the Fair Market Value
Price.
30
Day
Delinquency: The failure of the Mortgagor to make any Scheduled Payment due
under the Mortgage Note on or prior to the date which is 30 days after such
payment’s Due Date.
Total
Monthly Excess Spread: As to any Distribution Date, an amount equal to the
excess if any, of (i) the interest collected on the Mortgage Loans received
by the applicable Servicer on or prior to the related Determination Date or
advanced by the applicable Servicer for the related Remittance Date (net of
Expense Fees) over (ii) the sum of amounts payable to the Offered
Certificates and the Class B-1 Certificates and Class B-2 Certificates on such
Distribution Date pursuant to Section 4.02(a)(i).
Transfer:
Any direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
Transfer
Affidavit: As defined in Section 5.02(c).
Transferor
Certificate: As defined in Section 5.02(b).
Trigger
Event: With respect to any Distribution Date, a Trigger Event exists if
(i) the quotient (expressed as a percentage) of (1) the rolling three
month average of the aggregate unpaid principal balance of 60+ Day
Delinquent Mortgage Loans, divided by (2) the aggregate unpaid principal
balance of the Mortgage Loans as of the last day of the related Due Period,
equals or exceeds 12.00% 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 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
|
July
2008 through June 2009
|
2.30%
for the first month, plus an additional 1/12th of 2.90% for each
month
thereafter
|
July
2009 through June 2010
|
5.20%
for the first month, plus an additional 1/12th of 2.85% for each
month
thereafter
|
July
2010 through June 2011
|
8.05%
for the first month, plus an additional 1/12th of 2.20% for each
month
thereafter
|
July
2011 through June 2012
|
10.25%
for the first month, plus an additional 1/12th of 0.75% for each
month
thereafter
|
July
2012 and thereafter
|
11.00%
|
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
Collection Account, the Excess Reserve Fund Account, the Distribution Account,
and all amounts deposited therein pursuant to the applicable provisions of
this
Agreement; (iii) property that secured a Mortgage Loan and has been
acquired by foreclosure, deed-in-lieu of foreclosure or otherwise, (iv) the
Yield Maintenance Agreement, (v) the Depositor’s rights under the Fremont
Agreements, the American Home Agreements and the IndyMac Agreements and
(vi) all proceeds of the conversion, voluntary or involuntary, of any of
the foregoing.
Trust
REMIC: Either REMIC I or REMIC II, as applicable.
Trustee:
Deutsche Bank National Trust Company, and its successors in interest and, if
a
successor trustee is appointed hereunder, such successor.
Trustee
Fee: As to each Mortgage Loan and any Distribution Date, an amount as agreed
by
the Trustee and the Securities Administrator, which shall be payable by the
Securities Administrator from its own funds.
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.
Uncertificated
Balance: The amount of the REMIC I Regular Interests outstanding as of any
date
of determination. As of the Closing Date, the Uncertificated Balance of each
REMIC I Regular Interest shall equal the amount set forth in the Preliminary
Statement hereto as its initial uncertificated balance. On each Distribution
Date, the Uncertificated Balance of the REMIC I Regular Interest shall be
reduced by all distributions of principal made on such REMIC I Regular Interest
on such Distribution Date pursuant to Section 4.06 and, if and to the extent
necessary and appropriate, shall be further reduced on such Distribution Date
by
Realized Losses as provided in Section 4.05 and the Uncertificated Balance
of
REMIC I Regular Interest I-LTZZ shall be increased by interest deferrals as
provided in Section 4.06. The Uncertificated Balance of each REMIC I Regular
Interest shall never be less than zero.
Uncertificated
Interest: With respect to any REMIC I Regular Interest for any Distribution
Date, one month’s interest at the REMIC I Remittance Rate applicable to such
REMIC I Regular Interest for such Distribution Date, accrued on the
Uncertificated Balance thereof immediately prior to such Distribution Date.
Uncertificated Interest in respect of the REMIC I Regular Interests shall accrue
on the basis of a 360-day year consisting of twelve 30-day months.
Uncertificated Interest with respect to each Distribution Date, as to any REMIC
I Regular Interest, shall be reduced by an amount equal to the sum of (a) the
aggregate Prepayment Interest Shortfall, if any, for such Distribution Date
to
the extent not covered by payments pursuant to Section 3.25 of this Agreement
and (b) the aggregate amount of any Relief Act Interest Shortfall, if any
allocated, in each case, to such REMIC I Regular Interest pursuant to Section
4.02. In addition, Uncertificated Interest with respect to each Distribution
Date, as to any Uncertificated REMIC Regular Interest, shall be reduced by
Realized Losses, if any, allocated to such Uncertificated REMIC Regular Interest
pursuant to Section 4.05.
Underwriter:
Xxxxxxx, Xxxxx & Co.
Underwriters’
Exemption: Any exemption listed in footnote 1 of, and amended by,
Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487 (2002), or any
successor exemption.
Underwriting
Guidelines: The underwriting guidelines attached to the applicable Purchase
Agreement.
Unpaid
Interest Amounts: As of any Distribution Date and any Class of Certificates,
the
sum of (a) the portion of the Accrued Certificate Interest Distribution
Amount from prior Distribution Dates remaining unpaid immediately prior to
the
current Distribution Date and (b) interest on such unpaid amount in clause
(a) at the applicable Pass-Through Rate (to the extent permitted by applicable
law).
Voting
Rights: The portion of the voting rights of all of the Certificates which is
allocated to any Certificate. As of any date of determination, (a) 1% of
all Voting Rights shall be allocated to the Class X Certificates, if any
(such Voting Rights to be allocated among the holders of Certificates of each
such Class in accordance with their respective Percentage Interests),
(b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any, and (c) the remaining Voting Rights shall be
allocated among Holders of the remaining Classes of Certificates (other than
the
Class R Certificates and Class X-1 Certificates) in proportion to the
Certificate Balances of their respective Certificates on such date. The Class
R,
Class RC and Class X-1 Certificates shall have no Voting Rights.
WAC
Cap:
With respect to the Mortgage Loans as of any Distribution Date, a per annum
rate
equal to (i) 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 (ii) with respect to each Class of LIBOR Certificates, multiplied
by a fraction, the numerator of which is 30 and the denominator of which is
the
actual number of days in the Interest Accrual Period related to such
Distribution Date (which shall be deemed to be 30 for the July 2006 Distribution
Date). For federal income tax purposes, the equivalent of the foregoing shall
be
expressed as the weighted average of the REMIC I Remittance Rates on each REMIC
I Regular Interest, weighted on the basis of the Uncertificated Balance of
each
such REMIC I Regular Interest.
Yield
Maintenance Agreement: The yield maintenance agreement dated June 9, 2006,
between the Purchaser and the Yield Maintenance Provider, in the form attached
hereto as Exhibit V.
Yield
Maintenance Payments: An amount equal to the product of (a) the number of
basis points by which (i) one-month LIBOR (determined in accordance with
the terms of the Yield Maintenance Agreement) exceeds (ii) 6.00%, (b) a
notional amount equal to the lesser of (A) the amount set forth as the yield
maintenance notional amount on the schedule attached to the Yield Maintenance
Agreement and (B) the aggregate Class Certificate Balance of the LIBOR
Certificates, and (c) the actual number of days in the applicable Interest
Accrual Period divided by 360.
Yield
Maintenance Provider: Xxxxxxx Sachs Mitsui Marine Derivative Products, L.P.,
a
Delaware limited partnership, and its successors in interest.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
REPRESENTATIONS
AND WARRANTIES
Section
2.01 Conveyance
of Mortgage Loans. (a)
The
Depositor, concurrently with the execution and delivery hereof, hereby sells,
transfers, assigns, sets over and otherwise conveys to the Trustee for the
benefit of the Certificateholders, without recourse, all the right, title and
interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf
of the Trust, hereby accepts the Trust Fund.
(b) In
connection with the transfer and assignment of each Mortgage Loan, the Depositor
has delivered or caused to be delivered to the Trustee for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) the
original Mortgage Note (except for up to 0.16% of the Mortgage Notes for which
there is a lost note affidavit and a copy of the Mortgage Note) bearing all
intervening endorsements, endorsed “Pay to the order of _________, without
recourse” and signed in the name of the last endorsee. To the extent that there
is no room on the face of the Mortgage Notes for endorsements, the endorsement
may be contained on an allonge unless state law does not so allow and the
Trustee has been advised by the applicable Original Loan Seller that state
law
does not so allow. If the Mortgage Loan was acquired by the applicable Original
Loan Seller in a merger, the endorsement must be by “[last endorsee], successor
by merger to [name of predecessor]”. If the Mortgage Loan was acquired or
originated by the last endorsee while doing business under another name, the
endorsement must be by “[last endorsee], formerly known as [previous
name]”;
(ii) the
original of any guarantee executed in connection with the Mortgage
Note;
(iii) the
original Mortgage with evidence of recording thereon or a certified true copy
of
such Mortgage submitted for recording. If in connection with any Mortgage Loan,
the applicable Original Loan Seller, cannot deliver or cause to be delivered
the
original Mortgage with evidence of recording thereon on or prior to the Closing
Date because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage has been
lost or because such public recording office retains the original recorded
Mortgage, the applicable Original Loan Seller shall deliver or cause to be
delivered to the Trustee, a photocopy of such Mortgage, together with
(i) in the case of a delay caused by the public recording office, an
officer’s certificate of the applicable Original Loan Seller (or evidence of
certification on the face of such photocopy of such Mortgage) or certified
by
the title company, escrow agent, or closing attorney stating that such Mortgage
has been dispatched to the appropriate public recording office for recordation
and that the original recorded Mortgage or a copy of such Mortgage certified
by
such public recording office to be a true and complete copy of the original
recorded Mortgage will be promptly delivered to the Trustee upon receipt thereof
by the applicable Original Loan Seller; or (ii) in the case of a Mortgage
where a public recording office retains the original recorded Mortgage or in
the
case where a Mortgage is lost after recordation in a public recording office,
a
copy of such Mortgage certified by such public recording office to be a true
and
complete copy of the original recorded Mortgage;
(iv) the
originals of all assumption, modification, and except with respect to the
IndyMac Mortgage Loan consolidation or extension agreements, (if provided),
with
evidence of recording thereon or a certified true copy of such agreement
submitted for recording;
(v) except
with respect to each MERS Designated Mortgage Loan, the original Assignment
of
Mortgage for each Mortgage Loan endorsed in blank and in recordable
form;
(vi) the
originals of all intervening assignments of mortgage (if any) evidencing a
complete chain of assignment from the applicable originator (or MERS with
respect to each MERS Designated Mortgage Loan) to the last endorsee with
evidence of recording thereon, or if any such intervening assignment has not
been returned from the applicable recording office or has been lost or if such
public recording office retains the original recorded assignments of mortgage,
the applicable Original Loan Seller shall deliver or cause to be delivered
to
the Trustee, a photocopy of such intervening assignment, together with
(1) in the case of a delay caused by the public recording office, an
officer’s certificate of the applicable Original Loan Seller (or evidence of
certification on the face of such photocopy of such intervening assignment
of
mortgage) or certified by the title company, escrow agent, or closing attorney
stating that such intervening assignment of mortgage has been dispatched to
the
appropriate public recording office for recordation and that such original
recorded intervening assignment of mortgage or a copy of such intervening
assignment of mortgage certified by the appropriate public recording office
to
be a true and complete copy of the original recorded intervening assignment
of
mortgage will be promptly delivered to the Trustee upon receipt thereof by
the
applicable Original Loan Seller; or (2) in the case of an intervening
assignment where a public recording office retains the original recorded
intervening assignment or in the case where an intervening assignment is lost
after recordation in a public recording office, a copy of such intervening
assignment certified by such public recording office to be a true and complete
copy of the original recorded intervening assignment;
(vii) (A)
except with respect to the IndyMac Mortgage Loans, the original (or a copy
of)
the mortgagee policy of title insurance or, in the event such original title
policy is unavailable, a certified true copy of the related policy binder or
commitment for title certified to be true and complete by the title insurance
company or (B) with respect to the IndyMac Mortgage Loans, a certificate of
title or attorney’s opinion of title (accompanied by an abstract of
title);
(viii) a
security agreement, chattel mortgage or equivalent document executed in
connection with the Mortgage (if provided); and
(ix) except
with respect to the Fremont Mortgage Loans, the original or a copy, certified
by
the appropriate recording office (or by American Home in the case of the
American Home Mortgage Loans), of the recorded power of attorney, if the
Mortgage Loan was executed pursuant to a power of attorney, with evidence of
its
recording (to the extent required) in the case of the IndyMac Mortgage
Loans.
Each
Mortgage Loan for which a Mortgage Note is missing shall be evidenced by a
lost
note affidavit as of the Closing Date. In the event one or more lost note
affidavits are provided to cover multiple missing Mortgage Notes on the Closing
Date, the Depositor shall use reasonable efforts to cause the Purchaser to
deliver to the Trustee the applicable individual lost note affidavits within
ten
(10) Business Days of the Closing Date. If the Purchaser fails to deliver
the required individual lost note affidavits within the specified period of
time, the Trustee shall notify Fremont, American Home or IndyMac, as applicable,
to take such remedial actions, including, without limitation, the repurchase
by
the Fremont of any Fremont Mortgage Loan within 30 days of the Closing Date,
or
the repurchase by American Home or IndyMac of any American Home Mortgage Loan
or
IndyMac Mortgage Loan, respectively, within 90 days of the Closing
Date.
The
Depositor shall use reasonable efforts to cause the Purchaser to deliver to
the
Trustee the applicable recorded document promptly upon receipt from the
respective recording office but in no event later than 180 days from the Closing
Date.
If
any
Mortgage has been recorded in the name of Mortgage Electronic Registration
System, Inc. (“MERS”) or its designee, no Assignment of Mortgage in favor of the
Trustee will be required to be prepared or delivered and instead, the applicable
Servicer shall take all reasonable actions as are necessary at the expense
of
the Depositor to cause the Trust to be shown as the owner of the related
Mortgage Loan on the records of MERS for the purpose of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
The
Depositor shall use reasonable efforts to cause the Purchaser to forward to
the
Trustee additional documents evidencing an assumption, modification,
consolidation or extension of a Mortgage Loan approved by the applicable
Original Loan Seller in accordance with the terms of the applicable Purchase
Agreement. All such mortgage documents held by the Trustee as to each Mortgage
Loan shall constitute the “Custodial
File.”
On
or
prior to the Closing Date, the Depositor shall use reasonable efforts to cause
the Purchaser to deliver to the Trustee Assignments of Mortgages, in blank,
for
each applicable Mortgage Loan (except with respect to each MERS Designated
Mortgage Loan). The Depositor shall use reasonable efforts to cause the
Purchaser to cause the Assignments of Mortgage with completed recording
information to be provided to the Servicer in a reasonably acceptable manner.
No
later than thirty (30) Business Days following the later of the Closing Date
and
the date of receipt by the applicable Servicer of the fully completed
Assignments of Mortgages in recordable form, the Depositor shall promptly submit
or cause to be submitted for recording, at the expense of the Purchaser, at
no
expense to the Trust Fund, the Depositor, the Master Servicer, the Securities
Administrator, the applicable Servicer or the Trustee in the appropriate public
office for real property records, each Assignment of Mortgage referred to in
Section 2.01(b)(v). Notwithstanding the foregoing, for administrative
convenience and facilitation of servicing and to reduce closing costs, the
Assignments of Mortgage shall not be required to be submitted for recording
(i)
(except with respect to any Mortgage Loan located in Maryland) unless the
Trustee and the Depositor receive written notice that such failure to record
would result in a withdrawal or a downgrading by any Rating Agency of the rating
on any Class of Certificates or (ii) if such Mortgage Loan is a MERS Designated
Mortgage Loan; provided, however, each Assignment of Mortgage that is not a
MERS
Designated Mortgage Loan shall be submitted for recording in the manner
described above, at no expense to the Trust Fund or Trustee, upon the earliest
to occur of: (i) reasonable direction by the Holders of Certificates entitled
to
at least 25% of the Voting Rights, (ii) the occurrence of an Event of Default,
(iii) upon receipt of notice from the Servicer, the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Mortgagor under the related Mortgage
and (iv) upon receipt of notice from the Servicer, any Mortgage Loan that is
90
days or more Delinquent. In the event of (i) through (iv) set forth in the
immediately preceding sentence, upon request of the Depositor, the Trustee
shall
enforce the obligations of the Purchaser to deliver such Assignments of Mortgage
for recording as provided above, promptly and in any event within 30 days
following receipt of notice by the Purchaser. Notwithstanding the foregoing,
if
the Purchaser fails to pay the cost of recording the Assignments of Mortgage,
such expense will be paid by the Trustee from the assets of the Trust. In the
event an Assignment of Mortgage is not recorded, neither the Trustee nor the
applicable Servicer will have any liability for its failure to act on notices
that were not received and would have been received if such Assignment had
been
recorded. If the Assignment of Mortgage is to be recorded, the Depositor shall
use reasonable efforts to cause the Purchaser to assign the Mortgage, at the
Purchaser’s expense, to “Deutsche Bank National Trust Company, as trustee under
the Pooling and Servicing Agreement dated as of June 1, 2006, GSAMP Trust
2006-S4.” In the event that any such assignment is lost or returned unrecorded
because of a defect therein, the Depositor shall use reasonable efforts to
cause
the Purchaser to promptly prepare a substitute assignment to cure such defect
and thereafter cause each such assignment to be duly recorded at the expense
of
the Purchaser.
On
or
prior to the Closing Date, the Depositor shall deliver to the Trustee, the
Master Servicer and the applicable Servicer a copy of the Data Tape Information
in electronic, machine readable medium in a form mutually acceptable to the
Depositor, the Master Servicer and the Trustee. Within ten (10) Business Days
of
the Closing Date, the Depositor shall deliver a copy of the complete Mortgage
Loan Schedule to the Master Servicer, the Securities Administrator, the Trustee
and each Servicer, and the Trustee shall promptly, upon receipt of the Mortgage
Loan Schedule (or any other mortgage loan schedules received by the Trustee
from
the Depositor), inform the Depositor of receipt thereof.
In
the
event that such original or copy of any document submitted for recordation
to
the appropriate public recording office is not so delivered to the Trustee
within 90 days following the Closing Date, and in the event that the Purchaser
does not cause such failure to be cured within 60 days of discovery of receipt
of written notification of such failure from the Depositor, the Depositor shall
cause the repurchase of such Mortgage Loan by the Purchaser at the price and
in
the manner specified in Section 2.03. The foregoing repurchase obligation shall
not apply in the event that the Purchaser cannot deliver such original or copy
of any document submitted for recordation to the appropriate public recording
office within the specified period due to a delay caused by the recording office
in the applicable jurisdiction; provided, that the Purchaser 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
Purchaser 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 Purchaser shall
be
deemed to have been satisfied upon delivery by the Purchaser to the Trustee
prior to the Closing Date of a copy of such Mortgage or assignment, as the
case
may be, certified (such certification to be an original thereof) by the public
recording office to be a true and complete copy of the recorded original
thereof.
(c) The
Depositor does hereby establish, pursuant to the further provisions of this
Agreement and the laws of the State of New York, an express trust (the “Trust”)
to be known, for convenience, as “GSAMP Trust 2006-S4” and Deutsche Bank
National Trust Company is hereby appointed as Trustee in accordance with the
provisions of this Agreement. The parties hereto acknowledge and agree that
it
is the policy and intention of the Trust to acquire only Mortgage Loans meeting
the requirements set forth in this Agreement, including the requirement that
no
Mortgage Loan be a High Cost Mortgage Loan and no Mortgage Loan originated
on or
after October 1, 2002 through March 6, 2003 be governed by the Georgia
Fair Lending Act.
(d) The
Trust
shall have the capacity, power and authority, and the Trustee on behalf of
the
Trust is hereby authorized, to accept the sale, transfer, assignment, set over
and conveyance by the Depositor to the Trust of all the right, title and
interest of the Depositor in and to the Trust Fund (including, without
limitation, the Mortgage Loans, the Fremont Assignment Agreement, the IndyMac
Assignment Agreement and the American Home Assignment Agreement) pursuant to
Section 2.01(a).
Section
2.02 Acceptance
by the Trustee of the Mortgage Loans.
The
Trustee, on behalf of the Trust, hereby accepts the Trust Fund and assumes
(i)
the obligations of the Depositor under the Fremont Agreements from and after
the
Closing Date solely insofar as they relate to the Fremont Mortgage Loans, (ii)
the obligations of the Depositor under the IndyMac Agreements from and after
the
Closing Date solely insofar as they relate to the IndyMac Mortgage Loans and
(iii) the obligations of the Depositor under the American Home Agreements from
and after the Closing Date solely insofar as they relate to the American Home
Mortgage Loans. For
avoidance of doubt, the parties acknowledge that all obligations so assumed
are
obligations of the Trust and, to the extent such obligations are payment or
monetary obligations, are payable solely from the Trust Fund, and not of the
Trustee in its individual capacity. The
Trustee acknowledges receipt of the documents identified in the Initial
Certification 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. The Trustee acknowledges that it
will
maintain possession of the related Mortgage Notes in the State of California,
unless otherwise permitted by the Rating Agencies.
Prior
to
and as a condition to the Closing, the Trustee shall deliver via facsimile
(with
original to follow the next Business Day) to the Depositor, the Master Servicer
and the applicable Servicer an Initial Certification prior to the Closing Date,
or as the Depositor agrees to, on the Closing Date, certifying receipt of a
Mortgage Note and Assignment of Mortgage for each Mortgage Loan with any
exceptions thereon. The Trustee shall not be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodial File.
On
the
Closing Date, the Trustee shall ascertain that all documents required to be
reviewed by it are in its possession, and shall deliver to the Depositor, the
Master Servicer and the applicable Servicer an Initial Certification, in the
form annexed hereto as Exhibit E, and shall deliver to the Depositor, the
Master Servicer and the applicable Servicer a Document Certification and
Exception Report, in the form annexed hereto as Exhibit F, within 90 days
after the Closing Date (or with respect to any Substitute Mortgage Loan
delivered to the Trustee, within 30 days after the receipt of the Mortgage
File
by the Trustee) to the effect that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in such certification as an exception
and
not covered by such certification): (i) all documents required to be
reviewed by it are in its possession; (ii) such documents have been
reviewed by it and appear regular on their face and relate to such Mortgage
Loan; (iii) based on its examination and only as to the foregoing
documents, the information set forth in items (1), (2) and (13) of the Mortgage
Loan Schedule and items (1), (2) and (13) of the Data Tape Information
respecting such Mortgage Loan is correct; and (iv) each Mortgage Note has
been endorsed as provided in Section 2.01 of this Agreement. The Trustee
shall not be responsible to verify the validity, sufficiency or genuineness
of
any document in any Custodial File.
The
Trustee shall retain possession and custody of each Custodial File in accordance
with and subject to the terms and conditions set forth herein. The applicable
Servicer shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of such other documents or instruments constituting
the
Custodial File as come into the possession of such Servicer from time to
time.
The
Depositor shall use reasonable efforts to cause the Purchaser to deliver to
the
applicable Servicer copies of all trailing documents required to be included
in
the Custodial File at the same time the original or certified copies thereof
are
delivered to the Trustee, including but not limited to such documents as the
title insurance policy and any other Mortgage Loan Documents upon return from
the public recording office. The Depositor shall use reasonable efforts to
cause
the Purchaser to deliver such documents, at the Purchaser’s expense, as
applicable, to the applicable Servicer and in no event shall such Servicer
be
responsible for any expenses relating to such delivery obligation.
Section
2.03 Representations,
Warranties and Covenants of the Servicers.
(a)
Ocwen
hereby makes the representations and warranties set forth in Schedule II
hereto to the Depositor and the Trustee as of the Closing Date. IndyMac hereby
makes the representations and warranties set forth in Schedule III hereto
to the Depositor and the Trustee as of the Closing Date. AHMSI hereby makes
the
representations and warranties set forth in Schedule IV hereto to the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
as
of the Closing Date.
(b) It
is
understood and agreed by each Servicer that the representations and warranties
set forth in this Section 2.03 shall survive the transfer of the Mortgage
Loans by the Depositor to the Trustee, and shall inure to the benefit of the
Depositor, and the Trustee notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment of Mortgage or the examination
or
failure to examine any Mortgage File. Upon discovery by any of the Depositor,
the Master Servicer, the Securities Administrator, the Trustee or each Servicer
of a breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the
others.
(c) Within
30
days of the earlier of either discovery by or notice to the Purchaser and the
Depositor that any Mortgage Loan does not conform to the requirements as
determined in the Trustee’s review of the related Custodial File, the Depositor
and the Purchaser shall each use its best efforts to cause to be remedied a
material defect in a document constituting part of a Mortgage File and, if
such
defect cannot be remedied within 30 days (in the case of a Fremont Mortgage
Loan) or 60 days (in the case of an IndyMac Mortgage Loan or an American Home
Mortgage Loan), (i) Fremont, IndyMac or American Home, as applicable, may remove
such Mortgage Loan (a “Deleted
Mortgage Loan”)
from
the Trust Fund and substitute in its place a Substitute Mortgage Loan, in the
manner and subject to the conditions set forth in this Section 2.03, or
(ii) Fremont, IndyMac or American Home, as applicable, pursuant to the
Fremont Agreements, IndyMac Agreements or American Home Agreements may
repurchase such Mortgage Loan at the Repurchase Price;
provided,
however,
that
any such substitution pursuant to clause (i) above shall not be effected
prior to the delivery to the Trustee of the Opinion of Counsel required by
Section 2.04, if any, and to the Trustee, a Request for Release
substantially in the form of Exhibit J, and the Mortgage File for any such
Substitute Mortgage Loan.
(d) With
respect to any Substitute Mortgage Loan or Loans, the Depositor shall deliver
or
caused to be delivered to the Trustee for the benefit of the Certificateholders
the Mortgage Note, the Mortgage, the related assignment of mortgage, and such
other documents and agreements as are required by Section 2.01, with the
Mortgage Note endorsed and the Mortgage assigned as required by
Section 2.01. No substitution is permitted to be made in any calendar month
after the Determination Date for such month. Scheduled Payments due with respect
to Substitute Mortgage Loans in the Due Period of substitution shall not be
part
of the Trust Fund and will be retained by the applicable Original Loan Seller
on
the next succeeding Distribution Date. For the Due Period of substitution,
distributions to Certificateholders will include the Scheduled Payment due
on
any Deleted Mortgage Loan for such Due Period and thereafter the applicable
Original Loan Seller shall be entitled to retain all amounts received in respect
of such Deleted Mortgage Loan.
(e) The
Depositor shall, based on information provided by the Fremont, IndyMac or
American Home, as applicable, amend the Mortgage Loan Schedule for the benefit
of the Certificateholders to reflect the removal of such Deleted Mortgage Loan
and the substitution of the Substitute Mortgage Loan or Loans and the Depositor
shall deliver the amended Mortgage Loan Schedule to the applicable Servicer
and
the Trustee. The Depositor shall have no liability with respect to the
information provided by Fremont or the Purchaser related to any Substitute
Mortgage Loan. Upon such substitution, the Substitute Mortgage Loan or Loans
shall be subject to the terms of this Agreement in all respects. Upon any such
substitution and the deposit to the Collection Account of the amount required
to
be deposited therein in connection with such substitution as described in the
following paragraph, the Trustee shall release the Mortgage File held for the
benefit of the Certificateholders relating to such Deleted Mortgage Loan to
the
Purchaser or the applicable Original Loan Seller, as applicable, and shall
execute and deliver at the direction of the Purchaser or the applicable Original
Loan Seller, as applicable, such instruments of transfer or assignment prepared
by the Purchaser or the applicable Original Loan Seller, as applicable, in
each
case without recourse, as shall be necessary to vest title in the Purchaser
or
the applicable Original Loan Seller, as applicable, or its designee, the
Trustee’s interest in any Deleted Mortgage Loan substituted for pursuant to this
Section 2.03.
(f) For
any
month in which the applicable Original Loan Seller substitutes one or more
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Depositor
will determine the amount (if any) by which the aggregate unpaid principal
balance of all such Substitute Mortgage Loans as of the date of substitution
is
less than the aggregate Stated Principal Balance of all such Deleted Mortgage
Loans (after application of the scheduled principal portion of the Scheduled
Payments due in the Due Period of substitution). The Depositor shall use
reasonable efforts to cause the amount of such shortage (the “Substitution
Adjustment Amount”)
plus
an amount equal to the aggregate of any unreimbursed Advances and Servicing
Advances with respect to such Deleted Mortgage Loans to be remitted, by Fremont,
IndyMac or American Home, as applicable, to the applicable Servicer for deposit
into the Collection Account on or before the next Remittance Date.
(g) In
the
event that a Mortgage Loan shall have been repurchased pursuant to this
Agreement, the Fremont Agreements, the IndyMac Agreements or the American Home
Agreements, the Repurchase Price thereof shall be deposited in the Collection
Account by the applicable Servicer pursuant to Section 3.10 on or before
the next Remittance Date and upon such deposit of the Repurchase Price, and
receipt of a Request for Release in the form of Exhibit J hereto, the
Trustee shall release the related Custodial File held for the benefit of the
Certificateholders to such Person as directed by such Servicer, and the Trustee
shall execute and deliver at such Person’s direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
as shall be necessary to transfer title from the Trustee. It is understood
and
agreed that the obligation under this Agreement of any Person to cure,
repurchase or replace any Mortgage Loan as to which a breach has occurred and
is
continuing, together with satisfaction of any related indemnification
obligations, shall constitute the sole remedy against such Persons respecting
such breach available to Certificateholders, the Depositor, the Securities
Administrator, the Master Servicer, each Servicer or the Trustee on their
behalf.
The
representations and warranties made pursuant to this Section 2.03 shall
survive delivery of the respective Custodial Files to the Trustee for the
benefit of the Certificateholders.
Section
2.04 [RESERVED].
Section
2.05 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
2.06 REMIC
Matters.
The
Preliminary Statement sets forth the designations for federal income tax
purposes of all interests created hereby. The “Start-up Day” for purposes of the
REMIC Provisions shall be the Closing Date. The “latest possible maturity date”
is the Distribution Date in May 2036, which is the Distribution Date following
the latest Mortgage Loan maturity date.
Section
2.07 Representations
and Warranties of the Depositor.
The
Depositor hereby represents, warrants and covenants to the Trustee, the Master
Servicer, the Securities Administrator and each Servicer that as of the date
of
this Agreement or as of such date specifically provided herein:
(a) The
Depositor is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware;
(b) The
Depositor has the corporate power and authority to convey the Mortgage Loans
and
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement;
(c) This
Agreement has been duly and validly authorized, executed and delivered by the
Depositor, all requisite corporate action having been taken, and, assuming
the
due authorization, execution and delivery hereof by the Servicers and the
Trustee, constitutes or will constitute the legal, valid and binding agreement
of the Depositor, enforceable against the Depositor in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, and by general equity principles (regardless
of
whether such enforcement is considered in a proceeding in equity or at
law);
(d) No
consent, approval, authorization or order of or registration or filing with,
or
notice to, any governmental authority or court is required for the execution,
delivery and performance of or compliance by the Depositor with this Agreement
or the consummation by the Depositor of any of the transactions contemplated
hereby, except as have been made on or prior to the Closing Date;
(e) None
of
the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby or thereby, or the fulfillment of or compliance
with the terms and conditions of this Agreement, (i) conflicts or will
conflict with or results or will result in a breach of, or constitutes or will
constitute a default or results or will result in an acceleration under
(A) the charter or bylaws of the Depositor, or (B) of any term,
condition or provision of any material indenture, deed of trust, contract or
other agreement or instrument to which the Depositor or any of its subsidiaries
is a party or by which it or any of its subsidiaries is bound; (ii) results
or will result in a violation of any law, rule, regulation, order, judgment
or
decree applicable to the Depositor of any court or governmental authority having
jurisdiction over the Depositor or its subsidiaries; or (iii) results in
the creation or imposition of any lien, charge or encumbrance which would have
a
material adverse effect upon the Mortgage Loans or any documents or instruments
evidencing or securing the Mortgage Loans;
(f) There
are
no actions, suits or proceedings before or against or investigations of, the
Depositor pending, or to the knowledge of the Depositor, threatened, before
any
court, administrative agency or other tribunal, and no notice of any such
action, which, in the Depositor’s reasonable judgment, might materially and
adversely affect the performance by the Depositor of its obligations under
this
Agreement, or the validity or enforceability of this Agreement;
(g) The
Depositor is not in default with respect to any order or decree of any court
or
any order, regulation or demand of any federal, state, municipal or governmental
agency that may materially and adversely affect its performance
hereunder;
(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, and
(i) It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.07 shall survive delivery of the respective
Custodial Files to the Trustee and shall inure to the benefit of the
Trustee.
Section
2.08 Enforcement
of Obligations for Breach of Mortgage Loan Representations.
Upon
discovery by any of the parties hereto of a breach of a representation or
warranty made by Fremont or the Purchaser pursuant to the Fremont Agreements,
IndyMac or the Purchaser pursuant to the IndyMac Agreements, or American Home
or
the Purchaser pursuant to the American Home Agreements, the party discovering
such breach shall give prompt written notice thereof to the other parties to
this Agreement and to Fremont, IndyMac, American Home or the Purchaser, as
applicable. The Trustee shall take such action, as directed by the Depositor,
with respect to such breach under the related Assignment Agreement, as may
be
necessary or appropriate to enforce the rights of the Trust with respect
thereto.
Section
2.09 Purposes
and Powers of the Trust.The
purpose of the common law trust, as created hereunder, is to engage in the
following activities:
(a) acquire
and hold the Mortgage Loans and the other assets of the Trust Fund and the
proceeds therefrom;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(c) to
make
payments on the Certificates;
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
The
trust
is hereby authorized to engage in the foregoing activities. The Trustee shall
not cause the trust to engage in any activity other than in connection with
the
foregoing and as required or authorized by the terms of this Agreement while
any
Certificate is outstanding.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
MORTGAGE LOANS
Section
3.01 Servicers
to Service Mortgage Loans. (a)
For and
on behalf of the Certificateholders, each Servicer shall service and administer
the Mortgage Loans in accordance with the terms of this Agreement and the
respective Mortgage Loans, to the extent consistent with such terms, in
compliance with all applicable federal, state and local laws, and in the same
manner in which it services and administers similar mortgage loans for its
own
portfolio, giving due consideration to customary and usual standards of practice
of mortgage lenders and loan servicers administering similar mortgage loans
but
without regard to:
(i) any
relationship that such Servicer, any Subservicer or any Affiliate of such
Servicer or any Subservicer may have with the related Mortgagor;
(ii) the
ownership or non-ownership of any Certificate by such Servicer or any Affiliate
of such Servicer;
(iii) such
Servicer’s obligation to make P&I Advances or Servicing Advances;
or
(iv) such
Servicer’s or any Subservicer’s right to receive compensation for its services
hereunder or with respect to any particular transaction.
To
the
extent consistent with the foregoing, each Servicer shall seek to maximize
the
timely and complete recovery of principal and interest on the related Mortgage
Notes. Subject only to the above-described servicing standards and the terms
of
this Agreement and of the respective Mortgage Loans, each Servicer shall have
full power and authority, acting alone or through Subservicers as provided
in
Section 3.02, to do or cause to be done any and all things in connection
with such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, each Servicer in its own
name
or in the name of a Subservicer is hereby authorized and empowered by the
Trustee when the applicable Servicer believes it appropriate in its best
judgment in accordance with Accepted Servicing Practices, to execute and deliver
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with respect to
the
related Mortgage Loans and the Mortgaged Properties and to institute foreclosure
proceedings or obtain a deed-in-lieu of foreclosure so as to convert the
ownership of such properties, and to hold or cause to be held title to such
properties, on behalf of the Trustee and in the name of the Trust. Each Servicer
shall service and administer the Mortgage Loans in accordance with applicable
state and federal law and shall provide to the Mortgagors any reports required
to be provided to them thereby. Subject to Section 3.16, the Trustee shall
execute, at the written request of a Servicer, and furnish to such Servicer
and
any Subservicer such documents as are necessary or appropriate to enable such
Servicer or any Subservicer to carry out their servicing and administrative
duties hereunder, and the Trustee hereby grant to each Servicer, and this
Agreement shall constitute, a power of attorney to carry out such duties
including a power of attorney to take title to Mortgaged Properties after
foreclosure on behalf of the Trustee and in the name of the Trust. At the
request of the Servicers, the Trustee shall execute a reasonable number of
powers of attorney in the form attached hereto as Exhibit P in favor of each
Servicer for the purposes described herein to the extent necessary or desirable
to enable each Servicer to perform its duties hereunder. The Trustee shall
not
be liable for the actions of any Servicer or any Subservicers under such powers
of attorney. If any Servicer receives any notice of suit, litigation or
proceeding in the name of Deutsche Bank National Trust Company, then such
Servicer shall promptly forward a copy of same to the Trustee unless the notice
of said suit, litigation or proceeding was provided by the Trustee to each
Servicer.
(b) In
accordance with the standards of the preceding paragraph, each Servicer shall
advance or cause to be advanced funds as necessary for the purpose of effecting
the timely payment of taxes and assessments on the Mortgaged Properties (to
the
extent such Servicer has received reasonable timely notice that such taxes
or
assessments have not been paid by the related Mortgagor or the owner or the
servicer of the related First Lien Mortgage Loan), which advances shall be
Servicing Advances reimbursable in the first instance from related collections
from the Mortgagors, and further as provided in Section 3.11. Any cost
incurred by a Servicer or by Subservicers in effecting the timely payment of
taxes and assessments on a Mortgaged Property shall not be added to the unpaid
principal balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit. Notwithstanding anything in this Agreement
to
the contrary, however, the Servicer need not make any future advances with
respect to a Mortgage Loan if the Servicer makes a good faith determination
that
such advance would, if made, constitute a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, as set forth in Section 4.01.
(c) A
Servicer shall not (i) permit any modification with respect to any Mortgage
Loan that would change the Mortgage Interest Rate, reduce or increase the
principal balance (except for reductions resulting from actual payments of
principal) or change the final maturity date on such Mortgage Loan (except
for
(A) a reduction of interest or principal payments resulting from the
application of the Servicemembers Civil Relief Act or any similar state statutes
or (B) as provided in Section 3.07, if the Mortgagor is in default
with respect to the Mortgage Loan or such default is, in the judgment of such
Servicer, reasonably foreseeable) or (ii) permit any modification, waiver
or amendment of any term of any Mortgage Loan that would both (A) effect an
exchange or reissuance of such Mortgage Loan under Section 1001 of the Code
(or final, temporary or proposed Treasury regulations promulgated thereunder)
and (B) cause either Trust REMIC to fail to qualify as a REMIC under the
Code or the imposition of any tax on “prohibited transactions” or “contributions
after the start-up day” under the REMIC Provisions, or (iii) except as
provided in Section 3.07(a), waive any Prepayment Premiums.
(d) Each
Servicer may delegate its responsibilities under this Agreement; provided,
however,
that no
such delegation shall release that Servicer from the responsibilities or
liabilities arising under this Agreement.
(e) If
the
Mortgage relating to a Mortgage Loan had a related First Lien Mortgage Loan
on
the related Mortgaged Property as of the Cut-off Date, then each Servicer,
in
such capacity, may consent to the refinancing of the related First Lien Mortgage
Loan, provided that the following requirements are met:
(i) the
resulting Combined Loan-to-Value Ratio of such Mortgage Loan is no higher than
the Combined Loan-to-Value Ratio prior to such refinancing;
(ii) the
interest rate, or, in the case of an adjustable rate related First Lien Mortgage
Loan, the maximum interest rate, for the loan evidencing the refinanced senior
lien is no more than 2.0% higher than the interest rate or the maximum interest
rate, as the case may be, on the existing First Lien Mortgage Loan immediately
prior to the date of such refinancing; and
(iii) the
loan
evidencing the refinanced senior lien is not subject to negative
amortization.
Section
3.02 Subservicing
Agreements between a Servicer and Subservicers. (a)
Each
Servicer may enter into subservicing agreements with subservicers (each, a
“Subservicer”), for the servicing and administration of the Mortgage Loans
(“Subservicing Agreements”). Each Servicer represents and warrants to the other
parties hereto that no Subservicing Agreement is in effect as of the Closing
Date with respect to any Mortgage Loans required to be serviced by it hereunder.
Each Servicer shall give notice to the Depositor, the Master Servicer, the
Securities Administrator and the Trustee of any such Subservicer and
Subservicing Agreement, which notice shall contain all information (including
without limitation a copy of the Subservicing Agreement) reasonably necessary
to
enable the Securities Administrator, pursuant to Section 8.12, to
accurately and timely report the event under Item 6.02 of Form 8-K
pursuant to the Exchange Act (if such reports under the Exchange Act are
required to be filed under the Exchange Act). During the period when reports
are
required to be filed for the Trust under the Exchange Act, no Subservicing
Agreement shall be effective until 30 days after such written notice is received
by the Depositor, the Master Servicer and the Securities Administrator and
thereafter shall be effective at the time the applicable Servicer and any
Subservicer enter into any such Subservicing Agreement. None of the Securities
Administrator, the Master Servicer or the Trustee shall be required to review
or
consent to such Subservicing Agreements or shall have any liability in
connection therewith.
(b) Each
Subservicer shall be (i) authorized to transact business in the state or
states in which the related Mortgaged Properties it is to service are situated,
if and to the extent required by applicable law to enable the Subservicer to
perform its obligations hereunder and under the Subservicing Agreement,
(ii) an institution approved as a mortgage loan originator by the Federal
Housing Administration or an institution that has deposit accounts insured
by
the FDIC and (iii) a Xxxxxxx Mac or Xxxxxx Mae approved mortgage servicer.
Each Subservicing Agreement must impose on the Subservicer requirements
conforming to the provisions set forth in Section 3.08 and provide for
servicing of the Mortgage Loans consistent with the terms of this Agreement.
Each Servicer will examine each Subservicing Agreement and will be familiar
with
the terms thereof. The terms of any Subservicing Agreement will not be
inconsistent with any of the provisions of this Agreement. Each Servicer and
the
Subservicers may enter into and make amendments to the Subservicing Agreements
or enter into different forms of Subservicing Agreements; provided, however,
that any such amendments or different forms shall be consistent with and not
violate the provisions of this Agreement, and that no such amendment or
different form shall be made or entered into which could be reasonably expected
to be materially adverse to the interests of the Trustee, without the consent
of
the Master Servicer. Any variation without the consent of the Master Servicer
from the provisions set forth in Section 3.08 relating to insurance or
priority requirements of Subservicing Accounts, or credits and charges to the
Subservicing Accounts or the timing and amount of remittances by the
Subservicers to such Servicer, are conclusively deemed to be inconsistent with
this Agreement and therefore prohibited. Each Servicer shall deliver to the
Trustee, the Master Servicer, the Securities Administrator and the Depositor
copies of all Subservicing Agreements, and any amendments or modifications
thereof, promptly upon such Servicer’s execution and delivery of such
instruments.
(c) As
part
of its servicing activities hereunder, each Servicer (except as otherwise
provided in the last sentence of this paragraph), for the benefit of the
Trustee, shall enforce the obligations of each Subservicer under the related
Subservicing Agreement, including, without limitation, any obligation to make
advances in respect of delinquent payments as required by a Subservicing
Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Subservicing Agreements, and the pursuit
of other appropriate remedies, shall be in such form and carried out to such
an
extent and at such time as such Servicer, in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. Each Servicer
shall pay the costs of such enforcement at its own expense, and shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement, to the extent, if any, that such recovery exceeds all amounts
due
in respect of the related Mortgage Loans or (ii) from a specific recovery
of costs, expenses or attorneys’ fees against the party against whom such
enforcement is directed.
(d) Each
Servicer shall cause any Subservicer engaged by such Servicer (or by any
Subservicer) for the benefit of the Depositor, the Master Servicer, the
Securities Administrator and the Trustee to comply with the provisions of this
Section 3.02 and with Sections 3.22, 3.23 and 8.12 of this Agreement to the
same extent as if such Subservicer were such Servicer, and to provide the
information required with respect to such Subservicer under Section 8.12(g)
of this Agreement. Each Servicer shall be responsible for obtaining from each
such Subservicer and delivering to applicable Persons any servicer compliance
statement required to be delivered by such Subservicer under Section 3.22
and any assessment of compliance report and related accountant’s attestation
required to be delivered by such Subservicer under Section 3.23, in each
case as and when required to be delivered.
(e) Subject
to the conditions set forth in this Section 3.02, each Servicer and any
Subservicer engaged by such Servicer is permitted to utilize one or more
Subcontractors to perform certain of its obligations hereunder. Such Servicer
shall promptly upon request provide to the Depositor or the Master Servicer
a
written description (in form and substance satisfactory to the Depositor) of
the
role and function of each Subcontractor utilized by such Servicer or any such
Subservicer, specifying, not later than the date specified for delivery of
the
annual report on assessment of compliance set forth in Section 3.23 (i) the
identity of each such Subcontractor, if any, that is “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB,
and (ii) which elements of the Servicing Criteria will be addressed in
assessments of compliance provided by each Subcontractor identified pursuant
to
clause (i) of this paragraph. As a condition to the utilization by such
Servicer or any such Subservicer of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122
of Regulation AB, such Servicer shall cause any such Subcontractor used by
such Servicer (or by any such Subservicer) for the benefit of the Depositor,
the
Master Servicer, the Securities Administrator and the Trustee to comply with
the
provisions of Section 8.12 of this Agreement to the same extent as if such
Subcontractor were such Servicer. Such Servicer shall be responsible for
obtaining from each such Subcontractor and delivering to the applicable Persons
any assessment of compliance report and related accountant’s attestation
required to be delivered by such Subcontractor under Section 3.23, in each
case as and when required to be delivered.
Notwithstanding
the foregoing, if a Servicer engages a Subcontractor in connection with the
performance of any of its duties under this Agreement, such Servicer shall
be
responsible for determining whether such Subcontractor is a “servicer” within
the meaning of Item 1101 of Regulation AB and whether any such affiliate or
third-party vendor meets the criteria in Item 1108(a)(2)(i) through (iii) of
Regulation AB. If a Servicer determines, pursuant to the preceding
sentence, that such Subcontractor is a “servicer” within the meaning of
Item 1101 of Regulation AB and meets the criteria in Item
1108(a)(2)(i) through (iii) of Regulation AB, then such Subcontractor shall
be deemed to be a Subservicer for purposes of this Agreement (and shall not
be
required to meet the requirements of a Subservicer set forth in Section
3.02(b)), the engagement of such Subservicer shall not be effective unless
and
until notice is given pursuant to Section 3.02(a) and such Servicer shall
comply with Section 3.02(d) with respect thereto.
Section
3.03 Successor
Subservicers.
Each
Servicer shall be entitled to terminate any Subservicing Agreement and the
rights and obligations of any Subservicer pursuant to any Subservicing Agreement
in accordance with the terms and conditions of such Subservicing Agreement;
provided, however, that during the period when reports are required to be filed
for the Trust under the Exchange Act, the termination, resignation or removal
of
a Subservicer shall be not be effective until 30 days after written notice
is
received by both the Depositor, the Master Servicer and the Securities
Administrator that contains all information reasonably necessary to enable
the
Securities Administrator, pursuant to Section 8.12, to accurately and timely
report the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if
such reports under the Exchange Act are required to be filed under the Exchange
Act). In the event of termination of any Subservicer, all servicing obligations
of such Subservicer shall be assumed simultaneously by the applicable Servicer
without any act or deed on the part of such Subservicer or such Servicer, and
such Servicer either shall service directly the related Mortgage Loans or shall
enter into a Subservicing Agreement with a successor Subservicer which qualifies
under Section 3.02.
Any
Subservicing Agreement shall include the provision that such agreement may
be
immediately terminated by the Depositor or the Master Servicer without fee,
in
accordance with the terms of this Agreement, in the event that the Servicer
shall, for any reason, no longer be a Servicer (including termination due to
an
Event of Default).
Section
3.04 Liability
of the Servicer.
Notwithstanding any Subservicing Agreement, any of the provisions of this
Agreement relating to agreements or arrangements between a Servicer and a
Subservicer or reference to actions taken through a Subservicer or otherwise,
such Servicer shall remain obligated and primarily liable to the Trustee for
the
servicing and administering of the Mortgage Loans in accordance with the
provisions of Section 3.01 without diminution of such obligation or
liability by virtue of such Subservicing Agreements or arrangements or by virtue
of indemnification from the Subservicer and to the same extent and under the
same terms and conditions as if such Servicer alone were servicing and
administering such Mortgage Loans. Each Servicer shall be entitled to enter
into
any agreement with a Subservicer for indemnification of such Servicer by such
Subservicer and nothing contained in this Agreement shall be deemed to limit
or
modify such indemnification.
Section
3.05 No
Contractual Relationship between Subservicers, the Trustee and the Master
Servicer.
Any
Subservicing Agreement that may be entered into and any transactions or services
relating to the Mortgage Loans involving a Subservicer in its capacity as such
shall be deemed to be between the Subservicer and the related Servicer alone,
and neither the Trustee nor the Master Servicer (or any successor to such
Servicer) shall be deemed a party thereto or shall have any claims, rights,
obligations, duties or liabilities with respect to the Subservicer except as
set
forth in Section 3.06. Each Servicer shall be solely liable for all fees
owed by it to any Subservicer, irrespective of whether the Servicer’s
compensation pursuant to this Agreement is sufficient to pay such
fees.
Section
3.06 Assumption
or Termination of Subservicing Agreements by Master Servicer.
In the
event a Servicer at any time shall for any reason no longer be the Servicer
(including by reason of the occurrence of an Event of Default), the Master
Servicer, or its designee, or the successor Servicer if the successor Servicer
is not the Master Servicer, shall thereupon assume all of the rights and
obligations of such Servicer under each Subservicing Agreement that such
Servicer may have entered into, with copies thereof provided to the Master
Servicer prior to the Master Servicer assuming such rights and obligations,
unless the Master Servicer elects to terminate any Subservicing Agreement in
accordance with its terms as provided in Section 3.03.
Upon
such
assumption, the Master Servicer, its designee or the successor servicer shall
be
deemed, subject to Section 3.03, to have assumed all of such Servicer’s
interest therein and to have replaced such Servicer as a party to each
Subservicing Agreement to which the predecessor Servicer was a party to the
same
extent as if each Subservicing Agreement had been assigned to the assuming
party, except that (i) such Servicer shall not thereby be relieved of any
liability or obligations under any Subservicing Agreement that arose before
it
ceased to be a Servicer and (ii) none of the Depositor, the Master
Servicer, the Trustee, their designees or any successor to the Servicer shall
be
deemed to have assumed any liability or obligation of such Servicer that arose
before it ceased to be a Servicer.
Each
Servicer at its expense shall, upon request of the Master Servicer, deliver
to
the assuming party all documents and records relating to each Subservicing
Agreement and the Mortgage Loans then being serviced by it and an accounting
of
amounts collected and held by or on behalf of it, and otherwise use its best
efforts to effect the orderly and efficient transfer of the Subservicing
Agreements to the assuming party.
Section
3.07 Collection
of Certain Mortgage Loan Payments. (a)
Each
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable insurance policies, follow such collection procedures as
it
would follow with respect to mortgage loans comparable to the Mortgage Loans
and
held for its own account. Consistent with the foregoing and Accepted Servicing
Practices, each Servicer may (i) waive any late payment charge or, if
applicable, any penalty interest, or (ii) extend the Due Dates for the
Scheduled Payments due on a Mortgage Note for a period of not greater than
180 days; provided, that any extension pursuant to clause (ii) above
shall not affect the amortization schedule of any Mortgage Loan for purposes
of
any computation hereunder, except as provided below. In the event of any such
arrangement pursuant to clause (ii) above, the applicable Servicer shall
make timely advances on such Mortgage Loan during such extension to the extent
required by Section 4.01 and in accordance with the amortization schedule
of such Mortgage Loan without modification thereof by reason of such
arrangements, subject to Section 4.01(d) pursuant to which such Servicer
shall not be required to make any such advances that are Nonrecoverable P&I
Advances. Notwithstanding the foregoing, in the event that any Mortgage Loan
is
in default or in the judgment of the applicable Servicer, such default is
reasonably foreseeable, such Servicer, consistent with the standards set forth
in Section 3.01, may also waive, modify or vary any term of such Mortgage
Loan (including modifications that would change the Mortgage Interest Rate,
forgive the payment of principal or interest, extend the final maturity date
of
such Mortgage Loan or waive, in whole or in part, a Prepayment Premium), accept
payment from the related Mortgagor of an amount less than the Stated Principal
Balance in final satisfaction of such Mortgage Loan, or consent to the
postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor (any and all such waivers, modifications, variances,
forgiveness of principal or interest, postponements, or indulgences collectively
referred to herein as “Forbearance”); provided, however, that such Servicer’s
approval of a modification of a Due Date shall not be considered a modification
for purposes of this sentence; provided further, that the final maturity date
of
any Mortgage Loan may not be extended beyond the Final Scheduled Distribution
Date for the Offered Certificates. The applicable Servicer’s analysis supporting
any Forbearance and the conclusion that any Forbearance meets the standards
of
Section 3.01 shall be reflected in writing in the applicable Servicing File
or
on the applicable Servicer’s servicing records. In addition, notwithstanding the
foregoing, the Servicer may also waive (or permit a Subservicer to waive),
in
whole or in part, a Prepayment Premium if such waiver would, in the Servicer’s
judgment, maximize recoveries on the related Mortgage Loan or if such Prepayment
Premium is (i) not permitted to be collected by applicable law, or the
collection thereof would be considered “predatory” pursuant to written guidance
published by any applicable federal, state or local regulatory authority having
jurisdiction over such matters, or (ii) the enforceability thereof is
limited (1) by bankruptcy, insolvency, moratorium, receivership or other
similar laws relating to creditor’s rights or (2) due to acceleration in
connection with a foreclosure or other involuntary payment. If a Prepayment
Premium is waived other than as permitted in this Section 3.07(a), then the
applicable Servicer is required to pay the amount of such waived Prepayment
Premium, for the benefit of the Holders of the Class P Certificates, by
depositing such amount into the Collection Account together with and at the
time
that the amount prepaid on the related Mortgage Loan is required to be deposited
into the Collection Account; provided, however, that the applicable Servicer
shall not have an obligation to pay the amount of any uncollected Prepayment
Premium if the failure to collect such amount is the direct result of inaccurate
or incomplete information on the Mortgage Loan Schedule in effect at such
time.
(b) The
applicable Servicer shall give notice to the Master Servicer, the Securities
Administrator, the Trustee, each Rating Agency and the Depositor of any proposed
change of the location of the Collection Account within a reasonable period
of
time prior to any change thereof.
Section
3.08 Subservicing
Accounts.
In those
cases where a Subservicer is servicing a Mortgage Loan pursuant to a
Subservicing Agreement, the Subservicer will be required to establish and
maintain one or more accounts (collectively, the “Subservicing Account”). The
Subservicing Account shall be an Eligible Account and shall otherwise be
acceptable to the related Servicer. The Subservicer shall deposit in the
clearing account (which account must be an Eligible Account) in which it
customarily deposits payments and collections on mortgage loans in connection
with its mortgage loan servicing activities on a daily basis, and in no event
more than one Business Day after the Subservicer’s receipt thereof, all proceeds
of Mortgage Loans received by the Subservicer less its servicing compensation
to
the extent permitted by the Subservicing Agreement, and shall thereafter deposit
such amounts in the Subservicing Account, in no event more than two Business
Days after the deposit of such funds into the clearing account. The Subservicer
shall thereafter deposit such proceeds in the Collection Account or remit such
proceeds to the applicable Servicer for deposit in the Collection Account not
later than two Business Days after the deposit of such amounts in the
Subservicing Account. For purposes of this Agreement, such Servicer shall be
deemed to have received payments on the Mortgage Loans when the Subservicer
receives such payments.
Section
3.09 [Reserved].
Section
3.10 Collection
Account. (a)
On
behalf of the Trustee, each Servicer shall establish and maintain, or cause
to
be established and maintained, one or more segregated Eligible Accounts (each
such account or accounts, a “Collection Account”), held in trust for the benefit
of the Trustee. Funds in the Collection Account shall not be commingled with
any
other funds of the applicable Servicer. On behalf of the Trustee, each Servicer
shall deposit or cause to be deposited in the clearing account (which account
must be an Eligible Account) in which it customarily deposits payments and
collections on mortgage loans in connection with its mortgage loan servicing
activities on a daily basis, and in no event more than one Business Day after
such Servicer’s receipt thereof, and shall thereafter deposit in the Collection
Account, in no event more than two Business Days after the deposit of such
funds
into the clearing account, as and when received or as otherwise required
hereunder, the following payments and collections received or made by it
subsequent to the Cut-off Date (other than in respect of principal or interest
on the related Mortgage Loans due on or before the Cut-off Date), or payments
(other than Principal Prepayments) received by it on or prior to the related
Cut-off Date but allocable to a Due Period subsequent thereto:
(i) all
payments on account of principal, including Principal Prepayments, on the
Mortgage Loans;
(ii) all
payments on account of interest (net of the Servicing Fee) on each Mortgage
Loan;
(iii) all
Insurance Proceeds and Condemnation Proceeds (to the extent such Insurance
Proceeds and Condemnation Proceeds are not to be applied to the restoration
of
the related Mortgaged Property or released to the related Mortgagor in
accordance with the express requirements of law or in accordance with Accepted
Servicing Practices) and all Liquidation Proceeds;
(iv) any
amounts required to be deposited pursuant to Section 3.12 in connection
with any losses realized on Permitted Investments with respect to funds held
in
the Collection Account;
(v) any
amounts required to be deposited by such Servicer pursuant to the second
paragraph of Section 3.13(a) in respect of any blanket policy
deductibles;
(vi) all
proceeds of any Mortgage Loan repurchased or purchased in accordance with this
Agreement and any Substitution Adjustment Amount; and
(vii) all
Prepayment Premiums collected by such Servicer.
The
foregoing requirements for deposit in the Collection Accounts shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, any payments in the nature of late payment charges, NSF fees,
reconveyance fees, assumption fees and other similar fees and charges need
not
be deposited by each Servicer in the Collection Account and shall, upon
collection, belong to the applicable Servicer as additional compensation for
its
servicing activities. In the event a Servicer shall deposit in the Collection
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from the Collection Account, any provision herein to the
contrary notwithstanding.
(b) Funds
in
the Collection Account may be invested in Permitted Investments in accordance
with the provisions set forth in Section 3.12. Each Servicer shall give
notice to the Master Servicer, the Securities Administrator, the Trustee and
the
Depositor of the location of the Collection Account maintained by it when
established and prior to any change thereof.
Section
3.11 Withdrawals
from the Collection Account. (a)
Each
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes or as described in
Section 4.01:
(i) on
or
prior to the Remittance Date, to remit to the Securities Administrator all
Available Funds (which solely for purposes of this Section 3.11(a)(i) shall
not
be net of the Master Servicing Fee) in respect of the related Distribution
Date
together with all amounts representing Prepayment Premiums from the Mortgage
Loans received during the related Prepayment Period;
(ii) to
reimburse the applicable Servicer for P&I Advances, but only to the extent
of amounts received which represent Late Collections (net of the related
Servicing Fees) of Scheduled Payments on Mortgage Loans with respect to which
such P&I Advances were made in accordance with the provisions of
Section 4.01;
(iii) to
pay
such Servicer or any Subservicer (A) any unpaid Servicing Fees (including
such unpaid Servicing Fees as provided in Section 3.15) or (B) any
unreimbursed Servicing Advances with respect to each Mortgage Loan serviced
by
the Servicer, but only to the extent of any Late Collections, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds or other amounts as may
be
collected by such Servicer from a Mortgagor, or otherwise received with respect
to such Mortgage Loan (or the related REO Property);
(iv) to
pay to
such Servicer as servicing compensation (in addition to the Servicing Fee)
on
the Remittance Date any interest or investment income earned on funds deposited
in the Collection Account;
(v) to
pay
the Purchaser, the applicable Original Loan Seller or the Depositor, as
applicable, with respect to each Mortgage Loan that has previously been
repurchased or replaced pursuant to this Agreement all amounts received thereon
subsequent to the date of purchase or substitution, as the case may
be;
(vi) to
reimburse such Servicer for (A) any P&I Advance or Servicing Advance
previously made which such Servicer has determined to be a Nonrecoverable
P&I Advance or Nonrecoverable Servicing Advance in accordance with the
provisions of Section 4.01 and (B) any unpaid Servicing Fees to the
extent not recoverable from Liquidation Proceeds, Insurance Proceeds or other
amounts received with respect to the related Mortgage Loan under Section
3.11(a)(iii);
(vii) to
pay,
or to reimburse such Servicer for advances in respect of, expenses incurred
in
connection with any Mortgage Loan serviced by such Servicer pursuant to
Section 3.15;
(viii) to
reimburse the Master Servicer, such Servicer, the Depositor, the Securities
Administrator or the Trustee for expenses incurred by or reimbursable to the
Master Servicer, such Servicer, the Depositor, the Securities Administrator
or
the Trustee, as the case may be, pursuant to Section 6.03, Section 7.02 or
Section 8.05;
(ix) to
reimburse the Master Servicer, such Servicer or the Trustee, as the case may
be,
for expenses reasonably incurred in respect of the breach or defect giving
rise
to the repurchase obligation under Section 2.03 of this Agreement that were
included in the Repurchase Price of the Mortgage Loan, including any expenses
arising out of the enforcement of the repurchase obligation, to the extent
not
otherwise paid pursuant to the terms hereof;
(x) to
withdraw any amounts deposited in the Collection Account in error or for which
amounts previously deposited are returned due to a “not sufficient funds” or
other denial of payment by the related Mortgagor’s banking
institution;
(xi) to
withdraw any amounts held in the Collection Account and not required to be
remitted to the Securities Administrator on the Remittance Date occurring in
the
month in which such amounts are deposited into the Collection Account, to
reimburse the Servicer for xxxxxxxxxxxx X&X Advances;
(xii) to
invest
funds in Permitted Investments in accordance with Section 3.12;
and
(xiii) to
clear
and terminate the Collection Account upon termination of this
Agreement.
To
the
extent that a Servicer does not timely make the remittance referred to in
clause (i) above, such Servicer shall pay the Master Servicer for the
account of the Master Servicer interest on any amount not timely remitted at
the
prime rate, from and including the applicable Remittance Date to but excluding
the date such remittance is actually made.
(b) Each
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Collection Account, to the extent held by or on behalf of it, pursuant to
subclauses (a)(ii), (iii), (v), (vi), (vii), (viii) and (ix) above. Each
Servicer shall provide written notification to the Depositor, on or prior to
the
next succeeding Remittance Date, upon making any withdrawals from the related
Collection Account pursuant to subclauses (a)(vi) and (viii)
above.
Section
3.12 Investment
of Funds in the Collection Account and the Distribution Account.
(a)
Each
Servicer may invest the funds in the Collection Account and the Securities
Administrator may invest funds in the Distribution Account during the Securities
Administrator Float Period, and shall (except during the Securities
Administrator Float Period), invest such funds in the Distribution Account
at
the direction of the Depositor (for purposes of this Section 3.12, each of
the Collection Account and the Distribution Accounts are referred to as an
“Investment Account”), in one or more Permitted Investments bearing interest or
sold at a discount, and maturing, unless payable on demand, no later than the
Business Day on which such funds are required to be withdrawn from such account
pursuant to this Agreement (except for investments made at the Depositor’s
direction, which shall mature no later than the Business Day immediately
preceding the date of required withdrawal). All such Permitted Investments
shall
be held to maturity, unless payable on demand. Any investment of funds in an
Investment Account shall be made in the name of the Securities Administrator.
The Securities Administrator shall be entitled to sole possession (except with
respect to investment direction of funds held in the Collection Account and
any
income and gain realized thereon in any Account other than the Distribution
Account during the Securities Administrator Float Period) over each such
investment, and any certificate or other instrument evidencing any such
investment shall be delivered directly to the Securities Administrator or its
agent, together with any document of transfer necessary to transfer title to
such investment to the Securities Administrator. In the event amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Securities Administrator may:
(x)
|
consistent
with any notice required to be given thereunder, demand that payment
thereon be made on the last day such Permitted Investment may otherwise
mature hereunder in an amount equal to the lesser of (1) all amounts
then payable thereunder and (2) the amount required to be withdrawn
on such date; and
|
(y)
|
demand
payment of all amounts due thereunder that such Permitted Investment
would
not constitute a Permitted Investment in respect of funds thereafter
on
deposit in the Investment Account.
|
(b) All
income and gain realized from the investment of funds deposited in the
Collection Account held by or on behalf of the related Servicer, shall be for
the benefit of the Servicer and shall be subject to its withdrawal in the manner
set forth in Section 3.11. Any other benefit derived from the Collection
Account associated with the receipt, disbursement and accumulation of principal,
interest, taxes, hazard insurance, mortgage blanket insurance, and like sources,
shall accrue to the benefit of the Servicer, except that the Servicer shall
not
realize any economic benefit from any forced charging of services except as
permitted by applicable law. The Servicer shall deposit in the Collection
Account the amount of any loss of principal incurred in respect of any such
Permitted Investment made with funds in such accounts immediately upon
realization of such loss.
(c) All
income and gain realized from the investment of funds deposited in the
Distribution Account held by the Securities Administrator, shall be for the
benefit of the Depositor (except for any income or gain realized from the
investment of funds on deposit in the Distribution Account during the Securities
Administrator Float Period, which shall be for the benefit of the Securities
Administrator). The Depositor shall deposit in the Distribution Account (except
with respect to the Securities Administrator Float Period, in which case the
Securities Administrator shall so deposit) the amount of any loss of principal
incurred in respect of any such Permitted Investment made with funds in such
accounts immediately upon realization of such loss.
(d) Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment, the Securities
Administrator shall take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of appropriate
proceedings.
(e) The
Securities Administrator or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Securities Administrator’s
economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or sub-custodian with
respect to certain of the Permitted Investments, (ii) using Affiliates to
effect transactions in certain Permitted Investments and (iii) effecting
transactions in certain Permitted Investments.
(f) The
Securities Administrator shall not be liable for the amount of any loss incurred
with respect of any investment (except that during the Securities Administrator
Float Period, it will be responsible for reimbursing the Trust for such loss)
or
lack of investment of funds held in any Investment Account or the Distribution
Account if made in accordance with this Section 3.12.
Section
3.13 Maintenance
of Hazard Insurance, Errors and Omissions and Fidelity Coverage.
(a)
Each
Servicer shall obtain and maintain a blanket policy insuring against losses
arising from fire and hazards on all of the Mortgage Loans, which policy shall
provide coverage in an amount which is at least equal to the least of
(i) the outstanding principal balance of such Mortgage Loan, (ii) the
amount necessary to fully compensate for any damage or loss to the improvements
that are a part of such property on a replacement cost basis, (iii) the
maximum insurable value of the improvements which are a part of such Mortgaged
Property, and (iv) the amount determined by applicable federal or state
law, in each case in an amount not less than such amount as is necessary to
avoid the application of any coinsurance clause contained in the related hazard
insurance policy. Any amounts to be collected by any Servicer under any such
policy (other than amounts to be applied to the restoration or repair of the
property subject to the related Mortgage or amounts to be released to the
Mortgagor in accordance with the procedures that such Servicer would follow
in
servicing loans held for its own account, subject to the terms and conditions
of
the related Mortgage and Mortgage Note) shall be deposited in the Collection
Account, subject to withdrawal pursuant to Section 3.11.
The
applicable Servicer will not be obligated to determine whether or not each
Mortgagor has obtained adequate hazard insurance.
In
the
event that such policy contains a deductible clause, such Servicer shall, in
the
event that there shall not have been maintained on the related Mortgaged
Property or REO Property a standard hazard insurance policy and there shall
have
been one or more losses which would have been covered by such policy, each
Servicer shall deposit to the Collection Account from its own funds the amount
that is not otherwise payable under the blanket policy because of such
deductible clause. In connection with its activities as administrator and
servicer of the Mortgage Loans, each Servicer agrees to prepare and present,
on
behalf of itself, and the Trustee claims under any such blanket policy in a
timely fashion in accordance with the terms of such policy.
(b) Each
Servicer shall keep in force during the term of this Agreement a policy or
policies of insurance covering errors and omissions for failure in the
performance of such Servicer’s obligations under this Agreement, which policy or
policies shall be in such form and amount that would meet the requirements
of
Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of the Mortgage Loans, unless
such Servicer has obtained a waiver of such requirements from Xxxxxx Mae or
Xxxxxxx Mac. Each Servicer shall also maintain a fidelity bond in the form
and
amount that would meet the requirements of Xxxxxx Mae or Xxxxxxx Mac, unless
such Servicer has obtained a waiver of such requirements from Xxxxxx Mae or
Xxxxxxx Mac. Each Servicer shall provide the Master Servicer upon request with
copies of any such insurance policies and fidelity bond. Each Servicer shall
be
deemed to have complied with this provision if an Affiliate of the applicable
Servicer has such errors and omissions and fidelity bond coverage and, by the
terms of such insurance policy or fidelity bond, the coverage afforded
thereunder extends to such Servicer. Upon request from the Master Servicer,
each
Servicer shall cause to be delivered to the Master Servicer proof of coverage
of
the fidelity bond errors and omissions insurance policy and a statement from
the
surety and the insurer that that surety and insurer shall endeavor to notify
the
Trustee and the Master Servicer within 30 days prior to such fidelity bond’s
errors and omissions insurance policy’s termination or material modification.
Each Servicer shall also cause each Subservicer to maintain a policy of
insurance covering errors and omissions and a fidelity bond which would meet
such requirements.
Section
3.14 Enforcement
of Due-on-Sale Clauses; Assumption Agreements.
Each
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under the “due-on-sale”
clause, if any, applicable thereto; provided, however, that no Servicer shall
be
required to take such action if, in its sole business judgment, such Servicer
believes it is not in the best interests of the Trust Fund and shall not
exercise any such rights if prohibited by law from doing so. If a Servicer
reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause or if any of the other conditions set forth in the proviso
to the preceding sentence apply, such Servicer will enter into an assumption
and
modification agreement from or with the person to whom such property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note, and, to the extent permitted by applicable
state
law, the Mortgagor remains liable thereon. Each Servicer is also authorized
to
enter into a substitution of liability agreement with such person, pursuant
to
which the original Mortgagor is released from liability and such person is
substituted as the Mortgagor and becomes liable under the Mortgage Note;
provided, that no such substitution shall be effective unless such person
satisfies the underwriting criteria of such Servicer and such substitution
is in
the best interest of the Certificateholders as determined by the applicable
Servicer. In connection with any assumption, modification or substitution,
such
Servicer shall apply such underwriting standards and follow such practices
and
procedures as shall be normal and usual in its general mortgage servicing
activities and as it applies to other mortgage loans owned solely by it. No
Servicer shall take or enter into any assumption and modification agreement,
however, unless (to the extent practicable in the circumstances) it shall have
received confirmation, in writing, of the continued effectiveness of any
applicable hazard insurance policy, or a new policy meeting the requirements
of
this Section is obtained. Any fee collected by a Servicer in respect of an
assumption, modification or substitution of liability agreement will be retained
by such Servicer as additional servicing compensation. In connection with any
such assumption, no material term of the Mortgage Note (including but not
limited to the related Mortgage Interest Rate and the amount of the Scheduled
Payment) may be amended or modified, except as otherwise required pursuant
to
the terms thereof or as otherwise permitted by this Agreement. Each Servicer
shall notify the Trustee that any such substitution, modification or assumption
agreement has been completed by forwarding to the Trustee the executed original
of such substitution, modification or assumption agreement, which document
shall
be added to the related Mortgage File and shall, for all purposes, be considered
a part of such Mortgage File to the same extent as all other documents and
instruments constituting a part thereof.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, a Servicer
shall not be deemed to be in default, breach or any other violation of its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or by the terms of the Mortgage Note or any assumption which
such Servicer may be restricted by law from preventing, for any reason
whatsoever. For purposes of this Section 3.14, the term “assumption” is
deemed to also include a sale (of the Mortgaged Property) subject to the
Mortgage that is not accompanied by an assumption or substitution of liability
agreement.
Section
3.15 Realization
upon Defaulted Mortgage Loans. (a)
Each
Servicer shall use its best efforts, consistent with Accepted Servicing
Practices, to foreclose upon or otherwise comparably convert (which may include
an acquisition of REO Property) the ownership of properties securing such
of the Mortgage Loans as come into and continue in default and as to which
no
satisfactory arrangements can be made for collection of delinquent payments
pursuant to Section 3.07, and which are not released from this Agreement
pursuant to any other provision hereof. The foregoing is subject to the
provisions that, in any case in which a Mortgaged Property shall have suffered
damage from an uninsured cause, a Servicer shall not be required to expend
its
own funds toward the restoration of such property unless it shall determine
in
its sole discretion (i) that such restoration will increase the net
proceeds of liquidation of the related Mortgage Loan to the Securities
Administrator, after reimbursement to itself for such expenses, and
(ii) that such expenses will be recoverable by such Servicer through
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds from the
related Mortgaged Property, as contemplated in Section 3.11. Each Servicer
shall be responsible for all other costs and expenses incurred by it in any
such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the related property, as contemplated in
Section 3.11.
In
the
event that the related First Lien Mortgage Loan is not being serviced by such
Servicer, such Servicer shall have no liability for any losses resulting from
a
foreclosure on a Mortgage Loan in connection with the foreclosure on the related
First Lien Mortgage Loan where such Servicer did not receive notice or otherwise
had no actual knowledge regarding such foreclosure on the related First Lien
Mortgage Loan; provided, however, if such Servicer is either notified or has
actual knowledge that any holder of a First Lien Mortgage Loan intends to
accelerate the obligations secured by the First Lien Mortgage Loan, or that
any
such holder intends to declare a default under the mortgage or promissory note
secured thereby, or has filed or intends to file an election to have the related
Mortgaged Property sold or foreclosed, such Servicer shall take, on behalf
of
the Trust, whatever actions are necessary to protect the interests of the Trust
in accordance with Accepted Servicing Practices and the REMIC Provisions. No
Servicer shall be required to make a Servicing Advance pursuant to Section
4.01
with respect thereto except to the extent that it determines in its reasonable
good faith judgment that such advance would be recoverable from Liquidation
Proceeds on the related Mortgage Loan and in no event in an amount that is
greater than the then outstanding principal balance of the related Mortgage
Loan. The applicable Servicer shall thereafter take such action as is reasonably
necessary to recover any amount so advanced and to otherwise reimburse itself
as
a Servicing Advance from the Collection Account pursuant to Section
3.11.
The
proceeds of any Liquidation Event or REO Disposition, as well as any recovery
resulting from a partial collection of Insurance Proceeds, Condemnation Proceeds
or Liquidation Proceeds or any income from an REO Property, will be applied
in
the following order of priority: first, to reimburse such Servicer or any
Subservicer for any related unreimbursed Servicing Advances, pursuant to
Section 3.11 or 3.17; second, to reimburse such Servicer for any related
xxxxxxxxxxxx X&X Advances, pursuant to Section 3.11; third, to accrued
and unpaid interest on the Mortgage Loan or REO Imputed Interest, at the
Mortgage Interest Rate, to the date of the liquidation or REO Disposition,
or to
the Due Date prior to the Remittance Date on which such amounts are to be
distributed if not in connection with a Liquidation Event or REO Disposition;
and fourth, as a recovery of principal of the Mortgage Loan. If the amount
of
the recovery so allocated to interest is less than a full recovery thereof,
that
amount will be allocated as follows: first, to unpaid Servicing Fees; and
second, as interest at the Mortgage Interest Rate (net of the Servicing Fee
Rate). The portion of the recovery so allocated to unpaid Servicing Fees shall
be reimbursed to such Servicer or any Subservicer pursuant to Section 3.11
or 3.17.
The
portions of any recovery so allocated to interest at the Mortgage Interest
Rate
(net of the Servicing Fee Rate) and to principal of the Mortgage Loan shall
be
applied as follows: first, to reimburse such Servicer or any Subservicer for
any
related unreimbursed Servicing Advances in accordance with Section 3.11 or
3.17, and second, to the Securities Administrator in accordance with the
provisions of Section 4.02, subject to the last paragraph of
Section 3.17 with respect to certain excess recoveries from an REO
Disposition.
(b) Notwithstanding
anything to the contrary contained in this Agreement, with respect to any
Mortgage Loan that is 180 days delinquent, the applicable Servicer shall charge
off such delinquent Mortgage Loan. Once a Mortgage Loan has been charged off,
such Servicer will discontinue making P&I Advances, such Servicer will not
be entitled to any additional servicing compensation and the Charged Off Loan
will give rise to a Realized Loss. Any such Charged Off Loan will be released
from the Trust Fund, will no longer be an asset of any REMIC, and will be
transferred to the Class X-1 Certificateholders, without recourse, and
thereafter (i) the Class X-1 Certificateholder will be entitled to any amounts
subsequently received in respect of any such Released Loans, (ii) the Class
X-1
Certificateholder may designate any servicer to service any such Released Loan
and (iii) the Class X-1 Certificateholder may sell any such Released Loan to
a
third party. Once a Mortgage Loan is charged off pursuant to this Section
3.15(b), the applicable Servicer shall not be obligated to service such Mortgage
Loan. The applicable Servicer may cease any collection efforts with respect
to
such Mortgage Loan, and statements of account may no longer be sent to such
Mortgagor. The applicable Servicer shall write off each charged off Mortgage
Loan as bad debt.
(c) Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event a Servicer has
received actual notice of, or has actual knowledge of the presence of, hazardous
or toxic substances or wastes on the related Mortgaged Property, or if the
Master Servicer or the Trustee otherwise requests, such Servicer shall cause
an
environmental inspection or review of such Mortgaged Property to be conducted
by
a qualified inspector. Upon completion of the inspection, such Servicer shall
promptly provide the Trustee, the Master Servicer and the Depositor, with a
written report of the environmental inspection.
After
reviewing the environmental inspection report, the applicable Servicer shall
determine consistent with Accepted Servicing Practices, how to proceed with
respect to the Mortgaged Property. In the event (a) the environmental
inspection report indicates that the Mortgaged Property is contaminated by
hazardous or toxic substances or wastes and (b) the applicable Servicer
determines, consistent with Accepted Servicing Practices, to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, such Servicer shall
be reimbursed for all reasonable costs associated with such foreclosure or
acceptance of a deed in lieu of foreclosure and any related environmental
clean-up costs, as applicable, from the related Liquidation Proceeds, or if
the
Liquidation Proceeds are insufficient to fully reimburse such Servicer, such
Servicer shall be entitled to be reimbursed from amounts in the Collection
Account pursuant to Section 3.11. In the event the applicable Servicer
determines not to proceed with foreclosure or acceptance of a deed in lieu
of
foreclosure, such Servicer shall be reimbursed from general collections for
all
Servicing Advances made with respect to the related Mortgaged Property from
the
Collection Account pursuant to Section 3.11. The Trustee shall not be
responsible for any determination made by the applicable Servicer pursuant
to
this paragraph or otherwise.
Section
3.16 Release
of Mortgage Files. (a)
Upon the
payment in full of any Mortgage Loan, or the receipt by a Servicer of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, such Servicer will, within five (5) Business Days of the payment
in full, notify the Trustee by a certification (which certification shall
include a statement to the effect that all amounts received or to be received
in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.10 have been or will be so
deposited) of a Servicing Officer and shall request delivery to it of the
Custodial File by completing a Request for Release to the Trustee. Upon receipt
of such certification and Request for Release, the Trustee shall promptly
release the related Custodial File to such Servicer within three (3) Business
Days. No expenses incurred in connection with any instrument of satisfaction
or
deed of reconveyance shall be chargeable to or reimbursed by the Collection
Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, including, for this purpose, collection under any insurance policy
relating to the Mortgage Loans, the Trustee shall, upon request of such Servicer
and delivery to the Trustee, of a Request for Release, release the related
Custodial File to such Servicer, and the Trustee shall, at the direction of
such
Servicer, execute such documents provided to it as shall be necessary to the
prosecution of any such proceedings and such Servicer shall retain the Mortgage
File in trust for the benefit of the Trustee. Such Request for Release shall
obligate the applicable Servicer to return each and every document previously
requested from the Custodial File to the Trustee when the need therefor by
such
Servicer no longer exists, unless the Mortgage Loan has been liquidated and
the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Collection Account or the Mortgage File or such document has been delivered
to
an attorney, or to a public trustee or other public official as required by
law,
for purposes of initiating or pursuing legal action or other proceedings for
the
foreclosure of the Mortgaged Property either judicially or non-judicially,
and
such Servicer has delivered to the Trustee a certificate of a Servicing Officer
certifying as to the name and address of the Person to which such Mortgage
File
or such document was delivered and the purpose or purposes of such delivery.
Upon receipt of a certificate of a Servicing Officer stating that such Mortgage
Loan was liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Collection Account have been so deposited, or that such Mortgage Loan has become
an REO Property, a copy of the Request for Release shall be released by the
Trustee to the applicable Servicer or its designee. Upon receipt of a Request
for Release under this Section 3.16, the Trustee shall deliver the related
Custodial File to the applicable Servicer by overnight courier (at the
applicable Servicer’s expense, which expense shall be reimbursable as a
Servicing Advance).
Upon
written certification of a Servicing Officer, the Trustee shall execute and
deliver to the applicable Servicer copies of any court pleadings, requests
for
trustee’s sale or other documents reasonably necessary to the foreclosure or
trustee’s sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Mortgagor on the Mortgage Note or Mortgage or
to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or
in
equity, or shall execute and deliver to such Servicer a power of attorney
sufficient to authorize such Servicer to execute such documents on its behalf.
Each such certification shall include a request that such pleadings or documents
be executed by the Trustee and a statement as to the reason such documents
or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee’s sale.
Section
3.17 Title,
Conservation and Disposition of REO Property. (a)
This
Section shall apply only to REO Properties acquired for the account of the
Trustee and shall not apply to any REO Property relating to a Mortgage Loan
which was purchased or repurchased from the Trustee pursuant to any provision
hereof. In the event that title to any such REO Property is acquired, the
applicable Servicer shall cause the deed or certificate of sale to be issued
in
the name of the Trustee, on behalf of the Certificateholders, or the Trustee’s
nominee.
(b) Each
Servicer shall manage, conserve, protect and operate each REO Property for
the Trustee solely for the purpose of its prompt disposition and sale. Each
Servicer, either itself or through an agent selected by such Servicer, shall
manage, conserve, protect and operate the REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for
its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. Each Servicer shall attempt to sell the same
(and may temporarily rent the same for a period not greater than one year,
except as otherwise provided below) on such terms and conditions as such
Servicer deems to be in the best interest of the Trustee.
(c) As
described in paragraph (h) below, each Servicer shall use its commercially
reasonable 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, unless such Servicer determines, and gives an
appropriate notice to the Trustee to such effect, that a longer period is
necessary for the orderly liquidation of such REO Property. The Trustee has
no
obligation with respect to REO Dispositions.
(d) Each
Servicer shall segregate and hold all funds collected and received in connection
with the operation of any REO Property separate and apart from its own funds
and
general assets and shall deposit such funds in the Collection
Account.
(e) Each
Servicer shall deposit net of reimbursement to such Servicer for any related
outstanding Servicing Advances and unpaid Servicing Fees provided in
Section 3.11, or cause to be deposited, on a daily basis in the Collection
Account all revenues received with respect to the related REO Property and
shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of the REO Property.
(f) Each
Servicer, upon an REO Disposition, shall be entitled to reimbursement for any
related unreimbursed Servicing Advances as well as any unpaid Servicing Fees
from proceeds received in connection with the REO Disposition, as further
provided in Section 3.11.
(g) Any
net
proceeds from an REO Disposition which are in excess of the unpaid principal
balance of the related Mortgage Loan plus all unpaid REO Imputed Interest
thereon through the date of the REO Disposition shall be retained by the
applicable Servicer as additional servicing compensation.
(h) Each
Servicer shall use its commercially reasonable efforts to sell, or cause the
Subservicer to sell, in accordance with Accepted Servicing Practices, any REO
Property as soon as possible, but in no event later than the conclusion of
the
third calendar year beginning after the year of its acquisition by the REMIC
unless (i) such Servicer applies for an extension of such period from the
Internal Revenue Service pursuant to the REMIC Provisions and Code
Section 856(e)(3), in which event such REO Property shall be sold
within the applicable extension period, or (ii) such Servicer, at its
expense, obtains for and delivers to the Trustee and the Master Servicer an
Opinion of Counsel, addressed to the Depositor, the Trustee, the Master Servicer
and such Servicer, to the effect that the holding by the Lower-Tier REMIC of
such REO Property subsequent to such period will not result in the imposition
of
taxes on “prohibited transactions” as defined in Section 860F of the Code
or cause either Trust REMIC to fail to qualify as a REMIC under the REMIC
Provisions or comparable provisions of relevant state laws at any time. Each
Servicer shall manage, conserve, protect and operate each REO Property serviced
by such Servicer for the Trustee solely for the purpose of its prompt
disposition and sale in a manner which does not cause such REO Property to
fail
to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) or result in the receipt by the Lower-Tier REMIC of any
“income from non-permitted assets” within the meaning of
Section 860F(a)(2)(B) of the Code or any “net income from foreclosure
property” which is subject to taxation under Section 860G(a)(1) of the
Code. Pursuant to its efforts to sell such REO Property, the applicable Servicer
shall either itself or through an agent selected by such Servicer protect and
conserve such REO Property in the same manner and to such extent as is
customary in the locality where such REO Property is located and may,
incident to its conservation and protection of the interests of the Trustee
on
behalf of the Certificateholders, rent the same, or any part thereof, as such
Servicer deems to be in the best interest of the Trustee on behalf of the
Certificateholders for the period prior to the sale of such REO Property;
provided, however, that any rent received or accrued with respect to such REO
Property qualifies as “rents from real property” as defined in
Section 856(d) of the Code.
Section
3.18 [RESERVED].
Section
3.19 Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
The
applicable Servicer shall provide, or cause the applicable Subservicer to
provide, to the Depositor, the Trustee, the Master Servicer, the OTS or the
FDIC
and the examiners and supervisory agents thereof, access to the documentation
regarding the Mortgage Loans in its possession required by applicable
regulations of the OTS. Such access shall be afforded without charge, but only
upon reasonable and prior written request and during normal business hours
at
the offices of the applicable Servicer or any Subservicer. Nothing in this
Section shall derogate from the obligation of any such party to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of any such party to provide access as provided in this
Section as a result of such obligation shall not constitute a breach of
this Section.
Nothing
in this Section 3.19 shall require such Servicer to collect, create, collate
or
otherwise generate any information that it does not generate in its usual course
of business. Each Servicer shall not be required to make copies of or to ship
documents to any Person who is not a party to this Agreement, and then only
if
provisions have been made for the reimbursement of the costs thereof. Each
Servicer, however, may provide copies of information provided to the Trustee,
the Master Servicer or Depositor to any party designated by the
Depositor.
Section
3.20 Documents,
Records and Funds in Possession of the Servicer to Be Held for the Securities
Administrator for the Benefit of the Trustee.
Each
Servicer shall account fully to the Securities Administrator on behalf of the
Trustee for any funds received by such Servicer or which otherwise are collected
by such Servicer as Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds in respect of any Mortgage Loan. All Mortgage Files and funds collected
or held by, or under the control of, a Servicer in respect of any Mortgage
Loans, whether from the collection of principal and interest payments or from
Liquidation Proceeds, including, but not limited to, any funds on deposit in
the
Collection Account, shall be held by such Servicer for and on behalf of the
Trustee and shall be and remain the sole and exclusive property of the Trustee,
subject to the applicable provisions of this Agreement. Each Servicer also
agrees that it shall not create, incur or subject any Mortgage File or any
funds
that are deposited in the Collection Account or the Distribution Account, or
any
funds that otherwise are or may become due or payable to the Securities
Administrator on behalf of the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy,
writ
of attachment or other encumbrance, or assert by legal action or otherwise
any
claim or right of setoff against any Mortgage File or any funds collected on,
or
in connection with, a Mortgage Loan, except, however, that such Servicer shall
be entitled to set off against and deduct from any such funds any amounts that
are properly due and payable to such Servicer under this Agreement.
Section
3.21 Servicing
Compensation. (a)
As
compensation for its activities hereunder, each Servicer shall, with respect
to
each Mortgage Loan, be entitled to retain from deposits to the Collection
Account and from Liquidation Proceeds, Insurance Proceeds and Condemnation
Proceeds related to such Mortgage Loan, the Servicing Fee with respect to each
Mortgage Loan (less any portion of such amounts retained by any Subservicer).
In
addition, each Servicer shall be entitled to recover unpaid Servicing Fees
out
of related Late Collections and as otherwise permitted in Section 3.11. The
right to receive the Servicing Fee may not be transferred in whole or in part
except as provided in Section 12.07 or in connection with the transfer of all
of
a Servicer’s responsibilities and obligations under this Agreement; provided,
however, that each Servicer may pay from the Servicing Fee any amounts due
to a
Subservicer pursuant to a Subservicing Agreement entered into under
Section 3.02.
(b) Additional
servicing compensation in the form of proceeds described in Section 3.17(g),
assumption or modification fees, late payment charges, NSF fees, reconveyance
fees and other similar fees and charges (other than Prepayment Premiums) shall
be retained by a Servicer only to the extent such fees or charges are received
by such Servicer. Each Servicer shall also be entitled pursuant to
Section 3.11(a)(iv) to withdraw from the Collection Account, as additional
servicing compensation, interest or other income earned on deposits
therein.
(c) Except
as
otherwise provided in this Agreement, each Servicer shall be required to pay
all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of premiums for any blanket policy insuring against hazard
losses pursuant to Section 3.13, servicing compensation of the Subservicer
to the extent not retained by it and the fees and expenses of independent
accountants and any agents appointed by such Servicer), and shall not be
entitled to reimbursement therefor except as specifically provided in
Section 3.11.
Section
3.22 Annual
Statement as to Compliance
Each
Servicer, the Securities Administrator and the Master Servicer shall deliver
or
cause to be delivered to the Depositor, the Securities Administrator and the
Master Servicer, on or before March 15 of each calendar year beginning in 2007,
an Officers’ Certificate (an “Annual Statement of Compliance”) stating that (i)
a review of the activities of the Servicer during the preceding calendar year
and of performance under this Agreement has been made under such officers’
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
in all material respects throughout such year, or, if there has been a failure
to fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof. Each Servicer
shall deliver a similar Annual Statement of Compliance by any subservicer to
which such Servicer has delegated any servicing responsibilities with respect
to
the Mortgage Loans (unless a Form 15 Suspension Notice shall have been filed
with respect to the Trust Fund and so long as the Trust Fund is subject to
the
Exchange Act reporting requirements), to the Depositor, the Securities
Administrator and the Trustee as described above as and when required with
respect to such Servicer.
Section
3.23 Assessments
of Compliance and Attestation Reports.
Pursuant to Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB, each Servicer, the Master Servicer and the Securities
Administrator shall each deliver to the Depositor and the Securities
Administrator on or before March 15 of each calendar year beginning in 2007,
a
report regarding such party’s assessment of compliance (an “Assessment of
Compliance”) with the Servicing Criteria during the preceding calendar year. As
set forth in Regulation AB, the Assessment of Compliance must contain the
following:
(a) A
statement by the party making the assessment of its responsibility for assessing
compliance with the Servicing Criteria applicable to it;
(b) A
statement by the party making the assessment that it used the Servicing Criteria
attached as Exhibit R hereto, and which will also be attached to the Assessment
of Compliance, to assess compliance with the Servicing Criteria applicable
to
it;
(c) An
assessment by such officer of the party making the assessment’s compliance with
the applicable Servicing Criteria for the period consisting of the preceding
calendar year, including disclosure of any material instance of noncompliance
with respect thereto during such period, which assessment shall be based on
the
activities it performs with respect to asset-backed securities transactions
taken as a whole involving the party, that are backed by the same asset type
as
the Mortgage Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the party making the assessment’s Assessment of Compliance for the
period consisting of the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the party making the assessment, which statement shall be based on the
activities it performs with respect to asset-backed securities transactions
taken as a whole involving the party, that are backed by the same asset type
as
the Mortgage Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on
Exhibit R hereto which are indicated as applicable to the party.
On
or
before March 15 of each calendar year beginning in 2007, the party making the
assessment shall furnish to the Depositor and the Securities Administrator
a
report (an “Attestation Report”) by a registered public accounting firm that
attests to, and reports on, the Assessment of Compliance made by the party
making the assessment, as required by Rules 13a-18 and 15d-18 of the Exchange
Act and Item 1122(b) of Regulation AB, which Attestation Report must be made
in
accordance with standards for attestation reports issued or adopted by the
Public Company Accounting Oversight Board.
Unless
a
Form 15 Suspension Notice shall have been filed with respect to the Trust Fund
and for so long as the Trust Fund is subject to the Exchange Act reporting
requirements, each Servicer shall cause any subservicer to which such Servicer
delegated any of its responsibilities with respect to the Mortgage Loans
determined by such Servicer to be “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB, to deliver to the Securities
Administrator and the Depositor an Assessment of Compliance and Attestation
Report as and when provided above.
Such
Assessment of Compliance, as to any subservicer to which a Servicer delegated
any of its responsibilities with respect to the Mortgage Loans, shall at a
minimum address each of the Servicing Criteria specified on Exhibit R hereto
which are indicated as applicable to any “primary servicer” to the extent they
are applicable to such subservicer. Notwithstanding the foregoing, as to any
subcontractor, an Assessment of Compliance is not required to be delivered
unless it is required as part of a Form 10-K with respect to the Trust
Fund.
The
Trustee (in its capacity as custodian) shall also provide to the Depositor
an
Assessment of Compliance and Attestation Report with respect to itself, as
and
when provided above by March 15 each year, unless a Form 15 Suspension Notice
shall have been filed with respect to the Trust Fund, which shall at a minimum
address each of the Servicing Criteria specified on Exhibit R hereto which
are
indicated as applicable to the “trustee”.
Section
3.24 Master
Servicer to Act as Servicer. (a)
In the
event that a Servicer shall for any reason no longer be a Servicer hereunder
(including by reason of an Event of Default), the Master Servicer or its
successor shall, thereupon assume all of the rights and obligations of such
Servicer hereunder arising thereafter (except that the Master Servicer shall
not
be (i) liable for losses of the predecessor Servicer pursuant to
Section 3.10 or any acts or omissions of the predecessor Servicer
hereunder, (ii) obligated to make Advances if it is prohibited from doing
so by applicable law, (iii) obligated to effectuate repurchases or
substitutions of Mortgage Loans hereunder, including but not limited to
repurchases or substitutions pursuant to Section 2.03,
(iv) responsible for expenses of such Servicer pursuant to
Section 2.03 or (v) deemed to have made any representations and
warranties of such Servicer hereunder). Any such assumption shall be subject
to
Section 7.02.
(b) Every
Subservicing Agreement entered into by a Servicer shall contain a provision
giving the successor Servicer the option to terminate such agreement in the
event a successor Servicer is appointed.
(c) If
the
applicable Servicer shall for any reason no longer be a Servicer (including
by
reason of any Event of Default), the Master Servicer (or any other successor
Servicer) may, at its option, succeed to any rights and obligations of such
Servicer under any Subservicing Agreement in accordance with the terms thereof;
provided, that the Master Servicer (or any other successor Servicer) shall
not
incur any liability or have any obligations in its capacity as successor
Servicer under a Subservicing Agreement arising prior to the date of such
succession unless it expressly elects to succeed to the rights and obligations
of the applicable Servicer thereunder; and such Servicer shall not thereby
be
relieved of any liability or obligations under the Subservicing Agreement
arising prior to the date of such succession.
(d) The
applicable Servicer shall, upon request of the Master Servicer, but at the
expense of such Servicer, deliver to the assuming party all documents and
records relating to each Subservicing Agreement (if any) to which it is a party
and the Mortgage Loans then being serviced thereunder and an accounting of
amounts collected and held by it and otherwise use its best efforts to effect
the orderly and efficient transfer of the Subservicing Agreement to the assuming
party.
Section
3.25 Compensating
Interest.
The
applicable Servicer shall remit to the Master Servicer on each Remittance Date
an amount from its own funds equal to Compensating Interest payable by such
Servicer for such Remittance Date.
Section
3.26 Credit
Reporting; Xxxxx-Xxxxx-Xxxxxx Act. (a)
With
respect to each Mortgage Loan, the applicable Servicer shall fully furnish,
in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on the
related Mortgagor credit files to the three national credit repositories, on
a
monthly basis.
(b) Each
Servicer shall comply with all applicable provisions of the Privacy Laws
relating to the Mortgage Loans, the related borrowers and any “nonpublic
personal information” (as defined in the Privacy Laws) received by such Servicer
incidental to it being a party to this Agreement, including, maintaining
adequate information security procedures to protect such nonpublic personal
information. Without limitation, the applicable Servicer shall provide all
privacy notices required of such Servicer under the Privacy Laws.
Section
3.27 Excess
Reserve Fund Account; Distribution Account. (a) The
Securities Administrator shall establish and maintain the Excess Reserve Fund
Account, on behalf of the Class X Certificateholders, to receive any Basis
Risk Payment (including any Yield Maintenance Payments) and to pay to the LIBOR
Certificateholders and the Class M-5, Class B-1 and Class B-2 Certificates
any
Basis Risk Carry Forward Amounts.
On
each
Distribution Date on which there exists a Basis Risk Carry Forward Amount on
any
Class of LIBOR Certificates or Class M-5, Class B-1 or Class B-2
Certificates after application of any payments from the Yield Maintenance
Agreement, the Securities Administrator shall (1) withdraw from the
Distribution Account and deposit in the Excess Reserve Fund Account, as set
forth in Section 4.02(a)(iii)(J), the lesser of the Class X
Distributable Amount (to the extent remaining after the distributions specified
in Sections 4.02(a)(iii)(A)-(I)) and the aggregate Basis Risk Carry Forward
Amount and (2) withdraw from the Excess Reserve Fund Account amounts
necessary to pay to such Class or Classes of LIBOR Certificates and the Class
M-5, Class B-1 and Class B-2 Certificates the applicable Basis Risk Carry
Forward Amounts. 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 Sections 4.02(a)(iii)(K). In the event
that the Class Certificate Balance of any Class of Certificates is reduced
because of Applied Realized Loss Amounts, the applicable Certificateholders
will
not be entitled to receive Basis Risk Carry Forward Amounts on the written
down
amounts on such Distribution Date or any future Distribution Dates (except
to
the extent such Class Certificate Balance is increased as a result of any
Subsequent Recoveries), even if funds are otherwise available for
distribution.
The
Securities Administrator shall account for the Excess Reserve Fund Account
as an
outside reserve fund within the meaning of Treasury Regulations
Section 1.860G-2(h) and not as an asset of either 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 by REMIC II to the Excess Reserve Fund Account
shall be treated as first distributed by the Securities Administrator to the
Class X Certificateholders in respect of the Class X Interest, and
then contributed by the Class X Certificateholders to the Excess Reserve
Fund Account. For federal income tax purposes, the value of the right of the
LIBOR Certificateholders and the Class M-5, Class B-1 and Class B-2
Certificateholders to receive payments from the Excess Reserve Fund Account
shall be $1,710,000.
Any
Basis
Risk Carry Forward Amounts paid by the Securities Administrator to the LIBOR
Certificateholders and the Class M-5, Class B-1 and Class B-2 Certificates
shall
be accounted for by the Securities Administrator as amounts paid first to the
Holders of the Class X Certificates and then to the respective Class or
Classes of LIBOR Certificates and the Class M-5, Class B-1 and Class B-2
Certificates. In addition, the Securities Administrator shall account for the
rights of Holders of each Class of LIBOR Certificates and the Class M-5, Class
B-1 and Class B-2 Certificates to receive payments of Basis Risk Carry Forward
Amounts 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.
On
each
Distribution Date, payments from the Yield Maintenance Agreement will be
distributed will be applied as follows:
(i) to
the
LIBOR Certificates, to pay Accrued Certificate Interest and, if applicable,
any
Unpaid Interest Amounts as described in Section 4.02(a)(i)(A), to the extent
unpaid from other Available Funds;
(ii) to
the
Offered Certificates and the Class B-1 Certificates and Class B-2 Certificates,
as part of the Extra Principal Distribution Amount, to pay principal as
described in Section 4.02(a)(ii)(A) and (B), but only to the extent necessary
to
maintain or restore the Overcollateralized Amount by covering current period
or
prior period Realized Losses (prior to distribution of any amounts
due);
(iii) to
the
LIBOR Certificates, to pay any Basis Risk Carry Forward Amounts, in the priority
described in Section 4.02(a)(iii)(K); and
(iv) to
the
Class X Certificates, any remaining amounts.
Notwithstanding
any provision contained in this Agreement, the Securities Administrator shall
not be required to make any payments from the Excess Reserve Fund Account except
as expressly set forth in this Section 3.27(a).
(b) The
Securities Administrator shall establish and maintain the Distribution Account
on behalf of the Certificateholders. The Securities Administrator shall,
promptly upon receipt on the Business Day received, deposit in the Distribution
Account and retain therein the following:
(i) the
aggregate amount remitted by such Servicer to the Securities Administrator
pursuant to Section 3.11;
(ii) any
amount deposited by such Servicer pursuant to Section 3.12(b) in connection
with any losses on Permitted Investments; and
(iii) any
other
amounts deposited hereunder which are required to be deposited in the
Distribution Account.
In
the
event that the applicable Servicer shall remit any amount not required to be
remitted, the Servicer may at any time direct the Securities Administrator
in
writing to withdraw such amount from the Distribution Account, any provision
herein to the contrary notwithstanding. Such direction may be accomplished
by
delivering notice to the Securities Administrator which describes the amounts
deposited in error in the Distribution Account. All funds deposited in the
Distribution Account shall be held by the Securities Administrator in trust
for
the Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 4.02.
(c) In
order
to comply with laws, rules and regulations applicable to banking institutions,
including those relating to the funding of terrorist activities and money
laundering, the Trustee is required to obtain, verify, and record certain
information relating to individuals and entities which maintain a business
relationship with the Trustee. Accordingly, each of the parties agrees to
provide to the Trustee upon its request from time to time such party’s complete
name, address, tax identification number and such other identifying information,
together with copies of such party’s constituting documentation, securities
disclosure documentation and such other identifying documentation as may be
available for such party.
Section
3.28 Optional
Purchase of Delinquent Mortgage Loans.
The
Depositor, in its sole discretion, shall have the option, but shall not be
obligated, to purchase any 90+ Day Delinquent Mortgage Loan from the Trust
Fund.
The purchase price for any such Mortgage Loan shall be 100% of the unpaid
principal balance of such Mortgage Loan plus accrued and unpaid interest on
the
related Mortgage Loan at the applicable Mortgage Interest Rate, plus the amount
of any unreimbursed Servicing Advances made by such Servicer. Upon receipt
of
such purchase price, the applicable Servicer shall provide to the Trustee a
Request for Release and the Trustee shall promptly release to the Depositor
or
such Servicer, as applicable, the Mortgage File relating to the Mortgage Loan
being repurchased.
ARTICLE
IV
DISTRIBUTIONS
AND
ADVANCES
BY THE SERVICER
Section
4.01 Advances. (a)
The
amount of P&I Advances to be made by each Servicer for any Remittance Date
shall equal, subject to Section 4.01(c), the sum of (i) the aggregate
amount of Scheduled Payments (with each interest portion thereof net of the
related Servicing Fee), due during the Due Period immediately preceding such
Remittance Date in respect of the Mortgage Loans, which Scheduled Payments
were
not received as of the close of business on the related Determination Date,
plus
(ii) with respect to each REO Property, which REO Property was acquired
during or prior to the related Prepayment Period and as to which such REO
Property an REO Disposition did not occur during the related Prepayment Period,
an amount equal to the excess, if any, of the Scheduled Payments (with REO
Imputed Interest) that would have been due on the related Due Date in respect
of
the related Mortgage Loan, over the net income from such REO Property
transferred to the Collection Account for distribution on such Remittance Date.
Each Servicer shall not be required to make P&I Advances with respect to
Relief Act Interest Shortfalls or resulting from bankruptcy proceedings of
the
Mortgagor.
(b) On
each
Remittance Date, each Servicer shall remit in immediately available funds to
the
Securities Administrator for deposit in the Distribution Account an amount
equal
to the aggregate amount of P&I Advances, if any, to be made in respect of
the Mortgage Loans and REO Properties for the related Remittance Date either
(i) from its own funds or (ii) from the Collection Account, to the
extent of funds held therein for future distribution (in which case, such
Servicer will cause to be made an appropriate entry in the records of the
Collection Account that Amounts Held for Future Distribution have been, as
permitted by this Section 4.01, used by such Servicer in discharge of any
such P&I Advance) or (iii) in the form of any combination of (i) and
(ii) aggregating the total amount of P&I Advances to be made by such
Servicer with respect to the Mortgage Loans and REO Properties. Any Amounts
Held
for Future Distribution and so used shall be appropriately reflected in such
Servicer’s records and replaced by such Servicer by deposit in the Collection
Account on or before any future Remittance Date to the extent
required.
(c) The
obligation of each Servicer to make such P&I Advances is mandatory,
notwithstanding any other provision of this Agreement but subject to (d) below,
and, with respect to any Mortgage Loan or REO Property, shall continue through
the time at which the related Mortgage Loan becomes 180 days
delinquent.
(d) Notwithstanding
anything herein to the contrary, no P&I Advance or Servicing Advance shall
be required to be made hereunder by the Servicer if such P&I Advance or
Servicing Advance would, if made, constitute a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance. The determination by any Servicer that it
has
made a Nonrecoverable P&I Advance or a Nonrecoverable Servicing Advance or
that any proposed P&I Advance or Servicing Advance, if made, would
constitute a Nonrecoverable P&I Advance or a Nonrecoverable Servicing
Advance, respectively, shall be evidenced by an Officer’s Certificate of such
Servicer delivered to the Master Servicer and the Securities Administrator.
In
addition, the applicable Servicer shall not be required to advance any Relief
Act Interest Shortfalls.
(e) Except
as
otherwise provided herein, each Servicer shall be entitled to reimbursement
pursuant to Section 3.11 for Advances from recoveries from the related
Mortgagor or from all Liquidation Proceeds and other payments or recoveries
(including Insurance Proceeds and Condemnation Proceeds) with respect to the
related Mortgage Loan.
(f) On
each
Remittance Date, the Master Servicer shall deposit in the Distribution Account
all funds remitted to it by the Servicers pursuant to Sections 3.11(a)(i) and
3.25 and this Section 4.01. The Securities Administrator may retain or withdraw
from the Distribution Account, (i) the Master Servicing Fee, (ii) amounts
necessary to reimburse the Master Servicer or the Servicer for any previously
unreimbursed Advances and any Advances the Master Servicer deems to be
nonrecoverable from the related Mortgage Loan proceeds, (iii) an amount to
indemnify the Master Servicer or the Servicer for amounts due in accordance
with
this Agreement, and (iv) any other amounts that each of the Master Servicer
and
the Securities Administrator is entitled to receive hereunder for reimbursement,
indemnification or otherwise. In addition, on each Distribution Date the
Securities Administrator shall pay the Trustee the related Trustee Fee out
of
its own funds.
Section
4.02 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 Offered Certificates and the Class B-1 Certificates
and
Class B-2 Certificates in the following order of priority:
(A) from
the
Interest Remittance Amount, to the Class A Certificates, on a pro rata basis
based on their respective entitlements, the Accrued Certificate Interest
Distribution Amount for such Classes and Unpaid Interest Amount for such Classes
and such Distribution Date;
(B) from
any
remaining Interest Remittance Amounts, to the Class M-1 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(C) from
any
remaining Interest Remittance Amounts, to the Class M-2 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(D) from
any
remaining Interest Remittance Amounts, to the Class M-3 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(E) from
any
remaining Interest Remittance Amounts, to the Class M-4 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(F) from
any
remaining Interest Remittance Amounts, to the Class M-5 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(G) from
any
remaining Interest Remittance Amounts, to the Class M-6 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(H) from
any
remaining Interest Remittance Amounts, to the Class M-7 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(I) from
any
remaining Interest Remittance Amounts, to the Class B-1 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
and
(J) from
any
remaining Interest Remittance Amounts, to the Class B-2 Certificates, the
Accrued Certificate Interest Distribution Amount for such Class;
(ii) (A)on
each
Distribution Date (a) before the Stepdown Date or (b) with respect to
which a Trigger Event is in effect, to the holders of the related Class or
Classes of Offered Certificates and the Class B-1 Certificates and Class B-2
Certificates then entitled to distributions of principal as set forth below,
from Available Funds remaining after making distributions pursuant to clause
(i)
above, an amount equal to the Principal Distribution Amount sequentially, to
the
Class A-1, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7, Class B-1 and Class B-2 Certificates, in that
order, until the respective Class Certificate Balances thereof are reduced
to
zero
(B) on
each
Distribution Date (a) on and after the Stepdown Date and (b) as long as a
Trigger Event is not in effect, to the holders of the related Class or Classes
of Offered Certificates and the Class B-1 Certificates and Class B-2
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 amounts and order
of priority:
(a) to
the
Class A Certificates, the lesser of (x) the Principal Distribution Amount and
(y) the Class A Principal Distribution Amount, allocated sequentially to the
Class A-1, Class A-2 and Class A-3 Certificates, in that order, until the
respective Class Certificate Balances are reduced to zero;
(b) 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)(a) above and (y) the Class M-1 Principal Distribution Amount,
until the Class Certificate Balance thereof has been reduced to
zero;
(c) 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)(a) above and to the Class M-1 Certificates in clause
(ii)(B)(b) above and (y) the Class M-2 Principal Distribution Amount, until
the
Class Certificate Balance thereof has been reduced to zero;
(d) 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)(a) above, to the Class M-1 Certificates in clause (ii)(B)(b)
above and to the Class M-2 Certificates in clause (ii)(B)(c) above and (y)
the
Class M-3 Principal Distribution Amount, until the Class Certificate Balance
thereof has been reduced to zero;
(e) 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)(a) above, to the Class M-1 Certificates in clause (ii)(B)(b)
above, to the Class M-2 Certificates in clause (ii)(B)(c) above and to the
Class
M-3 Certificates in clause (ii)(B)(d) above and (y) the Class M-4 Principal
Distribution Amount, until the Class Certificate Balance thereof has been
reduced to zero;
(f) 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)(a) above, to the Class M-1 Certificates in clause (ii)(B)(b)
above, to the Class M-2 Certificates in clause (ii)(B)(c) above, to the Class
M-3 Certificates in clause (ii)(B)(d) above and to the Class M-4 Certificates
in
clause (ii)(B)(e) above and (y) the Class M-5 Principal Distribution Amount,
until the Class Certificate Balance thereof has been reduced to
zero;
(g) 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)(a) above, to the Class M-1 Certificates in clause (ii)(B)(b)
above, to the Class M-2 Certificates in clause (ii)(B)(c) above, to the Class
M-3 Certificates in clause (ii)(B)(d) above, to the Class M-4 Certificates
in
clause (ii)(B)(e) above and to the Class M-5 Certificates in clause (ii)(B)(f)
above and (y) the Class M-5 Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(h) to
the
Class M-7 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)(a) above, to the Class M-1 Certificates in clause (ii)(B)(b)
above, to the Class M-2 Certificates in clause (ii)(B)(c) above, to the Class
M-3 Certificates in clause (ii)(B)(d) above, to the Class M-4 Certificates
in
clause (ii)(B)(e) above, to the Class M-5 Certificates in clause (ii)(B)(f)
above and to the Class M-6 Certificates in clause (ii)(B)(g) above and
(y) the Class M-7 Principal Distribution Amount, until the Class
Certificate Balance thereof has been reduced to zero;
(i) 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)(a) above, to the Class M-1 Certificates in clause (ii)(B)(b)
above, to the Class M-2 Certificates in clause (ii)(B)(c) above, to the Class
M-3 Certificates in clause (ii)(B)(d) above, to the Class M-4 Certificates
in
clause (ii)(B)(e) above, to the Class M-5 Certificates in clause (ii)(B)(f)
above, to the Class M-6 Certificates in clause (ii)(B)(g) above and to the
Class
M-7 Certificates in clause (ii)(B)(h) above and (y) the Class B-1 Principal
Distribution Amount, until the Class Certificate Balance thereof has been
reduced to zero; and
(j) 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)(a) above,
to
the Class M-1 Certificates in clause (ii)(B)(b) above, to the Class M-2
Certificates in clause (ii)(B)(c) above, to the Class M-3 Certificates in clause
(ii)(B)(d) above, to the Class M-4 Certificates in clause (ii)(B)(e) above,
to
the Class M-5 Certificates in clause (ii)(B)(f) above, to the Class M-6
Certificates in clause (ii)(B)(g) above, to the Class M-7 Certificates in clause
(ii)(B)(h) above and to the Class B-1 Certificates in clause (ii)(B)(i)
above
and (y)
the Class B-2 Principal Distribution Amount, until the Class Certificate Balance
thereof has been reduced to zero;
(iii) any
amount remaining after the distributions in clauses (i) and (ii) above, plus
as
specifically indicated below, from amounts on deposit in the Excess Reserve
Account, shall be distributed in the following order of priority:
(A) to
the
holders of the Class M-1 Certificates, any Unpaid Interest Amount for such
Class;
(B) to
the
holders of the Class M-2 Certificates, any Unpaid Interest Amount for such
Class;
(C) to
the
holders of the Class M-3 Certificates, any Unpaid Interest Amount for such
Class;
(D) to
the
holders of the Class M-4 Certificates, any Unpaid Interest Amount for such
Class;
(E) to
the
holders of the Class M-5 Certificates, any Unpaid Interest Amount for such
Class;
(F) to
the
holders of the Class M-6 Certificates, any Unpaid Interest Amount for such
Class;
(G) to
the
holders of the Class M-7 Certificates, any 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
Excess Reserve Fund Account, the amount of any Basis Risk Payment for such
Distribution Date, to the extent not covered, in the case of the LIBOR
Certificates, by Yield Maintenance Agreement Payments;
(K) from
funds on deposit in the Excess Reserve Fund Account (not including any Yield
Maintenance Agreement Payments included in that account), an amount equal to
any
Basis Risk Carry Forward Amount with respect to the LIBOR Certificates and
the
Class M-5, Class B-1 and Class B-2 Certificates for that Distribution Date,
first, to the Class A-1 Certificates and Class A-3 Certificates on a pro rata
basis, second, to the Class M-1 Certificates, third, to the Class M-2
Certificates, fourth, to the Class M-3 Certificates, fifth, to the Class M-4
Certificates, sixth, to the Class M-5 Certificates, seventh, to the Class M-6
Certificates, eighth, to the Class M-7 Certificates, ninth, to the Class B-1
Certificates and tenth, to the Class B-2 Certificates, in each case up to their
respective unpaid remaining Basis Risk Carry Forward Amounts, in each case
to
the extent not covered by the Yield Maintenance Agreement Payments;
(L) to
the
Offered Certificates and the Class B-1 Certificates and Class B-2 Certificates,
any Relief Act Interest Shortfalls, on a pro rata basis;
(M) to
the
holders of the Class X Certificates, the remainder of the Class X Distributable
Amount not distributed pursuant to Sections 4.02(a)(iii)(A)-(L);
and
(N) to
the
holders of the Class R Certificates, any remaining amount.
Notwithstanding
the foregoing, if the Stepdown Date is the date on which the aggregate Class
Certificate Balance of the Class A Certificates is reduced to zero, any
Principal Distribution Amount remaining after distribution thereof to the Class
A Certificates will be included as part of the distributions pursuant to clause
(ii)(B) above. Notwithstanding the reduction of the aggregate Class Certificate
Balance of the Class M, Class B and Class X Certificates to zero, any principal
distributions allocated to the Class A Certificates will be allocated
concurrently on a pro rata basis by aggregate Class Certificate Balance to
the
Class A-1, Class A-2 and Class A-3 Certificates.
If
on any
Distribution Date, as a result of the foregoing allocation rules, the Class
A
Certificates do not receive the related Accrued Certificate Interest
Distribution Amount or the related Unpaid Interest Amount, if any, then that
unpaid amount will be recoverable by the holders of that Class, with interest
thereon, on future Distribution Dates, as an Unpaid Interest Amount, subject
to
the priorities described above. In the event the Class Certificate Balance
of
any Class of Certificates has been reduced to zero, that Class of Certificates
shall no longer be entitled to receive any related unpaid Basis Risk Carry
Forward Amounts except to the extent the Class Certificate Balance is increased
as a result of any Subsequent Recovery.
(b) On
each
Distribution Date, all amounts representing Prepayment Premiums from the
Mortgage Loans received during the related Prepayment Period shall be
distributed by the Securities Administrator to the holders of the Class P
Certificates.
(c) On
any
Distribution Date, any Relief Act Interest Shortfalls and Net Prepayment
Interest Shortfalls for such Distribution Date will be allocated pro rata,
as a
reduction of the Accrued Certificate Interest Distribution Amounts for the
Offered Certificates and the Class B-1 Certificates and Class B-2 Certificates,
based on the amount of interest to which such Classes would otherwise be
entitled on such Distribution Date.
Section
4.03 Monthly
Statements to Certificateholders. (a)
Not
later than each Distribution Date, the Securities Administrator shall make
available to each Certificateholder, the Servicer, the Depositor and each Rating
Agency a statement, based substantially on information provided by the Servicer,
setting forth with respect to the related distribution:
(i) the
amount of Available Funds allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments and Liquidation Proceeds included
therein;
(ii) the
amount of Available Funds allocable to interest, any Unpaid Interest Amounts
included in such distribution and any remaining Unpaid Interest Amounts 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;
(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 of
the
shortfall as between principal and interest, including any Basis Risk Carry
Forward Amount not covered by amounts in the Excess Reserve Fund
Account;
(iv) the
Class
Certificate Balance of each Class of Certificates after giving effect to the
distribution of principal on such Distribution Date;
(v) the
Pool
Stated Principal Balance for the following Distribution Date;
(vi) the
amount of the expenses and fees paid to or retained by the Servicers, the
Securities Administrator and the Master Servicer (stated separately and in
the
aggregate) or paid to or retained by the Securities Administrator with respect
to such Distribution Date;
(vii) the
Pass-Through Rate for each such Class of Certificates with respect to such
Distribution Date;
(viii) the
amount of Advances included in the distribution on such Distribution Date and
the aggregate amount of Advances reported by the Servicers (and the Master
Servicer as successor servicer and any other servicer, if applicable) as
outstanding (if reported by the Servicer) as of the close of business on the
Determination Date immediately preceding such Distribution Date;
(ix) the
number and aggregate outstanding principal balances of Mortgage Loans
(1) as to which the Scheduled Payment is Delinquent 31 to 60 days, 61 to 90
days, 91 to 120 days, 121 to 150 days, 151 to 180 days and 180+ days,
(2) that have become REO Property, (3) that are in foreclosure and
(4) that are in bankruptcy, in each case as of the close of business on the
last Business Day of the immediately preceding month;
(x) with
respect to all Mortgage Loans that became REO Properties during the preceding
calendar month, the aggregate number of such Mortgage Loans and the aggregate
Stated Principal Balance of such Mortgage Loans 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 last Business Day of the
immediately preceding month;
(xii) whether
a
Trigger Event has occurred and is continuing (including the separate components
of the calculation 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;
(xv) the
amount of any Net Monthly Excess Cash Flow on such Distribution Date and the
allocation thereof to the Certificateholders with respect to Applied Realized
Loss Amounts and Unpaid Interest Amounts;
(xvi) the
Overcollateralized Amount and Specified Overcollateralized Amount;
(xvii) Prepayment
Premiums collected by or paid by the Servicers;
(xviii) the
Cumulative Loss Percentage;
(xix) the
amount distributed on the Class X Certificates;
(xx) the
amount of any Subsequent Recoveries for such Distribution Date;
(xxi) the
Record Date for such Distribution Date;
(xxii) each
Mortgage Loan that has been released to the Class X-1 Certificateholder pursuant
to Section 3.15(b);
(xxiii) one-month,
three-month and twelve-month CPR;
(xxiv) the
cumulative amount of Realized Losses on the Mortgage Loans; and
(xxv) the
amount of any Yield Maintenance Agreement Payment for such Distribution
Date.
(b) The
Securities Administrator’s responsibility for providing the above statement to
the Certificateholders, each Rating Agency, the Master Servicer, the Servicers
and the Depositor is limited to the availability, timeliness and accuracy of
the
information derived from the Master Servicer and the Servicers. The Securities
Administrator shall make available the above statement via the Securities
Administrator’s internet website. The Securities Administrator’s website will
initially be located at xxxxx://xxx.xxxxxxx.xxx/ and assistance in using the
website can be obtained by calling the Securities Administrator’s customer
service desk at (000) 000-0000. A paper copy of the above statement will also
be
made available upon request.
(c) Upon
request, within a reasonable period of time after the end of each calendar
year,
the Securities Administrator shall cause to be furnished to each Person who
at
any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i) and (a)(ii) of this
Section 4.03 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of
the
Securities Administrator shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time
in
effect.
(d) Not
later
than the Reporting Date, the applicable Servicer shall furnish to the Securities
Administrator a monthly remittance advice statement (in the form of Exhibit
W
and Exhibit X or in a format mutually agreed upon by such Servicer and the
Securities Administrator) containing such information as shall be reasonably
requested by the Securities Administrator to provide the reports required by
Section 4.03(a) as to the accompanying remittance and the period ending on
the close of business on the last Business Day of the immediately preceding
month (the “Servicer Remittance Report”).
Each
Servicer shall furnish to the Securities Administrator an individual loan
accounting report, as of the last Business Day of each month, to document
Mortgage Loan payment activity on an individual Mortgage Loan basis. With
respect to each month, the corresponding individual loan accounting report
(in
electronic format) shall be received by the Securities Administrator no later
than the Reporting Date, which report shall contain the following:
(i) with
respect to each Scheduled Payment, the amount of such remittance allocable
to
principal (including a separate breakdown of any Principal Prepayment, including
the date of such prepayment, and any Prepayment Premiums, along with a detailed
report of interest on Principal Prepayment amounts remitted in accordance with
Section 3.25);
(ii) with
respect to each Scheduled Payment, the amount of such remittance allocable
to
interest;
(iii) the
amount of servicing compensation received by such Servicer during the prior
distribution period;
(iv) the
individual and aggregate Stated Principal Balance of the Mortgage
Loans;
(v) the
aggregate of any expenses reimbursed to such Servicer during the prior
distribution period pursuant to Section 3.11;
(vi) the
number and aggregate outstanding principal balances of Mortgage Loans
(a) delinquent (1) 31 to 60 days, (2) 61 to 90 days, (3) 91
to 120 days, (4) 121 to 150 days, (5) 151 to 180 days and (6) 181 days or more;
(b) as to which foreclosure has commenced; and (c) as to which REO
Property has been acquired;
(vii) each
Mortgage Loan which has been altered, modified or varied during such month,
and
the reason for such modification (i.e., extension of maturity date, Mortgage
Interest Rate);
(viii) with
respect to each Liquidated Mortgage Loan, the amount of any Realized Losses
for
such Mortgage Loan;
(ix) each
Mortgage Loan that has been released to the Class X-1 Certificateholder pursuant
to Section 3.15(d); and
(x) any
other
information reasonably required by the Securities Administrator to enable it
to
prepare the monthly statement referred to in Section 4.03(a).
(e) For
all
purposes of this Agreement, with respect to any Mortgage Loan, delinquencies
shall be determined and reported based on the so-called “OTS” methodology for
determining delinquencies on mortgage loans similar to the Mortgage Loans as
described in the definition of “Delinquent.”
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 Securities
Administrator.
Section
4.05 Allocation
of Applied Realized Loss Amounts.
Any
Applied Realized Loss Amounts will be allocated by the Securities Administrator
to the most junior Class of Subordinated Certificates then Outstanding in
reduction of the Class Certificate Balance thereof. In the event Applied
Realized Loss Amounts are allocated to any Class of Offered Certificates and
the
Class B-1 Certificates and Class B-2 Certificates, their Class Principal
Balances shall be reduced by the amount so allocated, and no funds will be
distributable with respect to the written down amounts (including without
limitation Basis Risk Carry Forward Amounts) or with respect to interest on
the
written down amounts on that Distribution Date or any future Distribution Dates,
even if funds are otherwise available for distribution. Notwithstanding the
foregoing, the Class Certificate Balance of each Class of Subordinated
Certificates that has been previously reduced by Applied Realized Loss Amounts
will be increased, in order of seniority, by the amount of the Subsequent
Recoveries (but not in excess of the Applied Realized Loss Amount allocated
to
the applicable Class of Subordinated Certificates).
All
Realized Losses on the Mortgage Loans shall be allocated by the Securities
Administrator on each Distribution Date to the following REMIC I Regular
Interests in the specified percentages, as follows: first, to Uncertificated
Interest payable to the REMIC I Regular Interest I-LTAA and REMIC I Regular
Interest I-LTZZ up to an aggregate amount equal to the REMIC I Interest Loss
Allocation Amount, 98.00% and 2.00%, respectively; second, to the Uncertificated
Balances of the REMIC I Regular Interest I-LTAA and REMIC I Regular Interest
I-LTZZ up to an aggregate amount equal to the REMIC I Principal Loss Allocation
Amount, 98.00% and 2.00%, respectively; third, to the Uncertificated Balances
of
REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTB2 and REMIC
I
Regular Interest I-LTZZ, 98.00%, 1.00% and 1.00%, respectively, until the
Uncertificated Balance of REMIC I Regular Interest I-LTB2 has been reduced
to
zero; fourth, to the Uncertificated Balances of REMIC I Regular Interest I-LTAA,
REMIC I Regular Interest I-LTB1 and REMIC I Regular Interest I-LTZZ, 98.00%,
1.00% and 1.00%, respectively, until the Uncertificated Balance of REMIC I
Regular Interest I-LTB1 has been reduced to zero; fifth, to the Uncertificated
Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM7
and
REMIC I Regular Interest I-LTZZ, 98.00%, 1.00% and 1.00%, respectively, until
the Uncertificated Balance of REMIC I Regular Interest I-LTM7 has been reduced
to zero; sixth, to the Uncertificated Balances of REMIC I Regular Interest
I-LTAA, REMIC I Regular Interest I-LTM6 and REMIC I Regular Interest I-LTZZ,
98.00%, 1.00% and 1.00%, respectively, until the Uncertificated Balance of
REMIC
I Regular Interest I-LTM6 has been reduced to zero; seventh, to the
Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM5 and REMIC I Regular Interest I-LTZZ, 98.00%, 1.00% and 1.00%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM5 has been reduced to zero; eighth, to the Uncertificated Balances of
REMIC
I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM4 and REMIC I Regular
Interest I-LTZZ, 98.00%, 1.00% and 1.00%, respectively, until the Uncertificated
Balance of REMIC I Regular Interest I-LTM4 has been reduced to zero; ninth,
to
the Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM3 and REMIC I Regular Interest I-LTZZ, 98.00%, 1.00% and 1.00%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM3 has been reduced to zero; tenth, to the Uncertificated Balances of REMIC
I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM2 and REMIC I Regular
Interest I-LTZZ, 98.00%, 1.00% and 1.00%, respectively, until the Uncertificated
Balance of REMIC I Regular Interest I-LTM2 has been reduced to zero; and
eleventh, to the Uncertificated Balances of REMIC I Regular Interest I-LTAA,
REMIC I Regular Interest I-LTM1 and REMIC I Regular Interest I-LTZZ, 98.00%,
1.00% and 1.00%, respectively, until the Uncertificated Balance of REMIC I
Regular Interest I-LTM1 has been reduced to zero.
Section
4.06 Distributions
on the REMIC I Regular Interests.
(a) (1)On
each
Distribution Date, the following amounts, in the following order of priority,
shall be distributed by REMIC I to REMIC II on account of the REMIC I Regular
Interests or withdrawn from the Distribution Account and distributed to the
holders of the Class R-I Interest, as the case may be:
(i) to
Holders of REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTA1,
REMIC I Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I
Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest
I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC
I Regular Interest I-LTB1, REMIC I Regular Interest I-LTB2 and REMIC I Regular
Interest I-LTZZ, pro
rata,
in an
amount equal to (A) the Uncertificated Interest for such Distribution Date,
plus
(B) any amounts in respect thereof remaining unpaid from previous Distribution
Dates. Amounts payable as Uncertificated Interest in respect of REMIC I Regular
Interest I-LTZZ shall be reduced when the REMIC I Overcollateralization Amount
is less than the REMIC I Required Overcollateralization Amount, by the lesser
of
(x) the amount of such difference and (y) the Maximum I-LTZZ Uncertificated
Interest Deferral Amount and such amount will be payable to REMIC I Regular
Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I Regular Interest
I-LTA3, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC
I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular
Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular Interest
I-LTM7, REMIC I Regular Interest I-LTB1 and REMIC I Regular Interest I-LTB2
in
the same proportion as the Overcollateralization Deficiency is allocated to
the
Corresponding Certificates and the Uncertificated Balance of REMIC I Regular
Interest I-LTZZ shall be increased by such amount;
to
the
Holders of REMIC I Regular Interests, in an amount equal to the remainder of
the
Available Distribution Amount funds for such Distribution Date after the
distributions made pursuant to clause (i) above, allocated as
follows:
(A) 98.00%
of
such remainder to the Holders of REMIC I Regular Interest I-LTAA, until the
Uncertificated Balance of such Uncertificated REMIC I Regular Interest is
reduced to zero;
(B) 2.00%
of
such remainder, first, to the Holders of REMIC I Regular Interest I-LTA1, REMIC
I Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular
Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular Interest
I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC
I Regular Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I Regular
Interest I-LTB1 and REMIC I Regular Interest I-LTB2, 1% of and in the same
proportion as principal payments are allocated to the Corresponding
Certificates, until the Uncertificated Balances of such REMIC I Regular
Interests are reduced to zero and second to the Holders of REMIC I Regular
Interest I-LTZZ, until the Uncertificated Balance of such REMIC I Regular
Interest is reduced to zero; then
(C) any
remaining amount to the Holders of the Class RC Certificates;
provided,
however, that 98.00% and 2.00% of any principal payments that are attributable
to an Overcollateralization Reduction Amount shall be allocated to Holders
of
REMIC I Regular Interest I-LTAA and REMIC I Regular Interest I-LTZZ,
respectively.
ARTICLE
V
THE
CERTIFICATES
Section
5.01 The
Certificates.
The
Certificates shall be substantially in the forms attached hereto as exhibits.
The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples in excess thereof (except that one Certificate
in each Class may be issued in a different amount which must be in excess
of the applicable minimum denomination) and aggregate denominations per
Class set forth in the Preliminary Statement.
The
Depositor hereby directs the Securities Administrator to register the
Class X, Class X-1 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 such Class X and Class P Certificates to Xxxxx Fargo Bank, N.A.,
or
to such other Person or Persons as the Depositor shall request.
Subject
to Section 11.02 respecting the final distribution on the Certificates, on
each Distribution Date the Securities Administrator shall make distributions
to
each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such Holder
at a
bank or other entity having appropriate facilities therefor as directed by
that
Certificateholder by written wire instructions provided to the Securities
Administrator or (y), in the event that no wire instructions are provided to
the
Securities Administrator, by check mailed by first class mail to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
The
Certificates shall be executed by manual or facsimile signature on behalf of
the
Securities Administrator by an authorized officer. Certificates bearing the
manual or facsimile signatures of individuals who were, at the time such
signatures were affixed, authorized to sign on behalf of the Securities
Administrator shall bind the Securities Administrator, notwithstanding that
such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of any such Certificates or did not hold such
offices at the date of such Certificate. No Certificate shall be entitled to
any
benefit under this Agreement, or be valid for any purpose, unless authenticated
by the Securities Administrator by manual signature, and such authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly executed and delivered hereunder. All
Certificates shall be dated the date of their authentication. On the Closing
Date, the Securities Administrator shall authenticate the Certificates to be
issued at the direction of the Depositor, or any Affiliate thereof.
The
Depositor shall provide, or cause to be provided, to the Securities
Administrator on a continuous basis, an adequate inventory of Certificates
to
facilitate transfers.
Section
5.02 Certificate
Register; Registration of Transfer and Exchange of Certificates.
(a)
The
Securities Administrator shall maintain, or cause to be maintained in accordance
with the provisions of Section 5.06, a Certificate Register for the Trust
Fund in which, subject to the provisions of subsections (b) and (c) below
and to such reasonable regulations as it may prescribe, the Securities
Administrator shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. Upon surrender
for
registration of transfer of any Certificate, the Securities Administrator shall
execute and deliver, in the name of the designated transferee or transferees,
one or more new Certificates of the same Class and aggregate Percentage
Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Securities Administrator. Whenever
any
Certificates are so surrendered for exchange, the Securities Administrator
shall
execute, authenticate, and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by
a
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by the Holder thereof or his attorney duly
authorized in writing. In the event the Depositor or its 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 transfer of the Class X, Class X-1, Class P,
Class R or Class RC Certificates, to the Depositor or an Affiliate of
the Depositor, (ii) the transfer of the Class X or Class P
Certificates to the NIM Issuer or the NIM Trustee, or (iii) a transfer of
the Class X or Class P Certificates from the NIM Issuer or the NIM
Trustee to the Depositor or an Affiliate of the Depositor, 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-1 (the “Rule 144A Letter”) or Exhibit I-2 (the
“Non-Rule 144A Investment Letter”) or (ii) in the case of the Class X
Certificates or Class X-1 Certificates, there shall be delivered to the
Securities Administrator at the expense of the transferor an Opinion of Counsel
that such transfer may be made without registration under the Securities Act.
In
the event that a transfer of a Private Certificate which is a Book-Entry
Certificate is to be made in reliance upon an exemption from the Securities
Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer will be deemed
to
have made as of the transfer date each of the certifications set forth in the
Transferor Certificate in respect of such Certificate and the transferee will
be
deemed to have made as of the transfer date each of the certifications set
forth
in the Rule 144A Letter in respect of such Certificate, in each case as if
such Certificate were evidenced by a Physical Certificate. The Depositor shall
provide to any Holder of a Private Certificate and any prospective transferee
designated by any such Holder, information regarding the related Certificates
and the Mortgage Loans and such other information as shall be necessary to
satisfy the condition to eligibility set forth in Rule 144A(d)(4) for
transfer of any such Certificate without registration thereof under the
Securities Act pursuant to the registration exemption provided by
Rule 144A. The Securities Administrator, the Master Servicer and each
Servicer shall cooperate with the Depositor in providing the Rule 144A
information referenced in the preceding sentence, including providing to the
Depositor such information regarding the Certificates, the Mortgage Loans and
other matters regarding the Trust Fund as the Depositor shall reasonably request
to meet its obligation under the preceding sentence. Each Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Securities Administrator, the Master Servicer, the Depositor
and
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 (1) the transfer of the Class R, Class RC,
Class X, Class X-1 or Class P Certificates to the Depositor or an
affiliate of the Depositor, (2) the transfer of the Class X or
Class P Certificates to the NIM Issuer or the NIM Trustee, or (3) a
transfer of the Class X or Class P Certificates from the NIM Issuer or
the NIM Trustee to the Depositor or an Affiliate of the Depositor, no transfer
of an ERISA-Restricted Certificate shall be made unless the Securities
Administrator shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Securities Administrator (in the event such Certificate
is a
Private Certificate or a Residual Certificate, such requirement is satisfied
only by the Securities Administrator’s receipt of a representation letter from
the transferee substantially in the form of Exhibit I-1, Exhibit I-2 or
Exhibit G (in the case of a Residual Certificate)), to the effect that either
(A) such transferee is not an employee benefit plan subject to Section 406
of ERISA, a plan or arrangement 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 or (B) in the case of an
ERISA-Restricted Certificate other than a Residual Certificate, a representation
that the purchaser is an insurance company that is purchasing such Certificates
with funds contained in an “insurance company general account” (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60
(“PTCE 95-60”)) and that the purchase and holding of such Certificates are
covered under Sections I and III of PTCE 95-60 or (ii) in the case of
any such ERISA-Restricted Certificate other than a Residual 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,
which Opinion of Counsel shall not be an expense of the Securities
Administrator, the Trustee, the Depositor, the Servicers or the Trust Fund,
addressed to the Securities Administrator, 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 Securities
Administrator, the Master Servicer, the Depositor or the Servicers 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 Class P Certificate, Class X
Certificate, Class X-1 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. Notwithstanding anything else to the
contrary herein, (a) any purported transfer of an ERISA Restricted
Certificate, other than a Class B Certificate, to or on behalf of an employee
benefit plan subject to ERISA, the Code or Similar Law without the delivery
to
the Securities Administrator of a representation letter or an Opinion of Counsel
satisfactory to the Securities Administrator as described above shall be void
and of no effect and (b) any purported transfer of a Residual Certificate
to a transferee that does not make the representation in clause (i)(A)
above 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 or arrangement subject to Section 4975 of
the Code, or any plan subject to any Similar Law or any Person investing on
behalf of or with plan assets of such plan.
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
the Securities Administrator shall be under no liability to any Person for
any
registration of transfer of any ERISA-Restricted Certificate that is in fact
not
permitted by this Section 5.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement so long as the transfer
was
registered by the Securities Administrator in accordance with the foregoing
requirements.
(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 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 G;
(iii) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (A) to obtain a Transfer Affidavit from any other Person to
whom such Person attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom
such Person is acting as nominee, trustee or agent in connection with any
Transfer of a Residual Certificate and (C) not to Transfer its Ownership
Interest in a Residual Certificate or to cause the Transfer of an Ownership
Interest in a Residual Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee;
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported Transferee.
If any purported transferee shall become a Holder of a Residual Certificate
in
violation of the provisions of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Residual
Certificate. The Securities Administrator shall be under no liability to any
Person for any registration of Transfer of a Residual Certificate that is in
fact not permitted by Section 5.02(b) and this Section 5.02(c) or for
making any payments due on such Certificate to the Holder thereof or taking
any
other action with respect to such Holder under the provisions of this Agreement
so long as the Transfer was registered after receipt of the related Transfer
Affidavit, Transferor Certificate and the Rule 144A Letter. The Securities
Administrator shall be entitled but not obligated to recover from any Holder
of
a Residual Certificate that was in fact not a Permitted Transferee at the time
it became a Holder or, at such subsequent time as it became other than a
Permitted Transferee, all payments made on such Residual Certificate at and
after either such time. Any such payments so recovered by the Securities
Administrator shall be paid and delivered by the Securities Administrator to
the
last preceding Permitted Transferee of such Certificate; and
(v) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Securities Administrator, all information necessary to compute
any tax imposed under Section 860E(e) of the Code as a result of a Transfer
of an Ownership Interest in a Residual Certificate to any Holder who is not
a
Permitted Transferee.
The
restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund,
the
Depositor, the Trustee, the Securities Administrator or the Servicers, to the
effect that the elimination of such restrictions will not cause either Trust
REMIC to fail to qualify as a REMIC at any time that the Certificates are
Outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or another Person. Each Person holding or acquiring any
Ownership Interest in a Residual Certificate hereby consents to any amendment
of
this Agreement which, based on an Opinion of Counsel furnished to the Securities
Administrator, is reasonably necessary (a) to ensure that the record
ownership of, or any beneficial interest in, a Residual Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a
Residual Certificate which is held by a Person that is not a Permitted
Transferee to a Holder that is a Permitted Transferee.
(d) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of
the parties to such transfers.
(e) Except
as
provided below, the Book-Entry Certificates shall at all times remain registered
in the name of the Depository or its nominee and at all times:
(i) registration of the Certificates may not be transferred by the
Securities Administrator except to another Depository; (ii) the Depository
shall maintain book-entry records with respect to the Certificate Owners and
with respect to ownership and transfers of such Book-Entry Certificates;
(iii) ownership and transfers of registration of the Book-Entry
Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (iv) the Depository may collect its
usual and customary fees, charges and expenses from its Depository Participants;
(v) the Securities Administrator shall deal with the Depository, Depository
Participants and indirect participating firms as representatives of the
Certificate Owners of the Book-Entry Certificates for purposes of exercising
the
rights of holders under this Agreement, and requests and directions for and
votes of such representatives shall not be deemed to be inconsistent if they
are
made with respect to different Certificate Owners; and (vi) the Securities
Administrator may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its Depository Participants and
furnished by the Depository Participants with respect to indirect participating
firms and persons shown on the books of such indirect participating firms as
direct or indirect Certificate Owners.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owner. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners it represents
or of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures.
If
(x) (i) the Depository or the Depositor advises the Securities
Administrator in writing that the Depository is no longer willing or able to
properly discharge its responsibilities as Depository, and (ii) the
Securities Administrator or the Depositor is unable to locate a qualified
successor, or (y) the Depositor notifies the Depository of its intent to
terminate the book-entry system through the Depository and, upon receipt of
notice of such intent from the Depository, the Depository Participants holding
beneficial interests in the Book-Entry Certificates agree to initiate such
termination, the Securities Administrator shall notify all Certificate Owners,
through the Depository, of the occurrence of any such event and of the
availability of definitive, fully-registered Certificates (the “Definitive
Certificates”) to Certificate Owners requesting the same. Upon surrender to the
Securities Administrator of the related Class of Certificates by the Depository,
accompanied by the instructions from the Depository for registration, the
Securities Administrator shall issue the Definitive Certificates. None of the
Servicers, the Depositor or the Securities Administrator shall be liable for
any
delay in delivery of such instruction and each may conclusively rely on, and
shall be protected in relying on, such instructions. The Depositor shall provide
the Securities Administrator with an adequate inventory of Certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates all references herein to obligations imposed
upon or to be performed by the Depository shall be deemed to be imposed upon
and
performed by the Securities Administrator, to the extent applicable with respect
to such Definitive Certificates and the Securities Administrator shall recognize
the Holders of the Definitive Certificates as Certificateholders hereunder;
provided, that the Securities Administrator shall not by virtue of its
assumption of such obligations become liable to any party for any act or failure
to act of the Depository.
(f) Each
Private Certificate presented or surrendered for registration of transfer or
exchange shall be accompanied by a written instrument of transfer and
accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and all appropriate
attachments) or W-9 in form satisfactory to the Securities Administrator, duly
executed by the Certificateholder or his attorney duly authorized in writing.
Each Certificate presented or surrendered for registration of transfer or
exchange shall be cancelled and subsequently disposed of by the Securities
Administrator in accordance with its customary practice. No service charge
shall
be made for any registration of transfer or exchange of Private Certificates,
but the Securities Administrator may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with
any
transfer or exchange of Private Certificates.
Section
5.03 Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(a) any mutilated Certificate is surrendered to the Securities
Administrator, or the Securities Administrator receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and
(b) there is delivered to the Depositor, the Servicers, the Master
Servicer, the Trustee and the Securities Administrator such security or
indemnity as may be required by them to hold each of them harmless, then, in
the
absence of notice to the Securities Administrator that such Certificate has
been
acquired by a bona fide purchaser, the Securities Administrator shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the Securities Administrator may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Securities Administrator) connected therewith. Any
replacement Certificate issued pursuant to this Section 5.03 shall
constitute complete and indefeasible evidence of ownership, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
Section
5.04 Persons
Deemed Owners.
The
Servicers, the Securities Administrator, the Master Servicer, the Trustee,
the
Depositor, and any agent of the Servicers, the Securities Administrator, the
Master Servicer, the Trustee or the Depositor 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 Servicers, the Securities Administrator,
the Master Servicer, the Trustee, the Depositor or any agent of the Servicers,
the Securities Administrator, the Master Servicer, the Trustee or the Depositor
shall be affected by any notice to the contrary.
Section
5.05 Access
to List of Certificateholders’ Names and Addresses.
If three
or more Certificateholders (a) request such information in writing from the
Securities Administrator, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders propose to transmit, or if the
Depositor, the Trustee or a Servicer shall request such information in writing
from the Securities Administrator, then the Securities Administrator shall,
within ten Business Days after the receipt of such request, provide the
Depositor, the Trustee, 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 offices or agency or agencies in the United States where
Certificates may be surrendered for registration of transfer or exchange. The
Securities Administrator initially designates its Corporate Trust Office for
registration of transfer or exchange purposes located at Xxxxx Xxxxxx xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust
Services - GSAMP 2006-S4. The Securities Administrator shall give prompt written
notice to the Certificateholders of any change in such location of any such
office or agency, for purposes of the surrender of Certificates for the final
distribution. The Securities Administrator shall give prompt written notice
to
the Certificateholders of any change in such location of any such office or
agency.
ARTICLE
VI
THE
DEPOSITOR AND THE SERVICERS
Section
6.01 Respective
Liabilities of the Depositor and the Servicers.
The
Depositor and each of the Servicers shall each be liable in accordance herewith
only to the extent of the obligations specifically and respectively imposed
upon
and undertaken by them herein.
Section
6.02 Merger
or Consolidation of the Depositor or a Servicer.
The
Depositor and each Servicer will each keep in full effect its existence, rights
and franchises as a corporation, national banking association or limited
liability company as the case may be, under the laws of the United States or
under the laws of one of the states thereof and will each obtain and preserve
its qualification to do business as a foreign corporation or limited
partnership, as applicable, in each jurisdiction in which such qualification
is
or shall be necessary to protect the validity and enforceability of this
Agreement, or any of the Mortgage Loans and to perform its respective duties
under this Agreement.
Any
Person into which the Depositor or a Servicer may be merged or consolidated,
or
any Person resulting from any merger or consolidation to which the Depositor
or
a Servicer shall be a party, or any Person succeeding to the business of the
Depositor or a Servicer, shall be the successor of the Depositor or such
Servicer, as the case may be, hereunder, without the execution or filing of
any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that the successor
or
surviving Person to such Servicer shall be qualified to sell mortgage loans
to,
and to service mortgage loans on behalf of, Xxxxxx Xxx or Xxxxxxx Mac, and
meets
the requirements of Section 7.02, and provided, further, that such merger,
consolidation or succession does not adversely affect the then current rating
or
ratings on the Offered Certificates and the Class B-1 Certificates and Class
B-2
Certificates.
Section
6.03 Limitation
on Liability of the Depositor, the Servicers and Others.
Neither
the Depositor, the Servicers nor any of their respective directors, officers,
employees or agents shall be under any liability to the Trust Fund 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 Depositor, the
Servicers or any such Person against any breach of representations or warranties
made by it herein or protect the Depositor, the Servicers or any such Person
from any liability which would otherwise be imposed by reasons of willful
misfeasance, bad faith or negligence (or gross negligence in the case of the
Depositor) in the performance of duties or by reason of reckless disregard
of
obligations and duties hereunder. The Depositor, each Servicer and any director,
officer, employee or agent of the Depositor and each Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by
any Person respecting any matters arising hereunder. The Depositor, each
Servicer and any director, officer, employee, Affiliate or agent of the
Depositor and each Servicer shall be indemnified by the Trust Fund and held
harmless against any loss, liability or expense incurred in connection with
any
audit, controversy or judicial proceeding relating to a governmental taxing
authority or any legal action relating to this Agreement or the Certificates
or
any other unanticipated or extraordinary expense, other than any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or negligence
(or gross negligence in the case of the Depositor) in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. Neither the Depositor nor any Servicer shall be under any obligation
to appear in, prosecute or defend any legal action that is not incidental to
its
respective duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that each of the Depositor and each
Servicer may in its discretion undertake any such action (or direct the Trustee
to undertake such actions pursuant to Section 2.08 for the benefit of the
Certificateholders) that it may deem necessary or desirable in respect of this
Agreement and the rights and duties of the parties hereto and interests of
the
Trustee and the Certificateholders hereunder. In such event, the legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund, and the Depositor, and the
Servicer shall be entitled to be reimbursed therefor out of the Collection
Account.
Section
6.04 Limitation
on Resignation of a Servicer. (a)
No
Servicer shall assign this Agreement or resign from the obligations and duties
hereby imposed on it except (i) by mutual consent of the applicable
Servicer, the Depositor and the Master Servicer or (ii) upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by such Servicer. Any such
determination permitting the resignation of a Servicer under clause (ii) above
shall be evidenced by an Opinion of Counsel (which Opinion of Counsel shall
not
be an expense of the Master Servicer, the Securities Administrator, the Trustee
or the Trust Fund) to such effect delivered to the Depositor, the Trustee,
the
Master Servicer and the Securities Administrator which Opinion of Counsel shall
be in form and substance acceptable to the Depositor, the Trustee, the Master
Servicer and the Securities Administrator. No such resignation shall become
effective until a successor shall have assumed the Servicer’s responsibilities
and obligations hereunder.
(b) Notwithstanding
anything to the contrary herein, each Servicer may pledge or assign as
collateral all its rights, title and interest under this Agreement to a lender.
No such pledge shall reduce or otherwise affect such Servicer’s obligations
under this Agreement.
Section
6.05 Additional
Indemnification by the Servicers; Third Party Claims. (a)
Each
Servicer shall indemnify the Depositor, the Master Servicer, the Securities
Administrator and the Trustee (and any Affiliate, director, officer, employee
or
agent of the Depositor, the Master Servicer, the Securities Administrator and
the Trustee) and hold each of them harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain in any way related to (i) any breach by such Servicer of
its representations and warranties referred to in Section 2.03(a),
(ii) any error in any tax or information return prepared by such Servicer,
or (iii) the failure of such Servicer to perform its duties and service the
Mortgage Loans in compliance with the terms of this Agreement. The applicable
Servicer immediately shall notify the Depositor, the Master Servicer, the
Securities Administrator and the Trustee in writing if such claim is made by
a
third party with respect to this Agreement or the Mortgage Loans, assume (with
the prior written consent of the Depositor, the Master Servicer, the Securities
Administrator and the Trustee) the defense of any such claim and pay all
expenses in connection therewith, including reasonable counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or Depositor, the Master Servicer, the Securities Administrator
or
the Trustee in respect of such claim.
This
indemnity shall survive the termination of this Agreement or the earlier
resignation or removal of such Servicer.
(b) Notwithstanding
anything to the contrary contained in this Agreement, each Servicer shall
indemnify the Depositor, the Master Servicer, the Securities Administrator,
the
Purchaser, the Trustee and any director, officer, employee or agent of the
Depositor, the Purchaser, the Master Servicer, the Securities Administrator
or
the Trustee and hold them harmless against any and all claims, economic losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments, and any other related costs, fees and expenses that
any of them actually sustain, in each case that are likely foreseeable and
directly related to any failure by such Servicer or any Subservicer engaged
by
such Servicer or any Subcontractor utilized by such Servicer to deliver any
information, report, certification or accountants’ letter when and as required
under Sections 3.22, 3.23 or 8.12, including without limitation any failure
by
such Servicer to identify pursuant to Section 3.02(e) any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB.
ARTICLE
VII
DEFAULT
Section
7.01 Events
of Default.“Event
of
Default,” wherever used herein, means with respect to each Servicer
individually, any one of the following events:
(a) any
failure by a Servicer to remit to the Securities Administrator any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of one Business Day after the date upon which written notice of
such failure, requiring the same to be remedied, shall have been given to such
Servicer by the Depositor, or by the Securities Administrator, or to such
Servicer, the Depositor, the Master Servicer, the Securities Administrator
and
the Trustee by Certificateholders entitled to at least 25% of the Voting Rights;
or
(b) any
failure on the part of a Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part of such Servicer
set forth in this Agreement which continues unremedied for a period of thirty
days (except that such number of days shall be ten in the case of a failure
to
observe or perform any of the obligations set forth in Sections 3.02, 3.22,
3.23, 6.04 or 8.12; provided, however, that in the event that the Commission
grants an extension of time to the Depositor with respect to the Exchange Act
filings referenced in Section 8.12(a), such ten day cure period shall be
extended by the same time period) after the earlier of (i) the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to such Servicer by the Depositor, the Securities Administrator
or by
the Master Servicer, or to such Servicer, the Depositor, the Securities
Administrator, the Master Servicer and the Trustee by Certificateholders of
Certificates entitled to at least 25% of the Voting Rights and (ii) actual
knowledge of such failure by a Servicing Officer of such Servicer; provided,
however, that (except with respect to clauses (x) and (y) above) in the case
of
a failure or breach that cannot be cured within 30 days after notice or actual
knowledge by such Servicer, the cure period may be extended for an additional
30
days upon delivery by such Servicer to the Master Servicer of a certificate
to
the effect that such Servicer believes in good faith that the failure or breach
can be cured within such additional time period and such Servicer is diligently
pursuing remedial action; or
(c) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against a Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty days;
or
(d) a
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to a Servicer
or of
or relating to all or substantially all of its property; or
(e) a
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(f) any
failure of a Servicer to make any P&I Advance on any Remittance Date
required to be made from its own funds pursuant to Section 4.01 which
continues unremedied for one Business Day immediately following the Remittance
Date; or
(g) a
breach
of any representation and warranty of a Servicer referred to in
Section 2.03(a), which materially and adversely affects the interests of
the Certificateholders and which continues unremedied for a period of thirty
days after the date upon which written notice of such breach is given to a
Servicer by the Depositor, the Securities Administrator or by the Master
Servicer, or to such Servicer, the Depositor, the Securities Administrator,
the
Master Servicer and the Trustee by Certificateholders entitled to at least
25%
of the Voting Rights in the Certificates; or
(h)
with respect to Ocwen and AHMSI only, if a Servicer Cumulative Loss Trigger
occurs with respect to such Servicer; or
(i) with
respect to Ocwen and AHMSI only, if a Servicer Delinquency Trigger occurs with
respect to such Servicer; or
(j) with
respect to Ocwen only, Moody’s reduces its servicer rating to “SQ4” or lower or
Standard & Poor’s reduces its servicer ratings to “below average” or
lower.
If
an
Event of Default described in clauses (a) through (j) of this Section 7.01
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, the Master Servicer may, or at the
direction of Certificateholders entitled to a majority of the Voting Rights
the
Master Servicer shall, by notice in writing to the applicable Servicer (with
a
copy to each Rating Agency), terminate all of the rights and obligations of
such
Servicer under this Agreement and in and to the Mortgage Loans and the proceeds
thereof, other than its rights as a Certificateholder hereunder; provided,
however, that the Master Servicer shall not be required to give written notice
to the Servicer of the occurrence of an Event of Default described in
clauses (b) through (j) of this Section 7.01 unless and until a
Responsible Officer of the Master Servicer has actual knowledge of the
occurrence of such an Event of Default. In the event that a Responsible Officer
of the Master Servicer has actual knowledge of the occurrence of an Event of
Default described in clause (a) of this Section 7.01, the Master Servicer
shall give written notice to such Servicer of the occurrence of such an event
within one Business Day of the first day on which such Responsible Officer
obtains actual knowledge of such occurrence; provided that failure to give
such
notice shall not constitute a waiver of such Event of Default. The Master
Servicer, upon a Responsible Officer having actual knowledge of such default,
shall deliver a written notice to such Servicer of the default on any Remittance
Date on which such Servicer fails to make any deposit or payment required
pursuant to this Agreement (including, but not limited to Advances, to the
extent required by this Agreement); provided, however, that if an Event of
Default occurs due to the failure of such Servicer to make an Advance to the
extent required, the Master Servicer, as successor Servicer, or another
successor Servicer shall, prior to the next Distribution Date, immediately
make
such Advance. Any such notice to the Servicer shall also be given to each Rating
Agency and the Depositor. Notwithstanding any other provision of this Agreement,
any remedy with respect to clauses (a) or (f) of this Section 7.01
shall be effective only if taken no later than 8:00 AM Eastern time on the
Business Day immediately following (i) with respect to clause (a) of
this Section 7.01, the date of written notice to the applicable Servicer,
or (ii) with respect to clause (f) of this Section 7.01, the related
Remittance Date. On and after the receipt by the applicable Servicer of such
written notice, all authority and power of such Servicer hereunder, 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. Unless
expressly provided in such written notice, no such termination shall affect
any
obligation of such Servicer to pay amounts owed pursuant to Article VIII.
Each Servicer agrees to cooperate with the Master Servicer in effecting the
termination of such Servicer’s responsibilities and rights hereunder, including,
without limitation, the transfer to the Master Servicer of all cash amounts
which shall at the time be credited to the Collection Account of such
predecessor Servicer, or thereafter be received with respect to the Mortgage
Loans.
Notwithstanding
any termination of the activities of a Servicer hereunder, such Servicer shall
be entitled to receive from the Trust Fund, prior to transfer of its servicing
obligations hereunder, payment of all accrued and unpaid portion of the
Servicing Fees to which such Servicer would have been entitled and to continue
to receive reimbursement for all outstanding P&I Advances and Servicing
Advances, including Servicing Advances incurred prior to but not invoiced until
after the date of termination, in accordance with the terms of this Agreement.
In addition, such Servicer shall continue to be entitled to the benefits of
Section 6.03, notwithstanding any termination hereunder, with respect to
events occurring prior to such termination.
Section
7.02 Master
Servicer to Act; Appointment of Successor Servicer.
On and
after the time the Master Servicer gives, and a Servicer receives a notice
of
termination pursuant to Section 7.01, the Master Servicer shall, subject to
and to the extent provided in Sections 3.06 and 7.03, and subject to the
rights of the Master Servicer to appoint a successor Servicer, be the successor
to such Servicer in its capacity as servicer under this Agreement and the
transactions set forth or provided for herein and shall immediately assume
all
of the obligations of the applicable Servicer to make P&I Advances as
successor Servicer and shall assume and be subject to all the other
responsibilities, duties and liabilities relating thereto placed on such
Servicer by the terms and provisions hereof and applicable law as soon as
practicable but in no event later than 90 days after the receipt by a Servicer
of the notice of termination pursuant to Section 7.01. As compensation
therefor, the Master Servicer shall be entitled to all funds relating to the
Mortgage Loans that such Servicer would have been entitled to charge to the
Collection Account if such Servicer had continued to act hereunder including,
if
such Servicer was receiving the Servicing Fee, the Servicing Fee and the income
on investments or gain related to the Collection Account (in addition to income
on investments or gain related to the Distribution Account for the benefit
of
the Securities Administrator as provided herein). Notwithstanding the foregoing,
if the Master Servicer has become the successor to such Servicer in accordance
with this Section 7.02, the Master Servicer may, if it shall be unwilling
to so act, or shall, if it is prohibited by applicable law from making P&I
Advances and Servicing Advances pursuant to Section 4.01 or if it is
otherwise unable to so act, or, at the written request of Certificateholders
entitled to a majority of the Voting Rights, appoint, or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution the appointment of which does not adversely affect the then current
rating of the Certificates by each Rating Agency, as the successor to such
Servicer hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of such Servicer hereunder. No such appointment of a
successor to such 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 Mae- and Xxxxxxx Mac-approved seller/servicer
in
good standing and which has a net worth of at least $30,000,000, which is
willing to service the Mortgage Loans, which executes and delivers to the
Depositor and the Master Servicer an agreement accepting such delegation and
assignment, containing an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the terminated Servicer
(other than liabilities of the terminated Servicer under Section 6.03
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
Section 3.05, act in such capacity as hereinabove provided. In connection
with such appointment and assumption, the Master Servicer may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it, the Depositor and such successor shall agree; provided, however,
that no such compensation shall be in excess of the Servicing Fee and amounts
paid to the predecessor Servicer from investments. The Master Servicer and
such
successor shall take such action, consistent with this Agreement, as shall
be
necessary to effectuate any such succession. Neither the Master Servicer nor
any
other successor Servicer shall be deemed to be in default hereunder by reason
of
any failure to make, or any delay in making, any distribution hereunder or
any
portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure
of
the predecessor Servicer to deliver or provide, or any delay in delivering
or
providing, any cash, information, documents or records to it.
Notwithstanding
anything to the contrary herein, in the case of Ocwen only for a period of
30
days following the date on which Ocwen receives a notice of termination or
removal as a Servicer pursuant to Section 7.01 (other than a termination or
removal based upon the Event of Default listed as clause (a) or (f) in Section
7.01 above), Ocwen or its designee may appoint a successor Servicer that
satisfies the eligibility criteria of a successor Servicer set forth in this
Section 7.02, subject to the consent of the Depositor, which consent shall
not
be unreasonably withheld or delayed. The successor Servicer appointed by Ocwen
or its designee must agree to act as successor Servicer no later than such
30-day period, fully effect the servicing transfer within 90 days following
the
notice of termination or removal of Ocwen as a Servicer, make all P&I
Advances that are otherwise required to be made by Ocwen as of the date of
such
appointment, and reimburse any expenses that the Master Servicer may have
incurred in connection with the termination or removal of Ocwen and the
appointment of a successor Servicer to Ocwen. This 30-day period shall terminate
immediately if Ocwen fails to make (or cause to be made) any P&I Advances
and all payments under Section 7.01(a).
In
the
event that a Servicer is terminated pursuant to Section 7.01, the
terminated Servicer shall provide notices to the Mortgagors, transfer the
Servicing Files to a successor Servicer and pay all of its own out-of-pocket
costs and expenses related to such obligations. In addition, all Servicing
Transfer Costs incurred by parties other than the terminated Servicer shall
be
paid by the successor Servicer (in which case the successor Servicer shall
be
entitled to reimbursement therefor from the Trust Fund or if the successor
Servicer fails to pay, the Securities Administrator pays such amounts from
the
Trust Fund). If the Master Servicer is the predecessor Servicer (except in
the
case where the Master Servicer in its role as successor Servicer is being
terminated pursuant to Section 7.01 by reason of an Event of Default caused
solely by the Master Servicer as the successor Servicer and not by the
predecessor Servicer’s actions or omissions), such costs shall be paid by the
successor Servicer (in which case the successor Servicer shall be entitled
to
reimbursement therefor from the Trust Fund or if the successor Servicer fails
to
pay, the Securities Administrator pays such amounts from the Trust Fund)
promptly upon presentation of reasonable documentation of such
costs.
Any
successor to a Servicer as servicer shall give notice to the Mortgagors of
such
change of Servicer, in accordance with applicable federal and state law, and
shall, during the term of its service as Servicer, maintain in force the policy
or policies that such Servicer is required to maintain pursuant to
Section 3.13.
Any
such
successor Servicer shall be required to satisfy the requirements of a successor
Servicer under this Section 7.02.
Section
7.03 Notification
to Certificateholders. (a)
Upon any
termination of or appointment of a successor to a Servicer, the Securities
Administrator shall give prompt written notice thereof to Certificateholders
and
to each Rating Agency.
(b) Within
60
days after the occurrence of any Event of Default, the Securities Administrator
shall transmit by mail to all Certificateholders and each Rating Agency notice
of each such Event of Default hereunder known to the Securities Administrator,
unless such Event of Default shall have been cured or waived.
ARTICLE
VIII
CONCERNING
THE TRUSTEE
Section
8.01 Duties
of the Trustee.
The
Trustee, before the occurrence of a Master Servicer Event of Default and after
the curing of all Master Servicer Events of Default that may have occurred,
shall undertake to perform such duties and only such duties as are specifically
set forth in this Agreement. In case a Master Servicer Event of Default has
occurred and remains uncured, the Trustee shall exercise such of the rights
and
powers vested in it by this Agreement, and use the same degree of care and
skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee that
are specifically required to be furnished pursuant to any provision of this
Agreement shall examine them to determine whether they are in the form required
by this Agreement. The Trustee shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order, or other instrument.
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own bad faith or willful misfeasance.
Unless
a
Master Servicer Event of Default known to the Trustee has occurred and is
continuing,
(a) the
duties and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for the
performance of the duties and obligations specifically set forth in this
Agreement, no implied covenants or obligations shall be read into this Agreement
against the Trustee, and the Trustee may conclusively rely, as to the truth
of
the statements and the correctness of the opinions expressed therein, upon
any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believed in good faith to be genuine
and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
(b) the
Trustee shall not be liable for an error of judgment made in good faith by
a
Responsible Officer or Responsible Officers of the Trustee, unless it is finally
proven that the Trustee was negligent in ascertaining the pertinent facts;
and
(c) the
Trustee shall not be liable with respect to any action taken, suffered, or
omitted to be taken by it in good faith in accordance with the direction of
the
Holders of Certificates evidencing not less than 25% of the Voting Rights
relating to the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon
the Trustee under this Agreement.
Section
8.02 Certain
Matters Affecting the Trustee.
Except
as otherwise provided in Section 8.01:
(a) the
Trustee may request and rely upon and shall be protected in acting or refraining
from acting upon any resolution, Officer’s Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document believed
by
it to be genuine and to have been signed or presented by the proper party or
parties and the shall not have any responsibility to ascertain or confirm the
genuineness of any signature of any such party or parties;
(b) the
Trustee may consult with counsel, financial advisers or accountants and the
advice of any such counsel, financial advisers or accountants and any Opinion
of
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(c) the
Trustee shall not be liable for any action taken, suffered or omitted by it
in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement, nor shall the Trustee
be
liable for acts or omissions of the other;
(d) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates evidencing
not
less than 25% of the Voting Rights allocated to each Class of
Certificates;
(e) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, accountants or attorneys
and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agents, accountants or attorneys appointed with due care by it
hereunder;
(f) the
Trustee shall not be required to risk or expend its own funds or otherwise
incur
any financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not assured to it;
(g) the
Trustee shall not be liable for any loss on any investment of funds pursuant
to
this Agreement;
(h) the
Trustee shall not be deemed to have knowledge of a Master Servicer Event of
Default or an Event of Default until a Responsible Officer of the Trustee shall
have received written notice thereof except as otherwise provided in
Section 7.01; and
(i) the
Trustee shall be under no obligation to exercise any of the trusts, rights
or
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction
of
any of the Certificateholders, pursuant to this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred therein or thereby.
Section
8.03 Trustee
Not Liable for Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of any Mortgage Loan
or
related document. The Trustee shall not be accountable for the use or
application by the Depositor, the Securities Administrator, the Master Servicer
or a Servicer of any funds paid to the Depositor, the Securities Administrator,
the Master Servicer or a Servicer in respect of the Mortgage Loans or deposited
in or withdrawn from the Collection Account by the Depositor, the Securities
Administrator, the Master Servicer or a Servicer.
The
Trustee shall have no responsibility for filing or recording any financing
or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder (unless the Trustee shall have become the successor
Servicer).
Section
8.04 Trustee
May Own Certificates.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if it were not the
Trustee.
Section
8.05 Trustee’s
Fees and Expenses.
As
compensation for its activities under this Agreement, the Trustee shall be
paid
its fee by the Securities Administrator from the Securities Administrator’s own
funds pursuant to Section 4.01(f). The Trustee shall have no lien on the Trust
Fund for the payment of such fees. The Trustee and any director, officer,
employee, or agent of the Trustee shall be indemnified by the Trust Fund and
held harmless against any loss, liability, or expense (including reasonable
attorney’s fees) resulting from any error in any tax or information return
prepared by the Master Servicer or incurred in connection with any claim or
legal action relating to:
(a) this
Agreement,
(b) the
Certificates, or
(c) the
performance of any of the Trustee’s duties under this Agreement,
other
than any loss, liability, or expense (i) resulting from any breach of any
Servicer’s obligations in connection with this Agreement for which the Servicer
has performed its obligation to indemnify the Trustee pursuant to
Section 6.05 or (ii) incurred because of willful misfeasance, bad
faith, or negligence in the performance of any of its own duties under this
Agreement. This indemnity shall survive the termination of this Agreement or
the
resignation or removal of the Trustee under this Agreement. Without limiting
the
foregoing, except as otherwise agreed upon in writing by the Depositor and
the
Trustee, and except for any expense, disbursement, or advance arising from
the
Trustee’s negligence, bad faith, or willful misfeasance, the Trust Fund shall
pay or reimburse the Trustee, for all reasonable expenses, disbursements, and
advances incurred or made by the Trustee in accordance with this Agreement
with
respect to:
(A) the
reasonable compensation, expenses, and disbursements of its counsel not
associated with the closing of the issuance of the Certificates;
(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; and
(C) printing
and engraving expenses in connection with preparing any Definitive
Certificates.
Except
as
otherwise provided in this Agreement or a separate letter agreement between
the
Trustee and the Depositor, the Trustee shall not be entitled to payment or
reimbursement for any routine ongoing expenses incurred by the Trustee in the
ordinary course of its duties as Trustee under this Agreement or for any other
expenses.
Section
8.06 Eligibility
Requirements for the Trustee.
The
Trustee hereunder shall at all times be a corporation or association organized
and doing business under the laws of a state or the United States of America,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by federal or state authority and with a credit rating which would
not cause any of the Rating Agencies to reduce their respective then current
ratings of the Certificates (or having provided such security from time to
time
as is sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section 8.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with this Section 8.06,
the Trustee shall resign immediately in the manner and with the effect specified
in Section 8.07. The entity serving as Trustee may have normal banking and
trust relationships with the Depositor and its Affiliates, the Master Servicer
and its Affiliates or the Servicers and its Affiliates; provided, however,
that
such entity cannot be an Affiliate of the Depositor, the Master Servicer or
any
Servicer other than the Trustee in its role as successor to the Master
Servicer.
Section
8.07 Resignation
and Removal of the Trustee.
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice of resignation to the Depositor, the Securities
Administrator, the Master Servicer, the Servicers, and each Rating Agency not
less than 60 days before the date specified in such notice, when, subject to
Section 8.08, such resignation is to take effect, and acceptance by a
successor trustee in accordance with Section 8.08 meeting the
qualifications set forth in Section 8.06. If no successor trustee meeting
such qualifications shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice or resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment
of
a successor trustee.
If
at any
time the Trustee shall cease to be eligible in accordance with Section 8.06
and shall fail to resign after written request thereto by the Depositor, or
if
at any time the Trustee shall become incapable of acting, or shall be adjudged
as bankrupt or insolvent, or a receiver of the Trustee or of its property shall
be appointed, or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation
or
liquidation, or a tax is imposed with respect to the Trust Fund by any state
in
which the Trustee or the Trust Fund is located and the imposition of such tax
would be avoided by the appointment of a different trustee, then the Depositor
or Master Servicer may remove the Trustee and appoint a successor trustee by
written instrument, in triplicate, one copy of which shall be delivered to
the
Trustee, one copy to the Master Servicer and one copy to the successor
trustee.
The
Holders of Certificates entitled to a majority of the Voting Rights may at
any
time remove the Trustee and appoint a successor trustee by written instrument
or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which shall be delivered by the successor
Trustee to the Master Servicer, one complete set to the Trustee so removed
and
one complete set to the successor so appointed. The successor trustee shall
notify each Rating Agency of any removal of the Trustee.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to this Section 8.07 shall become effective upon acceptance of
appointment by the successor trustee as provided in
Section 8.08.
Section
8.08 Successor
Trustee.
Any
successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee and
the
Master Servicer an instrument accepting such appointment hereunder and thereupon
the resignation or removal of the predecessor trustee shall become effective
and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The Depositor, the Master Servicer and the predecessor trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for more fully and certainly vesting and confirming in the successor
trustee all such rights, powers, duties, and obligations.
No
successor trustee shall accept appointment as provided in this Section 8.08
unless at the time of its acceptance, the successor trustee is eligible under
Section 8.06 and its appointment does not adversely affect the then current
rating of the Certificates.
Upon
acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Depositor.
Section
8.09 Merger
or Consolidation of the Trustee.
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder; provided, that such corporation shall be eligible under
Section 8.06 without the execution or filing of any paper or further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In
connection with the succession to the Trustee under this Agreement by any Person
(i) into which the Trustee may be merged or consolidated, or (ii) which may
be
appointed as a successor to the Trustee, the Trustee shall notify the Depositor
and the Securities Administrator of such succession or appointment and shall
furnish to the Depositor and the Securities Administrator in writing and in
form
and substance reasonably satisfactory to the Depositor and the Securities
Administrator, all information reasonably necessary for the Securities
Administrator to accurately and timely report, pursuant to Section 8.12(g),
the
event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports
under the Exchange Act are required to be filed under the Exchange
Act).
Section
8.10 Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part
of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the
power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for
the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider appropriate. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt
by
the Master Servicer of a request to do so, or in the case an Event of Default
shall have occurred and be continuing, the Trustee alone shall have the power
to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under
Section 8.06 and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required under
Section 8.08.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(a) To
the
extent necessary to effectuate the purposes of this Section 8.10, all
rights, powers, duties and obligations conferred or imposed upon the Trustee,
except for the obligation of the Trustee (as successor Master Servicer) under
this Agreement to advance funds on behalf of the Master Servicer, shall be
conferred or imposed upon and exercised or performed by the Trustee and such
separate trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as
Trustee hereunder or as successor to the Master Servicer hereunder), the Trustee
shall be incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of title
to
the applicable Trust Fund or any portion thereof in any such jurisdiction)
shall
be exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(b) No
trustee hereunder shall be held personally liable because of any act or omission
of any other trustee hereunder and such appointment shall not, and shall not
be
deemed to, constitute any such separate trustee or co-trustee as agent of the
Trustee;
(c) The
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee; and
(d) The
Trust
Fund, and not the Trustee, shall be liable for the payment of reasonable
compensation, reimbursement and indemnification to any such separate trustee
or
co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee
or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating
to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to each Servicer, 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
8.11 Tax
Matters.
It is
intended that the assets with respect to which any REMIC election pertaining
to
the Trust Fund is to be made, as set forth in the Preliminary Statement, shall
constitute, and that the conduct of matters relating to such assets shall be
such as to qualify such assets as, a “real estate mortgage investment conduit”
as defined in and in accordance with the REMIC Provisions. In furtherance of
such intention, the Securities Administrator covenants and agrees that it shall
act as agent (and the Securities Administrator is hereby appointed to act as
agent) on behalf of each Trust REMIC described in the Preliminary Statement
and
that in such capacity it shall:
(a) prepare
(and, if required by applicable law, the Trustee shall sign) and file in a
timely manner, a U.S. Real Estate Mortgage Investment Conduit (REMIC) Income
Tax
Return (Form 1066 or any successor form adopted by the Internal Revenue
Service) and prepare and file with the Internal Revenue Service and applicable
state or local tax authorities income tax or information returns for each
taxable year with respect to each Trust REMIC described in the Preliminary
Statement containing such information and at the times and in the manner as
may
be required by the Code or state or local tax laws, regulations, or rules,
and
furnish to Certificateholders the schedules, statements or information at such
times and in such manner as may be required thereby;
(b) within
thirty days of the Closing Date, the Securities Administrator will apply for
an
employer identification number from the Internal Revenue Service via Form SS-4
or any other acceptable method for all tax entities and shall also furnish
to
the Internal Revenue Service, on Form 8811 or as otherwise may be required
by
the Code, the name, title, address, and telephone number of the person that
the
Holders of the Certificates may contact for tax information relating thereto,
together with such additional information as may be required by such Form,
and
update such information at the time or times in the manner required by the
Code;
(c) make
an
election that each 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 either Trust REMIC created
hereunder;
(h) pay,
from
the sources specified in the second to last paragraph of this Section 8.11,
the amount of any federal or state tax, including prohibited transaction taxes
as described below, imposed on either 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 either 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 either Trust REMIC, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating
to
any tax item of either Trust REMIC, and otherwise act on behalf of each Trust
REMIC in relation to any tax matter or controversy involving it.
The
Securities Administrator shall treat the rights of the Class P
Certificateholders to receive Prepayment Premiums, the rights of the
Class X Certificateholders to receive amounts from the Excess Reserve Fund
Account (subject to the obligation to pay Basis Risk Carry Forward Amounts)
and
the rights of the LIBOR Certificateholders and the Class M-5, Class B-1 and
Class B-2 Certificates to receive Basis Risk Carry Forward Amounts as the
beneficial ownership of interests in a grantor trust and not as obligations
of
either Trust REMIC created hereunder, for federal income tax
purposes.
To
enable
the Securities Administrator to perform its duties under this Agreement, the
Depositor shall provide to the Securities Administrator within ten days after
the Closing Date all information or data that the Securities Administrator
requests in writing and determines to be relevant for tax purposes to the
valuations and offering prices of the Certificates, including the price, yield,
prepayment assumption, and projected cash flows of the Certificates and the
Mortgage Loans. Moreover, the Depositor shall provide information to the
Securities Administrator concerning the value, if any, to each Class of LIBOR
Certificates and the Class M-5, Class B-1 and Class B-2 Certificates of the
right to receive Basis Risk Carry Forward Amounts from the Excess Reserve Fund
Account. Unless otherwise advised by the Depositor in writing, for federal
income tax purposes, the Securities Administrator is hereby directed to assign
a
value of zero to the right of each Holder of a LIBOR Certificate and a Class
M-5, Class B-1 or Class B-2 Certificates to receive the related Basis Risk
Carry
Forward Amount for purposes of allocating the purchase price of a LIBOR
Certificate and a Class M-5, Class B-1 and Class B-2 Certificates acquired
by an
initial Holder thereof between such right and the related REMIC II Regular
Certificate. 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 either Trust REMIC as defined in
Section 860F(a)(2) of the Code, on the “net income from foreclosure
property” of REMIC I as defined in Section 860G(c) of the Code, on any
contribution to either Trust REMIC after the Start-up Day pursuant to
Section 860G(d) of the Code, or any other tax is imposed, including, if
applicable, any minimum tax imposed on any Trust REMIC pursuant to
Sections 23153 and 24874 of the California Revenue and Taxation Code, if
not paid as otherwise provided for herein, the tax shall be paid by (i) the
Trustee, the Master Servicer or the Securities Administrator, respectively,
if
such tax arises out of or results from negligence of the Trustee, the Master
Servicer or the Securities Administrator, as applicable, in the performance
of
any of its obligations under this Agreement, (ii) the applicable Servicer,
if such tax arises out of or results from the negligence of such Servicer in
the
performance of any of its obligations under this Agreement, or (iii) in all
other cases, or if the Trustee, the Master Servicer, the Securities
Administrator or the applicable Servicer fails to honor its obligations under
the preceding clause (i) or (ii) any such tax will be paid with amounts
otherwise to be distributed to the Certificateholders, as provided in
Section 4.02(a).
For
as
long as each Trust REMIC shall exist, the Securities Administrator shall act
in
accordance with this Agreement and shall comply with any directions of the
Depositor or the applicable Servicer as provided herein so as to assure such
continuing treatment. The Trustee shall not sell or permit the sale of all
or
any portion of the Mortgage Loans unless pursuant to a repurchase in accordance
with this Agreement, and the Securities Administrator shall not (a) sell or
permit the sale of any asset unless in accordance with any investment of
deposits in an Account, or (b) accept any contribution to either Trust
REMIC after the Startup Day without, in each case, receipt of a REMIC
Opinion.
Section
8.12 Periodic
Filings. (a)
The
Securities Administrator, the Master Servicer, the Trustee (as a custodian)
and
each Servicer shall reasonably cooperate with the Depositor in connection with
the reporting requirements of the Trust under the Exchange Act. The Securities
Administrator shall prepare for execution by the Depositor any Form 8-K,
except the initial Form 8-K, any form 10-D and any Form 10-K required by the
Exchange Act and the rules and regulations of the Commission thereunder, in
order to permit the timely filing thereof pursuant to the terms of this Section
8.12, and the
Securities Administrator shall file (via the Commission’s Electronic Data
Gathering and Retrieval System) such Forms executed by the
Depositor.
The
Securities Administrator shall have no duty to verify information received
by it
from other Persons (other than Subcontractors utilized by the Securities
Administrator) in connection with its duties under this Section
8.12.
(b) Within
15
calendar days after each Distribution Date (subject to permitted extensions
under the Exchange Act), the Securities Administrator shall prepare and file
on
behalf of the Trust any Form 10-D required by the Exchange Act, in form and
substance as required by the Exchange Act. The Securities Administrator shall
file each Form 10-D with a copy of the related Monthly Statement attached
thereto. Any disclosure in addition to the Monthly Statement that is required
to
be included on Form 10-D (“Additional
Form 10-D Disclosure”)
shall
be prepared by the party responsible for preparing such disclosure as set forth
on Exhibit S hereto and the Securities Administrator shall compile such
disclosure pursuant to the following paragraph. The Securities Administrator
will have no duty or liability for any failure hereunder to determine or prepare
any Additional Form 10-D Disclosure, except as set forth in the next
paragraph.
As
set
forth on Exhibit S hereto, within 5 calendar days after the related
Distribution Date, certain parties to this Agreement shall be required to
provide to the Securities Administrator and the Depositor, to the extent
known
by such applicable parties, any Additional Form 10-D Disclosure, if
applicable. The Securities Administrator shall compile all such information
provided to it in a Form 10-D prepared by it. The Depositor shall be
responsible for any reasonable fees and expenses assessed or incurred by
the
Securities Administrator in connection with any Additional Form 10-D Disclosure
on Form 10-D pursuant to this Section 8.12(b).
After
preparing the Form 10-D, the Securities Administrator shall forward
electronically a draft copy of the Form 10-D to the Depositor for review,
verification and execution by the Depositor. No later than 3 Business Days
prior
to the 15th calendar day after the related Distribution Date, a
senior officer of the Depositor shall sign the Form 10-D and return an
electronic or fax copy of such signed Form 10-D (with an original executed
hard copy to follow by overnight mail) to the Securities Administrator. If
a
Form 10-D cannot be filed on time or if a previously filed Form 10-D
needs to be amended, the Securities Administrator will follow the procedures
set
forth in Section 8.12(f)(ii). The signing party at the Depositor can be
contacted at the Depositor’s address for notices set forth in Section
12.05(b)(2)(a), or such other address as to which the Depositor has provided
prior written notice to the Securities Administrator. The Depositor acknowledges
that the performance by the Securities Administrator of its duties under this
Section 8.12(b) related to the timely preparation and filing of
Form 10-D is contingent upon each Servicer, the Securities Administrator,
the Master Servicer, the Depositor, the Trustee (as a custodian) and any other
Person obligated to provide Additional Form 10-D Disclosure as set forth on
Exhibit S hereto observing all applicable deadlines in the performance of their
duties under this Section 8.12(b). The Securities Administrator shall have
no liability for any loss, expense, damage, or claim arising out of or with
respect to any failure to properly prepare and/or timely file such
Form 10-D, where such failure results from the Securities Administrator’s
inability or failure to obtain or receive, on a timely basis, any information
from any party hereto (other than the Securities Administrator or any
Subcontractor utilized by the Securities Administrator) needed to prepare,
arrange for execution or file such Form 10-D, not resulting from its own
negligence, bad faith or willful misconduct.
(c) Within
90 days after the end of each fiscal year of the Trust or such earlier date
as may be required by the Exchange Act (the “10-K
Filing Deadline”),
commencing in March 2007, the Securities Administrator shall prepare and
file on behalf of the Trust a Form 10-K, in form and substance as required
by the Exchange Act. Each such Form 10-K shall include the following items,
in each case to the extent they have been delivered to the Securities
Administrator within the applicable time frames set forth in this Agreement,
(i) an annual compliance statement for the applicable Servicer and each
Subservicer engaged by such Servicer, as described under Section 3.22,
(ii)(A) the annual reports on assessment of compliance with applicable servicing
criteria for the Securities Administrator, the Trustee (as a custodian), the
Master Servicer, the applicable Servicer, each Subservicer engaged by such
Servicer and each Servicing Function Participant utilized by such Servicer,
the
Master Servicer or the Securities Administrator, as described under
Section 3.23 and (B) if any such report on assessment of compliance
with servicing criteria described under Section 3.23 identifies any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or such report on assessment of compliance with servicing
criteria described under Section 3.23 is not included as an exhibit to such
Form 10-K, disclosure that such report is not included and an explanation
why such report is not included, (iii)(A) the registered public accounting
firm
attestation report for the Securities Administrator, the Master Servicer, the
applicable Servicer, the Trustee as a custodian (if the Trust is subject to
Exchange Act Reports for such fiscal year), each Subservicer engaged by such
Servicer and each Servicing Function Participant utilized by such Servicer,
the
Master Servicer or the Securities Administrator, as described under
Section 3.23, and (B) if any registered public accounting firm
attestation report described under Section 3.23 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that
such report is not included and an explanation why such report is not included,
and (iv) a certification in the form attached hereto as Exhibit M,
with such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission (the “Sarbanes
Certification”),
which
shall be signed by the senior officer of the Depositor in charge of
securitization. Any disclosure or information in addition to (i) through
(iv) above that is required to be included on Form 10-K (“Additional
Form 10-K Disclosure”)
shall
be prepared by the party responsible for preparing such disclosure as set forth
on Exhibit T hereto, and the Securities Administrator shall compile such
disclosure pursuant to the following paragraph. The Securities Administrator
will have no duty or liability for any failure hereunder to determine or prepare
any Additional Form 10-K Disclosure, except as set forth in the next
paragraph.
As
set
forth on Exhibit T hereto, no later than March 15th
of each
year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2007, certain parties to this Agreement shall be required to
provide to the Securities Administrator and the Depositor, to the extent
known
by such applicable parties, any Additional Form 10-K Disclosure, if
applicable. The Securities Administrator shall compile all such information
provided to it in a Form 10-K prepared by it. 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 8.12(c).
After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a draft copy of the Form 10-K to the Depositor for review,
verification and execution by the Depositor. No later than 5:00 p.m. EST on
the 3rd Business Day prior to the 10-K Filing Deadline, a senior officer of
the Depositor shall sign the Form 10-K and return an electronic or fax copy
of such signed Form 10-K (with an original executed hard copy to follow by
overnight mail) to the Securities Administrator. If a Form 10-K cannot be
filed on time or if a previously filed Form 10-K needs to be amended, the
Securities Administrator will follow the procedures set forth in
Section 8.12(f)(ii). The signing party at the Depositor can be contacted at
the Depositor’s address for notices set forth in Section 12.05(b)(2)(a), or such
other address as to which the Depositor has provided prior written notice to
the
Securities Administrator. The Depositor acknowledges that the performance by
the
Securities Administrator of its duties under this Section 8.12(c) related
to the timely preparation and filing of Form 10-K is contingent upon the
applicable Servicer (and any Subservicer or Servicing Function Participant
engaged by a Servicer) and the Depositor and any other Person obligated to
provide Additional Form 10-K Disclosure as set forth on Exhibit T hereto,
observing all applicable deadlines in the performance of their duties under
this
Section 8.12(c), Section 8.12(d), Section 3.22 and
Section 3.23. The Securities Administrator shall have no liability for any
loss, expense, damage or claim arising out of or with respect to any failure
to
properly prepare and/or timely file such Form 10-K, where such failure
results from the Securities Administrator’s inability or failure to obtain or
receive, on a timely basis, any information from any party hereto (other than
the Securities Administrator or any Subcontractor utilized by the Securities
Administrator) needed to prepare, arrange for execution or file such
Form 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
(d) In
connection with the execution of a Sarbanes Certification, the Securities
Administrator shall sign a certification (in the form attached hereto as Exhibit
N, with such changes as may be necessary or appropriate as a result of changes
promulgated by the Commission) for the benefit of the Depositor and its
officers, directors and Affiliates, the applicable Servicer shall sign a
certification solely with respect to such Servicer (in the form attached hereto
as Exhibit Q-1, with such changes as may be necessary as a result of changes
promulgated by the Commission) for the benefit of the Depositor, the Securities
Administrator and their respective officers, directors and Affiliates and the
applicable Subservicer shall sign a certification solely with respect to such
Subservicer (in the form attached hereto as Exhibit Q-2, with such changes
as
may be necessary or appropriate as a result of changes promulgated by the
Commission) for the benefit of the Depositor, the Securities Administrator
and
their respective officers, directors and Affiliates and the Master Servicer
shall sign a certification solely with respect to the Master Servicer (in the
form attached hereto as Exhibit Q-3, with such changes as may be necessary
as a
result of changes promulgated by the Commission) for the benefit of the
Depositor, the Securities Administrator and their respective officers, directors
and Affiliates. Each such certification shall be delivered to the Depositor
no
later than March 15th of each year (or if such day is not a Business Day, the
immediately preceding Business Day) and the Depositor shall deliver the Sarbanes
Certification no later than the time set forth for the delivery to the
Securities Administrator of the signed Form 10-K pursuant to Section 8.12(d)
for
such year. In the event that prior to the filing date of the Form 10-K in March
of each year, the Securities Administrator or the applicable Servicer has actual
knowledge of information material to the Sarbanes Certification, that party
shall promptly notify the Depositor and each of the other parties signing the
certifications. In addition, (i) the Securities Administrator shall indemnify
and hold harmless the Depositor, the Servicers and the Purchaser and their
officers, directors, employees, agents and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out
of or
based upon any breach of the Securities Administrator’s obligations under this
Section 8.12(c) or any material misstatement or material omission contained
in
any information, report, certification or other material provided in written
or
electronic form pursuant to Section 3.23 and 8.12 of this Agreement and Exhibits
S, T and U to this Agreement provided by or on behalf of the Securities
Administrator or any Subcontractor utilized by the Securities Administrator
(excluding any information, report, certification or other materials provided
in
written or electronic form by or on behalf of any Person other than the
Securities Administrator or any Subcontractor utilized by the Securities
Administrator) or negligence, bad faith or willful misconduct in connection
therewith, and (ii) each Servicer shall indemnify and hold harmless the
Depositor, the Purchaser, the Securities Administrator and their respective
officers, directors, employees, agents and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out
of or
based upon any breach of such Servicer’s obligations under this Section 8.12(c)
or any material misstatement, omission, negligence, bad faith or willful
misconduct of such Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless any
indemnified party, then (i) the Securities Administrator agrees in connection
with a breach of the Securities Administrator’s obligations under this Section
8.12(c) or any material misstatement or material omission contained in any
information, report, certification or other material provided in written or
electronic form pursuant to Section 3.23 and 8.12 of this Agreement and Exhibits
S, T and U to this Agreement provided by or on behalf of the Securities
Administrator or any Subcontractor utilized by the Securities Administrator
(excluding any information, report, certification or other materials provided
in
written or electronic form by or on behalf of any Person other than the
Securities Administrator or any Subcontractor utilized by the Securities
Administrator) or negligence, bad faith or willful misconduct in connection
therewith that it shall contribute to the amount paid or payable by the
Depositor and the Purchaser as a result of the losses, claims, damages or
liabilities of the Depositor and the Purchaser in such proportion as is
appropriate to reflect the relative fault of the Depositor and the Purchaser
on
the one hand and the Securities Administrator on the other and (ii) the
applicable Servicer agrees that it shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages
or
liabilities of such indemnified party in such proportion as is appropriate
to
reflect the relative fault of such indemnified party, on the one hand, and
such
Servicer, on the other hand, in connection with a breach of such Servicer’s
obligations under this Section 8.12(c) or any material misstatement or omission,
negligence, bad faith or willful misconduct of such Servicer in connection
therewith.
(e) Upon
any
filing with the Commission, the Securities Administrator shall promptly deliver
to the Depositor a copy of each such executed report, statement or
information.
(f) (i)The
obligations set forth in paragraphs (a) through (d) of this Section shall only
apply with respect to periods for which reports are required to be filed with
respect to the Trust under the Exchange Act. Prior to January 30 of the first
year in which the Securities Administrator is able to do so under applicable
law, the Securities Administrator shall file a Form 15 Suspension Notification
with respect to the Trust, with a copy to the Depositor. At any time after
the
filing of a Form 15 Suspension Notification, if the number of Holders of the
Offered Certificates of record exceeds the number set forth in Section 15(d)
of
the Exchange Act or the regulations promulgated pursuant thereto which would
cause the Trust to again become subject to the reporting requirements of the
Exchange Act, the Securities Administrator shall recommence preparing and filing
reports on Form 10-K, 10-D and 8-K as required pursuant to this Section 8.12
and
the parties hereto shall again have the obligations set forth in this
Section.
(ii) In
the
event that the Securities Administrator is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required
to
be filed pursuant to this Agreement because required disclosure information
was
either not delivered to it or delivered to it after the delivery deadlines
set
forth in this Agreement, the Securities Administrator will immediately notify
the Depositor and the Servicers. In the case of Form 10-D and 10-K, the
Depositor, the Servicers and the Securities Administrator will thereupon
cooperate to prepare a Form 12b-25 and a 10-DA and 10-KA as applicable, pursuant
to Rule 12b-25 of the Exchange Act and the Securities Administrator shall file
in accordance with this Agreement. In the case of Form 8-K, the Securities
Administrator will, upon receipt of all disclosure information required to
be
included on Form 8-K, include such disclosure information on the next Form
10-D.
In the event that any previously filed Form 8-K, 10-D or 10-K needs to be
amended, the party to this Agreement deciding that an amendment to such Form
8-K, 10-D or 10-K is required will notify the Depositor, the Securities
Administrator and the Servicers and such parties will cooperate to prepare
any
necessary Form 8-KA, 10-DA or 10-KA. Any Form 15, Form 12b-25 or any amendment
to Form 8-K, 10-D or 10-K shall be signed by an officer of the Depositor. The
Depositor acknowledges that the performance by the Securities Administrator
of
its duties under this Section 8.12(f) related to the timely preparation and
filing of Form 15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K
is
contingent upon the Servicers and the Depositor observing all applicable
deadlines in the performance of their duties under this Section 8.12 and
Sections 3.22 and 3.23. The Securities Administrator shall have no liability
for
any loss, expense, damage or claim arising out of or with respect to any failure
to properly prepare and/or timely file any such Form 15, Form 12b-25 or any
amendments to Forms 8-K, 10-D or 10-K, where such failure results from the
Securities Administrator’s inability or failure to obtain or receive, on a
timely basis, any information from any party hereto (other than the Securities
Administrator or any Subcontractor utilized by the Securities Administrator)
needed to prepare, arrange for execution or file such Form 15, Form 12b-25
or
any amendments to Forms 8-K, 10-D or 10-K, not resulting from its own
negligence, bad faith or willful misconduct.
(g) Within
four (4) Business Days after the occurrence of an event requiring
disclosure on Form 8-K (each such event, a “Reportable
Event”),
and
also if requested by the Depositor, the Securities Administrator shall prepare
and file on behalf of the Trust any Form 8-K, as required by the Exchange
Act, provided that the Depositor shall file the initial Form 8-K in
connection with the issuance of the Certificates. Any disclosure or information
related to a Reportable Event or that is otherwise required to be included
on
Form 8-K (“Form 8-K
Disclosure Information”)
shall
be prepared by the party responsible for preparing such disclosure as set forth
on Exhibit U hereto and compiled by the Securities Administrator pursuant to
the
following paragraph. The Securities Administrator will have no duty or liability
for any failure hereunder to determine or prepare any Form 8-K Disclosure
Information or any Form 8-K, except as set forth in the next
paragraph. 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 Section
8.12(g).
As
set
forth on Exhibit U hereto, for so long as the Trust is subject to the
Exchange Act reporting requirements, no later than the end of business on the
2nd Business Day after the occurrence of a Reportable Event, certain parties
to
this Agreement shall be required to provide to the Depositor and the Securities
Administrator, to the extent known by such applicable parties, any Form 8-K
Disclosure Information, if applicable. The Securities Administrator shall
compile all such information provided to it in a Form 8-K prepared by
it.
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,
verification and execution by the Depositor. No later than the end of the 3rd
Business Day after the Reportable Event, an officer of the Depositor shall
sign
the Form 8-K and return an electronic or fax copy of such signed
Form 8-K (with an original executed hard copy to follow by overnight mail)
to the Securities Administrator. If a Form 8-K cannot be filed on time or
if a previously filed Form 8-K needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 8.12(f)(ii).
The signing party at the Depositor can be contacted at the Depositor’s address
for notices set forth in Section 12.05(b)(2)(a), or such other address as to
which the Depositor has provided prior written notice to the Securities
Administrator. The Depositor acknowledges that the performance by the Securities
Administrator of its duties under this Section 8.12(g) related to the
timely preparation and filing of Form 8-K is contingent upon each Servicer
the Depositor and any other Person obligated to provide Form 8-K Disclosure
Information as set forth on Exhibit U hereto, observing all applicable deadlines
in the performance of their duties under this Section 8.12(g). The
Securities Administrator shall have no liability for any loss, expe