Exhibit 99.1
Execution Copy
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GSAA HOME EQUITY TRUST 2006-13
ASSET-BACKED CERTIFICATES
SERIES 2006-13
TRUST AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
Depositor,
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee,
DEUTSCHE BANK NATIONAL TRUST COMPANY,
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
and
U.S. BANK NATIONAL ASSOCIATION,
Custodians
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
Securities Administrator
Dated as of August 1, 2006
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 Definitions.................................................................................................9
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans...............................................................................37
Section 2.02 Acceptance by the Custodians of the Mortgage Loans.........................................................39
Section 2.03 Execution and Delivery of Certificates.....................................................................41
Section 2.04 REMIC Matters..............................................................................................41
Section 2.05 Representations and Warranties of the Depositor............................................................42
Section 2.06 Representations and Warranties of JPMorgan.................................................................43
Section 2.07 Representations and Warranties of Deutsche Bank............................................................44
Section 2.08 Representations and Warranties of U.S. Bank................................................................45
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Excess Reserve Fund Account; Distribution Account..........................................................45
Section 3.02 Investment of Funds in the Distribution Account............................................................47
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution.................................................................................48
Section 4.02 Monthly Statements to Certificateholders...................................................................54
Section 4.03 Allocation of Applied Realized Loss Amounts................................................................57
Section 4.04 Certain Matters Relating to the Determination of LIBOR.....................................................57
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates...........................................................................................58
i
Section 5.02 Certificate Register; Registration of Transfer and Exchange of Certificates................................58
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates..........................................................64
Section 5.04 Persons Deemed Owners......................................................................................64
Section 5.05 Access to List of Certificateholders' Names and Addresses..................................................64
Section 5.06 Maintenance of Office or Agency............................................................................65
ARTICLE VI
THE DEPOSITOR
Section 6.01 Liabilities of the Depositor...............................................................................65
Section 6.02 Merger or Consolidation of the Depositor...................................................................65
Section 6.03 Limitation on Liability of the Depositor and Others........................................................65
Section 6.04 Servicing Compliance Review................................................................................66
Section 6.05 Option to Purchase Defaulted Mortgage Loans................................................................66
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default..........................................................................................66
Section 7.02 Trustee to Act; Appointment of Successor...................................................................67
Section 7.03 Trustee to Act as Servicer.................................................................................68
Section 7.04 Notification to Certificateholders.........................................................................68
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIANS
Section 8.01 Duties of the Trustee and the Custodians...................................................................69
Section 8.02 Administration of the Servicer.............................................................................70
Section 8.03 Certain Matters Affecting the Trustee and the Custodians...................................................70
Section 8.04 Trustee and Custodians Not Liable for Certificates or Mortgage Loans.......................................71
Section 8.05 Trustee May Own Certificates...............................................................................72
Section 8.06 Trustee's Fees and Expenses................................................................................72
Section 8.07 Eligibility Requirements for the Trustee...................................................................73
Section 8.08 Resignation and Removal of the Trustee.....................................................................73
Section 8.09 Successor Trustee..........................................................................................74
Section 8.10 Merger or Consolidation of the Trustee or the Custodians...................................................74
Section 8.11 Appointment of Co-Trustee or Separate Trustee..............................................................75
Section 8.12 Tax Matters................................................................................................76
Section 8.13 [Reserved].................................................................................................79
Section 8.14 Tax Classification of the Excess Reserve Fund Account and the Interest Rate Corridor Agreement.............79
Section 8.15 Custodial Responsibilities.................................................................................80
ii
ARTICLE IX
CONCERNING THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of the Securities Administrator.....................................................................81
Section 9.02 Certain Matters Affecting the Securities Administrator.....................................................82
Section 9.03 Securities Administrator Not Liable for Certificates or Mortgage Loans.....................................84
Section 9.04 Securities Administrator May Own Certificates..............................................................84
Section 9.05 Securities Administrator's Fees and Expenses...............................................................84
Section 9.06 Eligibility Requirements for the Securities Administrator..................................................85
Section 9.07 Resignation and Removal of the Securities Administrator....................................................86
Section 9.08 Successor Securities Administrator.........................................................................87
Section 9.09 Merger or Consolidation of the Securities Administrator....................................................87
Section 9.10 Assignment or Delegation of Duties by the Securities Administrator.........................................88
ARTICLE X
TERMINATION
Section 10.01 Termination upon Liquidation or Purchase of the Mortgage Loans............................................88
Section 10.02 Final Distribution on the Certificates....................................................................89
Section 10.03 Additional Termination Requirements.......................................................................90
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.................................................................................................91
Section 11.02 Recordation of Agreement; Counterparts....................................................................93
Section 11.03 Governing Law.............................................................................................93
Section 11.04 Intention of Parties......................................................................................93
Section 11.05 Notices...................................................................................................94
Section 11.06 Severability of Provisions................................................................................95
Section 11.07 Limitation on Rights of Certificateholders................................................................95
Section 11.08 Certificates Nonassessable and Fully Paid.................................................................96
Section 11.09 Waiver of Jury Trial......................................................................................96
ARTICLE XII
EXCHANGE ACT REPORTING
Section 12.01 Filing Obligations........................................................................................96
Section 12.02 Form 8-K Filings..........................................................................................97
Section 12.03 Form 10-D Filings.........................................................................................98
Section 12.04 Form 10-K Filings........................................................................................100
Section 12.05 Form 15 Filing...........................................................................................102
iii
Section 12.06 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.............................................................................102
Section 12.07 Report on Assessment of Compliance and Attestation.......................................................102
iv
SCHEDULES
Schedule I Mortgage Loan Schedule
EXHIBITS
Exhibit A Form of Class A, Class M and Class B Certificates
Exhibit B Form of Class P Certificates
Exhibit C Form of Class R, Class RC and Class RX Certificates
Exhibit D Form of Class X Certificate
Exhibit E Form of Initial Certification of Custodian
Exhibit F Form of Document Certification and Exception Report of
Custodian
Exhibit G Form of Residual Transfer Affidavit
Exhibit H Form of Transferor Certificate
Exhibit I Form of Rule 144A Letter
Exhibit J Form of Back-up Certification (Securities Administrator)
Exhibit K Form of Servicing Criteria to be Addressed in Assessment
of Compliance Statement
Exhibit L-1 Form of Request for Release of Documents (U.S. Bank
National Association)
Exhibit L-2 Form of Request for Release of Documents (Deutsche Bank
National Trust Company)
Exhibit L-3 Form of Request for Release of Documents (JPMorgan Chase
Bank, National Association)
Exhibit M Form 8-K Disclosure Information
Exhibit N Additional Form 10-D Disclosure
Exhibit O Additional Form 10-K Disclosure
Exhibit P Form of Master Loan Purchase Agreement, between various
sellers and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company
Exhibit Q Servicing Agreement, dated as of June 30, 2006, between
▇▇▇▇▇ Fargo Bank, National Association and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Company
Exhibit R Limited Power of Attorney
v
THIS TRUST AGREEMENT, dated as of August 1, 2006 (this
"Agreement"), is hereby executed by and among GS MORTGAGE SECURITIES CORP., a
Delaware corporation (the "Depositor"), DEUTSCHE BANK NATIONAL TRUST COMPANY
("Deutsche Bank"), as trustee (in such capacity, the "Trustee") and as a
custodian, U.S. BANK NATIONAL ASSOCIATION ("U.S. Bank"), as a custodian,
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION ("JPMorgan"), as a custodian
(Deutsche Bank, JPMorgan and U.S. Bank, each a "Custodian" and together the
"Custodians"), and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as securities
administrator (in such capacity, the "Securities Administrator").
W I T N E S S E T H:
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The Securities Administrator on behalf of the Trust shall elect
that three segregated asset pools within the Trust Fund be treated for federal
income tax purposes as comprising three REMICs (each, a "Trust REMIC" or, in
the alternative, the "Lower-Tier REMIC", the "Upper-Tier REMIC" and the "Class
X REMIC", respectively). The Class X Interest and each Class of Principal
Certificates (other than the right of each Class of Principal Certificates to
receive Basis Risk Carry Forward Amounts), represents ownership of a regular
interest in the Upper-Tier REMIC for purposes of the REMIC Provisions. The
Class R Certificates represent ownership of the sole class of residual
interest in the Upper-Tier REMIC, the Class RC Certificates represent
ownership of the sole class of residual interest in the Lower-Tier REMIC and
the Class RX Certificates represent ownership of the sole class of residual
interest in the Class X REMIC for purposes of the REMIC Provisions. The
Startup Day for each REMIC described herein is the Closing Date. The latest
possible maturity date for each Certificate is the latest date referenced in
Section 2.04. The Class X REMIC shall hold as assets the Class X Interest as
set out below. The Upper-Tier REMIC shall hold as assets the several classes
of uncertificated Lower-Tier Regular Interests, set out below. The Lower-Tier
REMIC shall hold as assets the assets described in the definition of "Trust
Fund" herein (other than the Prepayment Premiums, the Interest Rate Corridor
Agreement and the Excess Reserve Fund Account). Each Lower-Tier Regular
Interest is hereby designated as a regular interest in the Lower-Tier REMIC.
The Class LT-AV-1, Class LT-AF-2, Class LT-AF-3, Class LT-AF-4, Class LT-AF-5,
Class LT-AF-6, Class LT-M-1, Class LT-M-2, Class LT-M-3, Class LT-M-4, Class
LT-M-5, Class LT-B-1, Class LT-B-2 and Class LT-B-3 Interests are hereby
designated the LT-Accretion Directed Classes (the "LT Accretion Directed
Classes"). The Class P Certificates represent beneficial ownership of the
Prepayment Premiums, each Class of Certificates (excluding the Class P, Class
X and the Residual Certificates) represents beneficial ownership of a regular
interest in the Upper-Tier REMIC and the right to receive Basis Risk Carry
Forward Amounts and the Class X Certificates represent beneficial ownership of
a regular interest in the Class X REMIC and the Excess Reserve Fund Account,
which portions of the Trust Fund shall be treated as a grantor trust.
2
The Lower-Tier REMIC
Lower-Tier Interest Lower-Tier Corresponding
Designation Interest Rate Initial Lower-Tier Principal Amount Upper-Tier REMIC Class
-------------------------- ------------------- ---------------------------------------------------- ---------------------------
Class LT-AV-1 (1) 1/2 initial Class Certificate Balance of AV-1
Corresponding Upper-Tier REMIC Regular Interest
Class LT-AF-2 (1) 1/2 initial Class Certificate Balance of AF-2
Corresponding Upper-Tier REMIC Regular Interest
Class LT-AF-3 (1) 1/2 initial Class Certificate Balance of AF-3
Corresponding Upper-Tier REMIC Regular Interest
Class LT-AF-4 (1) 1/2 initial Class Certificate Balance of AF-4
Corresponding Upper-Tier REMIC Regular Interest
Class LT-AF-5 (1) 1/2 initial Class Certificate Balance of AF-5
Corresponding Upper-Tier REMIC Regular Interest
Class LT-AF-6 (1) 1/2 initial Class Certificate Balance of AF-6
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-1 (1) 1/2 initial Class Certificate Balance of M-1
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-2 (1) 1/2 initial Class Certificate Balance of M-2
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-3 (1) 1/2 initial Class Certificate Balance of M-3
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-4 (1) 1/2 initial Class Certificate Balance of M-4
Corresponding Upper-Tier REMIC Regular Interest
Class LT-M-5 (1) 1/2 initial Class Certificate Balance of M-5
Corresponding Upper-Tier REMIC Regular Interest
Class LT-B-1 (1) 1/2 initial Class Certificate Balance of B-1
Corresponding Upper-Tier REMIC Regular Interest
Class LT-B-2 (1) 1/2 initial Class Certificate Balance of B-2
Corresponding Upper-Tier REMIC Regular Interest
Class LT-B-3 (1) 1/2 initial Class Certificate Balance of B-3
Corresponding Upper-Tier REMIC Regular Interest
2
Lower-Tier Interest Lower-Tier Corresponding
Designation Interest Rate Initial Lower-Tier Principal Amount Upper-Tier REMIC Class
-------------------------- ------------------- ---------------------------------------------------- ---------------------------
Class LT-Accrual (1) 1/2 Pool Stated Principal Balance plus 1/2
Overcollateralized Amount
--------------------------------
(1) The interest rate with respect to any Distribution Date for these interests is a per annum variable rate equal to the WAC
Cap.
The Lower-Tier REMIC shall hold as assets all of the Lower-Tier
REMIC Regular Interests.
On each Distribution Date, 50% of the increase in the
Overcollateralized Amount will be payable as a reduction of the Lower-Tier
Principal Amount of the LT-Accretion Directed Classes (each such Class will be
reduced by an amount equal to 50% of any increase in the Overcollateralized
Amount that is attributable to a reduction in the Class Certificate Balance of
its Corresponding Class) and will be accrued and added to the Lower-Tier
Principal Amount of the Class LT-Accrual Interest. On each Distribution Date,
the increase in the Lower-Tier Principal Amount of the Class LT-Accrual
Interest may not exceed interest accruals for such Distribution Date for the
Class LT-Accrual Interest. In the event that: (i) 50% of the increase in the
Overcollateralized Amount exceeds (ii) interest accruals on the Class
LT-Accrual Interest for such Distribution Date, the excess for such
Distribution Date (accumulated with all such excesses for all prior
Distribution Dates) will be added to any increase in the Overcollateralized
Amount for purposes of determining the amount of interest accrual on the Class
LT-Accrual Interest payable as principal on the LT-Accretion Directed Classes
on the next Distribution Date pursuant to the first sentence of this
paragraph. All payments of scheduled principal and prepayments of principal
generated by the Mortgage Loans shall be allocated (i) 50% to the Class
LT-Accrual Interest and (ii) 50% to the LT-Accretion Directed Classes
(principal payments shall be allocated among such LT-Accretion Directed
Classes in an amount equal to 50% of the principal amounts allocated to their
respective Corresponding Classes), until paid in full. Notwithstanding the
above, principal payments allocated to the Class X Interest that result in the
reduction in the Overcollateralized Amount shall be allocated to the Class
LT-Accrual Interest (until paid in full). Realized Losses shall be applied so
that after all distributions have been made on each Distribution Date (i) the
Lower-Tier Principal Amount of each of the LT-Accretion Directed Classes is
equal to 50% of the Class Certificate Balance of its Corresponding Class, and
(ii) the Class LT-Accrual Interest is equal to 50% of the aggregate Stated
Principal Balance of the Mortgage Loans plus 50% of the Overcollateralized
Amount.
In addition to issuing the Lower-Tier Regular Interests, the
Lower-Tier REMIC shall issue the Class LT-R Interest which shall be the sole
class of residual interests in the Lower-Tier REMIC. The Class RC Certificates
will represent ownership of the Class LT-R Interest and will be issued as a
single certificate in definitive form in a principal amount of $100 and shall
have no interest rate. Amounts received by the Class LT-R Interest shall be
deemed paid from the Lower-Tier REMIC.
3
The Upper-Tier REMIC
The Upper-Tier REMIC shall issue the following classes of
Upper-Tier Regular Interests, and each such interest, other than the Class
UT-R Interest, is hereby designated as a regular interest in the Upper-Tier
REMIC.
Upper-Tier Interest Initial Upper-Tier
Rate and Principal Amount
Upper-Tier Corresponding and Corresponding Class Corresponding Class of
Class Designation Class Pass-Through Rate Certificate Balance Certificates
Class AV-1 (1) $ 181,651,000 Class AV-1(16)
Class AF-2 (2) $ 34,050,000 Class AF-2(16)
Class AF-3 (3) $ 78,527,000 Class AF-3(16)
Class AF-4 (4) $ 61,500,000 Class AF-4(16)
Class AF-5 (5) $ 60,721,000 Class AF-5(16)
Class AF-6 (6) $ 46,272,000 Class AF-6(16)
Class M-1 (7) $ 7,439,000 Class M-1(16)
Class M-2 (8) $ 3,720,000 Class M-2(16)
Class M-3 (9) $ 2,976,000 Class M-3(16)
Class M-4 (10) $ 2,480,000 Class M-4(16)
Class M-5 (11) $ 3,223,000 Class M-5(16)
Class B-1 (12) $ 2,480,000 Class B-1(16)
Class B-2 (13) $ 2,976,000 Class B-2(16)
Class B-3 (14) $ 2,480,000 Class B-3(16)
Class X (15) (15) Class X(15)
(1) The Class AV-1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (i) LIBOR plus
0.06000% and (ii) the WAC Cap.
(2) The Class AF-2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (i) 5.79063% and (ii)
the WAC Cap.
(3) The Class AF-3 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to the lesser of (i) 6.04015% and (ii)
the WAC Cap.
(4) The Class AF-4 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible Optional Termination Date, the lesser of (i) 6.11880% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date,
the lesser of (i) 6.61880% and (ii) the WAC Cap.
(5) The Class AF-5 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible Optional Termination Date, the lesser of (i) 6.41055% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date,
the lesser of (i) 6.91055% and (ii) the WAC Cap.
4
(6) The Class AF-6 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible Optional Termination Date, the lesser of (i) 6.03979% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date,
the lesser of (i) 6.53979% and (ii) the WAC Cap.
(7) The Class M-1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible Optional Termination Date, the lesser of (i) 6.23201% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date,
the lesser of (i) 6.73201% and (ii) the WAC Cap.
(8) The Class M-2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible Optional Termination Date, the lesser of (i) 6.28154% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date,
the lesser of (i) 6.78154% and (ii) the WAC Cap.
(9) The Class M-3 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible Optional Termination Date, the lesser of (i) 6.33107% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date,
the lesser of (i) 6.83107% and (ii) the WAC Cap.
(10) The Class M-4 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible Optional Termination Date, the lesser of (i) 6.38058% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date,
the lesser of (i) 6.88058% and (ii) the WAC Cap.
(11) The Class M-5 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible Optional Termination Date, the lesser of (i) 6.47960% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date,
the lesser of (i) 6.97960% and (ii) the WAC Cap.
(12) The Class B-1 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible Optional Termination Date, the lesser of (i) 6.6200% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date,
the lesser of (i) 7.1200% and (ii) the WAC Cap.
(13) The Class B-2 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible Optional Termination Date, the lesser of (i) 6.6200% and (ii)
the WAC Cap or (b) after the first possible Optional Termination Date,
the lesser of (i) 7.1200% and (ii) the WAC Cap.
(14) The Class B-3 Interest will bear interest during each Interest Accrual
Period at a per annum rate equal to (a) on or prior to the first
possible Optional Termination Date, the lesser of (i) LIBOR plus
2.00000% and (ii) the WAC Cap or (b) after the first possible Optional
Termination Date, the lesser of (i) LIBOR plus 2.00000% and (ii) the WAC
Cap.
(15) The Class X Interest will have a principal balance to the extent of any
Overcollateralized Amount. The Class X Interest will not accrue interest
on such balance but will accrue interest on a notional principal
balance. As of any Distribution Date, the Class X Interest
5
shall have a notional principal balance equal to the aggregate of the
principal balances of the Lower-Tier Regular Interests as of the first
day of the related Interest Accrual Period. With respect to any Interest
Accrual Period, the Class X Interest shall bear interest at a rate equal
to the excess, if any, of the WAC Cap over the product of (i) 2 and (ii)
the weighted average Lower-Tier Interest Rate of the Lower-Tier Regular
Interests, where the Lower-Tier Interest Rates on the Class LT-Accrual
Interest is subject to a cap equal to zero and each LT-Accretion
Directed Class is subject to a cap equal to the Pass-Through Rate on its
Corresponding Class. With respect to any Distribution Date, interest
that so accrues on the notional principal balance of the Class X
Interest shall be deferred in an amount equal to any increase in the
Overcollateralized Amount on such Distribution Date. Such deferred
interest shall not itself bear interest. The Class X Certificates will
represent beneficial ownership of a regular interest issued by the Class
X REMIC and amounts in the Excess Reserve Fund Account, subject to the
obligation to make payments from the Excess Reserve Fund Account in
respect of Basis Risk Carry Forward Amounts. For federal income tax
purposes, the Securities Administrator will treat the Class X
Certificateholders' obligation to make payments from the Excess Reserve
Fund Account as payments made pursuant to an interest rate cap contract
written by the Class X Certificateholders in favor of each Class of
Principal Certificates. Such rights of the Class X Certificateholders
and Principal Certificateholders shall be treated as held in a portion
of the Trust Fund that is treated as a grantor trust under subpart E,
Part I of subchapter J of the Code.
(16) Each of these Certificates will represent not only the ownership of the
Corresponding Class of Upper-Tier Regular Interest but also the right to
receive payments from the Excess Reserve Fund Account in respect of any
Basis Risk Carry Forward Amounts. For federal income tax purposes, the
Securities Administrator will treat a Certificateholder's right to
receive payments from the Excess Reserve Fund Account as payments made
pursuant to an interest rate cap contract written by the Class X
Certificateholders.
In addition to issuing the Upper-Tier Regular Interests, the
Upper-Tier REMIC shall issue the Class R Certificates, which shall be the sole
class of residual interests in the Upper-Tier REMIC. The Class R Certificates
will be issued as a single certificate in definitive form in a principal
amount of $100 and shall have no interest rate. Amounts received by the Class
R Certificates shall be deemed paid from the Upper-Tier REMIC.
6
Class X REMIC
-------------
The Class X REMIC shall issue the following classes of interests.
The Class X Certificates shall represent a regular interest in the Class X
REMIC and the Class RX Certificates shall represent the sole class of residual
interest in the Class X REMIC.
Class X REMIC
Class X REMIC Designation Interest Rate Principal Amount
-------------------------- ------------- ----------------
Class X Certificates (1) (1)
Class RX Certificates (2) (2)
-----------------
(1) The Class X Certificates are entitled to 100% of the interest and
principal on the Class X Interest on each Distribution Date.
(2) The Class RX Certificates do not have an interest rate or principal
amount.
The foregoing REMIC structure is intended to cause all of the cash
from the Mortgage Loans to flow through to the Upper-Tier REMIC and the Class
X REMIC as cash flow on a REMIC regular interest, without creating any actual
or potential shortfall (other than for credit losses) to any Trust REMIC
regular interest. It is not intended that the Class R, Class RC or Class RX
Certificates be entitled to any cash flow pursuant to this Agreement except as
provided in Section 4.01(a)(ii)(A)(1) hereunder.
For any purpose for which the Pass-Through Rates are calculated,
the interest rate on the Mortgage Loans shall be appropriately adjusted to
account for the difference between the monthly day count convention of the
Mortgage Loans and the monthly day count convention of the regular interests
issued by each of the REMICs. For purposes of calculating the Pass-Through
Rates for each of the interests issued by the Lower-Tier REMIC such rates
shall be adjusted to equal a monthly day count convention based on a 30 day
month for each Due Period and a 360-day year so that the Mortgage Loans and
all regular interests will be using the same monthly day count convention.
The minimum denomination for each Class of the Offered
Certificates will be $50,000 initial Certificate Balance, with integral
multiples of $1 in excess thereof except that one Certificate in each Class
may be issued in a different amount. The minimum denomination for (a) the
Class R and Class RC Certificates will each be $100 and each will be a 100%
Percentage Interest in such Class, (b) the Class RX Certificates will be a
100% Percentage Interest in such Class and (c) the Class P and Class X
Certificates will be a 1% Percentage Interest in each such Class.
7
Set forth below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates.............. All Classes of Certificates other
than the Physical Certificates.
Class A Certificates................. The Class AV-1, Class AF-2, Class
AF-3, Class AF-4, Class AF-5 and
Class AF-6 Certificates,
collectively.
Class B Certificates................. The Class B-1, Class B-2 and Class
B-3 Certificates, collectively.
Class M Certificates................. The Class M-1, Class M-2, Class M-3,
Class M-4 and Class M-5 Certificates,
collectively.
Residual Certificates................ The Class R, Class RC and Class RX
Certificates.
ERISA Restricted The Private Certificates, the Physical
Certificates......................... Certificates and any Certificate with a
rating below the lowest applicable
permitted rating under the
Underwriters' Exemption.
Fixed Rate Certificates.............. The Class A Certificates (other than
the Class AV-1 Certificates), the
Class M Certificates and the Class B
Certificates (other than the Class
B-3 Certificates).
LIBOR Certificates................... The Class AV-1 Certificates and the
Class B-3 Certificates.
Offered Certificates................. All Classes of Certificates other
than the Private Certificates.
Private Certificates................. The Class B-3, Class P and Class X
Certificates.
Physical Certificates................ The Class R, Class RC, Class RX,
Class P and Class X Certificates.
Principal Certificates............... The Fixed Rate Certificates and LIBOR
Certificates.
Rating Agencies...................... ▇▇▇▇▇'▇ and S&P.
Regular Certificates................. All Classes of Certificates other
than the Residual Certificates.
Subordinated Certificates............ The Class M and Class B Certificates.
8
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein but not
defined herein shall have the meanings given them in the Servicing Agreement
or the related Sale Agreement. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
10-K Filing Deadline: As defined in Section 12.04.
60+ Day Delinquent Mortgage Loan: Each Mortgage Loan with respect
to which any portion of a Monthly Payment is, as of the last day of the prior
Due Period, two 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 as reported by the
Servicer to the Securities Administrator.
Account: The Distribution Account or the Excess Reserve Fund
Account. Each such Account shall be a separate Eligible Account.
Accrued Certificate Interest Distribution Amount: With respect to
any Distribution Date for each Class of Principal Certificates, the amount of
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the related Class Certificate Balance immediately prior
to such Distribution Date, as reduced by such Class's share of Net Prepayment
Interest Shortfalls and Relief Act Interest Shortfalls for the related Due
Period allocated to such Class pursuant to Section 4.01.
Additional Form 10-D Disclosure: As defined in Section 12.03.
Additional Form 10-K Disclosure: As defined in Section 12.04.
Additional Servicer: Each affiliate of each servicer that services
any of the Mortgage Loans and each Person who is not an affiliate of the any
servicer, who services 10% or more of the Mortgage Loans. For clarification
purposes, the Securities Administrator is an Additional Servicer.
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 Monthly Advance or Servicing Advance.
Affiliate: With respect to any Person, any other Person
controlling, controlled by or under common control with such first Person. For
the purposes of this definition, "control" 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 Trust Agreement and all amendments or supplements
hereto.
9
Applied Realized Loss Amount: With respect to any Distribution
Date, the amount, if any, by which the aggregate Class Certificate Balance of
the Principal Certificates after distributions of principal on such
Distribution Date exceeds the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date.
Assignment Agreement: The Step 1 Assignment Agreement or the Step
2 Assignment Agreement.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form (other than the
assignee's name and recording information not yet returned from the recording
office), reflecting the sale of the Mortgage to the Trustee.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans to the extent received by the Securities Administrator on
behalf of the Trustee (x) the sum of (without duplication) (i) all scheduled
installments of interest (net of the related Expense Fees) and principal due
on the Due Date on such Mortgage Loans in the related Due Period and received
on or prior to the related Determination Date, together with any Monthly
Advances in respect thereof; (ii) all Condemnation Proceeds, Insurance
Proceeds and Liquidation Proceeds received during the related Principal
Prepayment Period (in each case, net of unreimbursed expenses incurred in
connection with a liquidation or foreclosure and unreimbursed Advances, if
any); (iii) all partial or full prepayments (excluding Prepayment Premiums) on
the Mortgage Loans received during the related Principal Prepayment Period
together with all Compensating Interest paid in connection therewith; (iv) all
amounts received with respect to such Distribution Date in connection with a
purchase or repurchase of a Deleted Mortgage Loan; (v) all amounts received
with respect to such Distribution Date as a Substitution Adjustment Amount
received in connection with the substitution of a Mortgage Loan; and (vi) all
proceeds received with respect to the termination of the Trust Fund pursuant
to clause (a) of Section 10.01; reduced by (y) all amounts in reimbursement
for Monthly Advances and Servicing Advances previously made with respect to
the Mortgage Loans, and other amounts as to which the Servicer, the Depositor,
the Securities Administrator, the Trustee (or co-trustee) or the Custodians
are entitled to be paid or reimbursed pursuant to this Agreement or the
Servicing Agreement.
Back-Up Certification: As defined in Section 12.06.
Basic Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the aggregate Principal Remittance Amount
for such Distribution Date over (ii) the Excess Overcollateralized Amount, if
any, for such Distribution Date.
Basis Risk Carry Forward Amount: With respect to each Class of
Principal Certificates, as of any Distribution Date, the sum of (A) if on such
Distribution Date the Pass-Through Rate for any Class of Principal
Certificates is based upon the WAC Cap, the excess, if any, of (i) the amount
of interest such Class of Certificates would otherwise be entitled to receive
on such Distribution Date had such Pass-Through Rate not been subject to the
WAC Cap, over (ii) the amount of interest that Class of Certificates received
on such Distribution Date taking into account the WAC Cap and (B) the Basis
Risk Carry Forward Amount for such Class of Certificates for all previous
Distribution Dates not previously paid, together with interest thereon
10
at a rate equal to the applicable Pass-Through Rate for such Class of
Certificates for such Distribution Date, without giving effect to the WAC
Cap).
Basis Risk Payment: For any Distribution Date, an amount equal to
the lesser of (i) the aggregate of the Basis Risk Carry Forward Amounts for
such Distribution Date and (ii) the Class X Distributable Amount (prior to any
reduction for Basis Risk Payments).
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, Minnesota, Maryland or California, (b) with respect to the Servicer,
the State in which the Servicer's servicing operations are located, or (c) the
State in which the Trustee's operations are located, are authorized or
obligated by law or executive order to be closed.
Certificate: Any one of the Certificates executed by the
Securities Administrator in substantially the forms attached hereto as
exhibits.
Certificate Balance: With respect to any Class of Principal
Certificates, at any date, the maximum dollar amount of principal to which the
Holder thereof is then entitled hereunder, such amount being equal to the
Denomination thereof minus all distributions of principal previously made with
respect thereto and in the case of any Subordinated Certificates, reduced by
any Applied Realized Loss Amounts applicable to such Class of Subordinated
Certificates; provided, however, that immediately following the Distribution
Date on which a Subsequent Recovery is distributed, the Class Certificate
Balances of any Class or Classes of Certificates that have been previously
reduced by Applied Realized Loss Amounts will be increased, in order of
seniority, by the amount of the Subsequent Recovery distributed on such
Distribution Date (up to the amount of Applied Realized Loss Amounts allocated
to such Class or Classes). The Class X and Class P Certificates have no
Certificate Balance.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate.
Certificate Register: The register maintained pursuant to Section
5.02.
Certificateholder or Holder: The person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purpose of giving any consent pursuant to this Agreement, any Certificate
registered in the name of the Depositor or any affiliate of the Depositor
shall be deemed not to be Outstanding and the Percentage Interest evidenced
thereby shall not be taken into account in determining whether the requisite
amount of Percentage Interests necessary to effect such consent has been
obtained; provided, however, that if any such Person (including the Depositor)
owns 100% of the Percentage Interests evidenced by a Class of Certificates,
such Certificates shall be deemed to be Outstanding for purposes of any
provision hereof that requires the consent of the Holders of Certificates of a
particular Class as a condition to the taking of any action hereunder. The
Securities Administrator is entitled to rely conclusively on a certification
of the Depositor or any affiliate of the Depositor in determining which
Certificates are registered in the name of an affiliate of the Depositor.
11
Certification Parties As defined in Section 12.06.
Certifying Person: As defined in Section 12.06.
Class: All Certificates bearing the same class designation as set
forth in this Agreement.
Class A Certificates: As specified in the Preliminary Statement.
Class A 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) 86.60% 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 AF-2 Certificates: All Certificates bearing the class
designation of "Class AF-2."
Class AF-3 Certificates: All Certificates bearing the class
designation of "Class AF-3."
Class AF-4 Certificates: All Certificates bearing the class
designation of "Class AF-4."
Class AF-5 Certificates: All Certificates bearing the class
designation of "Class AF-5."
Class AF-6 Certificates: All Certificates bearing the class
designation of "Class AF-6."
Class AF-6 Calculation Percentage: With respect to any
Distribution Date, the fraction, expressed as a percentage, the numerator of
which is the Class Certificate Balance of the Class AF-6 Certificates and the
denominator of which is the aggregate Class Certificate Balance of all of the
Class A Certificates, in each case before giving effect to distribution of
principal on that Distribution Date.
Class AF-6 Lockout Distribution Amount. With respect to any
Distribution Date, an amount equal to the product of (i) the applicable Class
AF-6 Calculation Percentage for that Distribution Date, (ii) the Class AF-6
Lockout Percentage for that Distribution Date and (iii) the Class A Principal
Distribution Amount for that Distribution Date. In no event shall the Class
AF-6 Lockout Distribution Amount exceed the lesser of the outstanding Class
Certificate Balance of the Class AF-6 Certificates or the Class A Principal
Distribution Amount for the applicable Distribution Date.
12
Class AF-6 Lockout Percentage. For any Distribution Date, the
following:
Class AF-6
Distribution Lockout
Date (Months) Percentage
1 to 36 0%
37 to 60 45%
61 to 72 80%
73 to 84 100%
85 and thereafter 300%
Class AV-1 Certificates: All Certificates bearing the class
designation of "Class AV-1."
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) and (G) 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) 95.60% and (y) the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date, and (B) the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over the Overcollateralization Floor.
Class 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
13
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 B-1
Certificates (after taking into account the distribution of the Class B-1
Principal Distribution Amount on such Distribution Date) and (H) the Class
Certificate Balance of the Class B-2 Certificates immediately prior to that
Distribution Date over (ii) the lesser of (A) the product of (x) 96.80% and
(y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class B-3 Certificates: All Certificates bearing the class
designation of "Class B-3."
Class B-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the
Class M-2 Principal Distribution Amount on such Distribution Date), (D) the
Class Certificate Balance of the Class M-3 Certificates (after taking into
account the distribution of the Class M-3 Principal Distribution Amount on
such Distribution Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the Class M-4
Principal Distribution Amount on such Distribution Date), (F) the Class
Certificate Balance of the Class M-5 Certificates (after taking into account
the distribution of the Class M-5 Principal Distribution Amount on such
Distribution Date), (G) the Class Certificate Balance of the Class B-1
Certificates (after taking into account the distribution of the Class B-1
Principal Distribution Amount on such Distribution Date), (H) the Class
Certificate Balance of the Class B-2 Certificates (after taking into account
the distribution of the Class B-2 Principal Distribution Amount on such
Distribution Date) and (I) the Class Certificate Balance of the Class B-3
Certificates immediately prior to that Distribution Date over (ii) the lesser
of (A) the product of 97.80% and (y) the aggregate Stated Principal Balance of
the Mortgage Loans for such Distribution Date and (B) the excess, if any, of
the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date over the Overcollateralization Floor.
Class 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: As specified in the Preliminary Statement.
14
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) 89.60% and (y) the aggregate Stated Principal Balance of the
Mortgage Loans for such Distribution Date and (B) the excess, if any, of the
aggregate Stated Principal Balance of the Mortgage Loans for such Distribution
Date over the Overcollateralization Floor.
Class M-2 Certificates: All Certificates bearing the class
designation of "Class M-2."
Class M-2 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date) and (C) the Class Certificate Balance of the
Class M-2 Certificates immediately prior to such Distribution Date over (ii)
the lesser of (A) the product of (x) 91.10% and (y) the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date and (B) the
excess, if any, of the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date over the Overcollateralization Floor.
Class M-3 Certificates: All Certificates bearing the class
designation of "Class M-3."
Class M-3 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the
Class M-2 Principal Distribution Amount on such Distribution Date) and (D) the
Class Certificate Balance of the Class M-3 Certificates immediately prior to
such Distribution Date over (ii) the lesser of (A) the product of (x) 92.30%
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
15
Certificates (after taking into account the distribution of the Class A
Principal Distribution Amount on such Distribution Date), (B) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account
the distribution of the Class M-1 Principal Distribution Amount on such
Distribution Date), (C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the distribution of the Class M-2
Principal Distribution Amount on such Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into account
the distribution of the Class M-3 Principal Distribution Amount on such
Distribution Date) and (E) the Class Certificate Balance of the Class M-4
Certificates immediately prior to such Distribution Date over (ii) the lesser
of (A) the product of (x) 93.30% and (y) the aggregate Stated Principal
Balance of the Mortgage Loans for such Distribution Date and (B) the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage Loans for
such Distribution Date over the Overcollateralization Floor.
Class M-5 Certificates: All Certificates bearing the class
designation of "Class M-5."
Class M-5 Principal Distribution Amount: With respect to any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account the
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the distribution of the Class M-1 Principal Distribution
Amount on such Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account the distribution of the
Class M-2 Principal Distribution Amount on such Distribution Date), (D) the
Class Certificate Balance of the Class M-3 Certificates (after taking into
account the distribution of the Class M-3 Principal Distribution Amount on
such Distribution Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account the distribution of the Class M-4
Principal Distribution Amount on such Distribution Date) and (F) the Class
Certificate Balance of the Class M-5 Certificates immediately prior to such
Distribution Date over (ii) the lesser of (A) the product of (x) 94.60% and
(y) the aggregate Stated Principal Balance of the Mortgage Loans for such
Distribution Date and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date over the
Overcollateralization Floor.
Class P Certificates: All Certificates bearing the class
designation of "Class P."
Class R Certificates: All Certificates bearing the class
designation of "Class R."
Class RC Certificates: All Certificates bearing the class
designation of "Class RC."
Class RX Certificates: All Certificates bearing the class
designation of "Class RX."
Class X Certificates: All Certificates bearing the class
designation of "Class X."
Class X Distributable Amount: On any Distribution Date, (i) as a
distribution in respect of interest, the amount of interest that has accrued
on the Class X Interest and not applied as an Extra Principal Distribution
Amount on such Distribution Date, plus any such accrued
16
interest remaining undistributed from prior Distribution Dates, plus, without
duplication, (ii) as a distribution in respect of principal, any portion of
the principal balance of the Class X Interest which is distributable as an
Overcollateralization Reduction Amount, minus (iii) any amounts paid as a
Basis Risk Payment.
Class X Interest: The Upper-Tier Regular Interest as specified and
described in the Preliminary Statement and the related footnote thereto.
Class X REMIC: As defined in the Preliminary Statement. Closing
Date: August 25, 2006.
Code: The Internal Revenue Code of 1986, including any successor
or amendatory provisions.
Commission: The U.S. Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, the lesser of
(a) the Prepayment Interest Shortfall, if any, for the Distribution Date, with
respect to voluntary Principal Prepayments in full or in part by the Mortgagor
(excluding any payments made upon liquidation of the Mortgage Loan), and (b)
the aggregate Servicing Fee received for the related 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.
Corporate Trust Office: With respect to the Securities
Administrator, to the principal office of the Securities Administrator at ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and its office for certificate
transfer services located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services, GSAA Home Equity Trust
2006-13, or at such other address as the Securities Administrator may
designate from time to time by notice to the Certificateholders. With respect
to the Trustee, to the principal office of the Trustee at ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Trust Administration -
GS0613, or at such other address as the Trustee may designate from time to
time by notice to the Certificateholders.
Corresponding Class: The Class of interests in one Trust REMIC
created under this Agreement that corresponds to the Class of interests in the
other Trust REMIC or to a Class of Certificates in the manner set out below:
Lower-Tier Upper-Tier Corresponding
Regular Interest Regular Interest Class of Certificates
---------------- ---------------- ---------------------
Class LT-AV-1 Class AV-1 Class AV-1
Class LT-AF-2 Class AF-2 Class AF-2
Class LT-AF-3 Class AF-3 Class AF-3
Class LT-AF-4 Class AF-4 Class AF-4
17
Class LT-AF-5 Class AF-5 Class AF-5
Class LT-AF-6 Class AF-6 Class AF-6
Class LT-M-1 Class M-1 Class M-1
Class LT-M-2 Class M-2 Class M-2
Class LT-M-3 Class M-3 Class M-3
Class LT-M-4 Class M-4 Class M-4
Class LT-M-5 Class M-5 Class M-5
Class LT-B-1 Class B-1 Class B-1
Class LT-B-2 Class B-2 Class B-2
Class LT-B-3 Class B-3 Class B-3
Corridor Provider: ▇▇▇▇▇▇▇ Sachs Capital Markets, L.P., a Delaware
limited partnership, and its successors in interest.
Custodial Account: The separate account or accounts created and
maintained by the Servicer pursuant to the Servicing Agreement.
Custodial File: With respect to each Mortgage Loan, any Mortgage
Loan Document which is delivered to the applicable Custodian or which at any
time comes into the possession of that Custodian.
Custodians: Deutsche Bank, JPMorgan and U.S. Bank.
Cut-off Date: August 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).
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Deleted Mortgage Loan: A Mortgage Loan which is purchased or
repurchased by the Purchaser or the Depositor in accordance with the terms of
any Sale Agreement, any Assignment Agreement or this Agreement, as applicable,
or which is, in the case of a substitution by the Purchaser pursuant to the
Assignment Agreements or this Agreement, replaced or to be replaced with a
Substitute Mortgage Loan.
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.
18
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform Commercial Code
of the State of New York.
Depository Institution: Any depository institution or trust
company, including the Trustee and the Securities Administrator, that (a) is
incorporated under the laws of the United States of America or any State
thereof, (b) is subject to supervision and examination by federal or state
banking authorities and (c) has outstanding unsecured commercial paper or
other short-term unsecured debt obligations that are rated "P-1" by Moody's
and "A-1" by Standard & Poor's.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to each Distribution Date, the
Business Day immediately preceding the Remittance Date.
Deutsche Bank: Deutsche Bank National Trust Company, a national
banking association, and its successors in interest.
Distribution Account: The separate Eligible Account created by the
Securities Administrator pursuant to Section 3.01(b) in the name of the
Securities Administrator as paying agent for the benefit of the Trustee and
the Certificateholders and designated "▇▇▇▇▇ Fargo Bank, National Association,
as paying agent, in trust for registered holders of GSAA Home Equity Trust
2006-13, Asset-Backed Certificates, Series 2006-13." Funds in the Distribution
Account shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement.
Distribution Date: The 25th day of each month or, if such day is
not a Business Day, the immediately succeeding Business Day, commencing in
September 2006.
Document Certification and Exception Report: The report attached
to Exhibit F hereto.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Distribution Date, the period
commencing on the second day of the calendar month preceding the month in
which that Distribution Date occurs and ending on the first day of the
calendar month in which that Distribution Date occurs.
▇▇▇▇▇: The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
Eligible Account: Either (i) an account maintained with a federal
or state chartered depository institution or trust company the short-term
unsecured debt obligations of
19
which (or, in the case of a depository institution or trust company that is a
subsidiary of a holding company, the short-term unsecured debt obligations of
such holding company) are rated "A-1+" by Standard & Poor's, "F1" by Fitch and
"P-1" by Moody's (or a comparable rating if another Rating Agency is specified
by the Depositor by written notice to the Servicer) at the time any amounts
are held on deposit therein, (ii) a trust account or accounts maintained with
a federal or state chartered depository institution or trust company acting in
its fiduciary capacity or (iii) any other account acceptable to each Rating
Agency. Eligible Accounts may bear interest, and may include, if otherwise
qualified under this definition, accounts maintained with the Securities
Administrator or the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of Prohibited
Transaction Exemption ("PTE") 2002-41, 67 Fed. Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Event of Default: As defined in the Servicing Agreement.
Excess Overcollateralized Amount: With respect to any Distribution
Date, the excess, if any, of (a) the Overcollateralized Amount on such
Distribution Date over (b) the Specified Overcollateralized Amount for such
Distribution Date.
Excess Reserve Fund Account: The separate Eligible Account created
and maintained by the Securities Administrator pursuant to Sections 3.01(a) in
the name of the Securities Administrator as paying agent for the benefit of
the Regular Certificateholders and designated "▇▇▇▇▇ Fargo Bank, National
Association, as paying agent, in trust for registered holders of GSAA Home
Equity Trust 2006-13, Asset-Backed Certificates, Series 2006-13." Funds in the
Excess Reserve Fund Account shall be held in trust for the Regular
Certificateholders for the uses and purposes set forth in this Agreement.
Amounts on deposit in the Excess Reserve Fund Account shall not be invested.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
Exchange Act Filing Obligation: The obligations of the Securities
Administrator under Section 9.04 and Article XII (except Section 12.07) with
respect to notice and information to be provided to the Depositor.
Exchange Act Reports: Any reports on Form 10-D, Form 8-K and Form
10-K required to be filed by the Depositor with respect to the Trust Fund
under the Exchange Act.
Expense Fee Rate: As to each Mortgage Loan, a per annum rate equal
to the sum of the Servicing Fee Rate and, if set forth on the Mortgage Loan
Schedule, the applicable Primary Mortgage Insurance Policy premium rate.
20
Expense Fees: As to each Mortgage Loan, the fees calculated by
reference to the Expense Fee Rate.
Extra Principal Distribution Amount: As of any Distribution Date,
the lesser of (x) the related Total Monthly Excess Spread for that
Distribution Date and (y) the related Overcollateralization Deficiency for
such Distribution Date.
Fair Market Value Excess: As defined in Section 10.01.
▇▇▇▇▇▇ ▇▇▇: The Federal National Mortgage Association, and its
successors in interest.
Final Scheduled Distribution Date: The Final Scheduled
Distribution Date for each Class of Certificates is the Distribution Date
occurring in July 2036.
Fitch: Fitch, Inc.
Fixed Rate Certificates: As specified in the Preliminary
Statement.
Form 8-K Disclosure Information: As defined in Section 12.02.
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation, a
corporate instrumentality of the United States created and existing under
Title III of the Emergency Home Finance Act of 1970, as amended, and its
successors in interest.
Goldman Conduit: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Residential Mortgage Conduit
Program.
Goldman Conduit Mortgage Loans: The Mortgage Loans acquired by the
Purchaser pursuant to the applicable Sale Agreements.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds
of insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Interest Accrual Period: With respect to any Distribution Date,
(i) with respect to the LIBOR Certificates, the period commencing on the
immediately preceding Distribution Date (or commencing on the Closing Date in
the case of the first Distribution Date) and ending on the day immediately
preceding the current Distribution Date and (ii) with respect to the Fixed
Rate Certificates, the calendar month immediately preceding the month in which
such Distribution Date occurs. For purposes of computing interest accruals on
each Class of LIBOR Certificates, each Interest Accrual Period has the actual
number of days in such period and each year is assumed to have 360 days. For
purposes of computing interest accruals on the Fixed Rate 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 Date,
that portion of Available Funds attributable to interest relating to the
Mortgage Loans.
21
Interest Rate Corridor Agreement: The interest rate corridor
agreement, dated August 10, 2006, between the Corridor Provider and the Trust,
for the benefit of the Class B-3 Certificates.
Interest Rate Corridor Payment: For the first twenty-four (24)
Distribution Dates, the amount, if any, as calculated by the Corridor Provider
and reported to the Securities Administrator, equal to the product of (a) the
excess, if any, of one-month LIBOR (as determined pursuant to the Interest
Rate Corridor Agreement) as of the related reset date over a cap strike rate
set forth on the interest rate corridor agreement schedule attached to the
Interest Rate Corridor Agreement, up to 8.00% per annum, (b) $2,488,000 and
(c) the actual number of days in the applicable Interest Accrual Period
divided by 360.
Investment Account: As defined in Section 3.02(a).
Item 1119 Party: The Depositor, the Trustee, the Servicer, any
subservicer, any originator identified in the Prospectus Supplement.
JPMorgan: JPMorgan Chase Bank, National Association, a national
banking association, and its successors in interest.
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. The
establishment of LIBOR by the Securities Administrator and the Securities
Administrator's subsequent calculations based thereon, in the absence of
manifest error, shall be final and binding. Except as otherwise set forth
herein, absent manifest error, the Securities Administrator may conclusively
rely on quotations of LIBOR as such quotations appear on Telerate Screen Page
3750.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period for the LIBOR Certificates, the second London Business Day preceding
the commencement of such Interest Accrual Period.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) which was liquidated in
the Principal Prepayment
22
Period preceding the month of such Distribution Date and as to which the
Servicer has certified that it has received all amounts it expects to receive
in connection with the liquidation of such Mortgage Loan including the final
disposition of an REO Property.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale or
otherwise, or the sale of the related Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan, including any
Subsequent Recoveries.
London Business Day: Any day on which dealings in deposits of
United States dollars are transacted in the London interbank market.
Lower-Tier Principal Amount: As described in the Preliminary
Statement.
Lower-Tier Regular Interest: As described in the Preliminary
Statement.
Lower-Tier REMIC: As described in the Preliminary Statement.
Majority Class X Certificateholder: The Holder or Holders of a
majority of the Percentage Interests in the Class X Certificates.
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
MERS Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
Monthly Advance: As defined in the Servicing Agreement.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Monthly Statement: The statement made available to the
Certificateholders pursuant to Section 4.02.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. If ▇▇▇▇▇'▇ is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
11.05(b) the address for notices to Moody's shall be ▇▇▇▇▇'▇ Investors
Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Residential Mortgage Pass-Through Group, or such other address as Moody's may
hereafter furnish to the Depositor, the Securities Administrator and the
Trustee.
Mortgage: The mortgage, deed of trust or other instrument
identified on the Mortgage Loan Schedule as securing a Mortgage Note.
23
Mortgage File: The items pertaining to a particular Mortgage Loan
contained in either the Servicing File or Custodial File.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of
a Sale Agreement and the Servicing Agreement, each Mortgage Loan originally
sold and subject to any Sale Agreement being identified on the Mortgage Loan
Schedule, which Mortgage Loan includes without limitation the Mortgage File,
the Servicing File, the Monthly Payments, Principal Prepayments, Prepayment
Premiums, Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO
Disposition proceeds and all other rights, benefits, proceeds and obligations
arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: The mortgage loan documents pertaining to
each Mortgage Loan.
Mortgage Loan Schedule: A schedule of Mortgage Loans annexed
hereto as Schedule I (which shall be delivered to the Custodians in an
electronic format acceptable to the Custodians), such schedule setting forth
the following information with respect to each Mortgage Loan: (1) Responsible
Party's Mortgage Loan number; (2) the address, city, state and zip code of the
Mortgaged Property; (3) a code indicating whether the Mortgagor is
self-employed; (4) a code indicating whether the Mortgaged Property is
owner-occupied, investment property or a second home; (5) a code indicating
whether the Mortgaged Property is a single family residence, two family
residence, three-family residence, four family residence, condominium,
manufactured housing or planned unit development; (6) the purpose of the
Mortgage Loan; (7) the type of Mortgage Loan; (8) the Mortgage Interest Rate
at origination; (9) the current Mortgage Interest Rate; (10) the name of the
Servicer; (11) the applicable Servicing Fee Rate; (12) the current Monthly
Payment; (13) the original term to maturity; (14) the remaining term to
maturity; (15) the principal balance of the Mortgage Loan as of the Cut-off
Date after deduction of payments of principal due on or before the Cut-off
Date whether or not collected; (16) the LTV at origination and if the Mortgage
Loan has a second lien, combined LTV at origination; (17) the actual principal
balance of the Mortgage Loan as of the Cut-off Date; (18) social security
number of the Mortgagor; (19) a code indicating whether the Mortgage Loan had
a second lien at origination; (20) if the Mortgage Loan has a second lien,
combined loan balance as of the Cut-off Date; (21) a code indicating whether
the Mortgaged Property is a leasehold estate; (22) the due date of the
Mortgage Loan; (23) whether the Mortgage Loan is insured by a Primary Mortgage
Insurance Policy and the name of the insurer; (24) the certificate number of
the Primary Mortgage Insurance Policy; (25) the amount of coverage of the
Primary Mortgage Insurance Policy, and if it is a lender-paid Primary Mortgage
Insurance Policy, the premium rate; (26) the type of appraisal; (27) a code
indicating whether the Mortgage Loan is a MERS Loan; (28) documentation type
(including asset and income type); (29) first payment date; (30) the schedule
of the payment delinquencies in the prior 12 months; (31) FICO score; (32) the
Mortgagor's name; (33) the stated maturity date; (34) the original principal
amount of the Mortgage Loan and (35) the name of the applicable Custodian.
24
Mortgaged Property: The real property (or leasehold estate, if
applicable) identified on the Mortgage Loan Schedule as securing repayment of
the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Net Monthly Excess Cash Flow: For any Distribution Date the amount
remaining for distribution pursuant to subsection 4.01(a)(iii) (before giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date, the
amount by which the sum of the Prepayment Interest Shortfalls exceeds the sum
of the Compensating Interest payments made on such Distribution Date.
NIM Issuer: The entity established as the issuer of the NIM
Securities.
NIM Securities: Any debt securities secured or otherwise backed by
some or all of the Class P and Class X Certificates.
NIM Trustee: The trustee for the NIM Securities.
Non Permitted Transferee: As defined in Section 8.12(e).
Nonrecoverable Monthly Advance: Any Monthly Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property
that, in the good faith business judgment of the Servicer (in accordance with
the Servicing Standard set forth in the Servicing Agreement) or any successor
Servicer including the Trustee, as applicable, will not or, in the case of a
proposed Monthly Advance, would not be ultimately recoverable from related
late payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds on such Mortgage Loan or REO Property as provided herein.
Nonrecoverable Servicing Advance: Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property,
which, in the good faith business judgment of the Servicer (in accordance with
the Servicing Standard set forth in the Servicing Agreement) or any successor
Servicer including the Trustee, as applicable, will not or, in the case of a
proposed Servicing Advance, would not, be ultimately recoverable from related
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant
to Section 10.02 to the effect that final distribution on any of the
Certificates shall be made only upon presentation and surrender thereof.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President
or an Assistant Vice President and by the Treasurer or the Secretary or one of
the Assistant Treasurers or Assistant Secretaries of the Servicer or the
Responsible Party, and delivered to the Trustee and the Securities
25
Administrator, as required by the Servicing Agreement or any Sale Agreement
or, in the case of any other Person, signed by an authorized officer of such
Person.
Opinion of Counsel: A written opinion of counsel, who may be in
house counsel for the Servicer, reasonably acceptable to the Trustee and/or
the Securities Administrator, as applicable (and/or such other Persons as may
be set forth herein); provided, that any Opinion of Counsel relating to (a)
qualification of any Trust REMIC or (b) compliance with the REMIC Provisions,
must be (unless otherwise stated in such Opinion of Counsel) an opinion of
counsel who (i) is in fact independent of the Servicer of the Mortgage Loans,
(ii) does not have any material direct or indirect financial interest in the
Servicer of the Mortgage Loans or in an affiliate of the Servicer and (iii) is
not connected with the Servicer of the Mortgage Loans as an officer, employee,
director or person performing similar functions.
Optional Termination Date: The Distribution Date on which the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day
of the related Due Period, is equal to 10.00% or less of the Cut-off Date Pool
Principal Balance.
Outstanding: With respect to the Certificates as of any date of
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Securities
Administrator or delivered to the Securities Administrator for
cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Securities
Administrator pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan
with a Stated Principal Balance greater than zero which was not the subject of
a Principal Prepayment in Full prior to such Due Date and which did not become
a Liquidated Mortgage Loan prior to such Due Date.
Overcollateralized Amount: As of any Distribution Date, the
excess, if any, of (a) the aggregate Stated Principal Balance of the Mortgage
Loans for such Distribution Date over (b) the aggregate of the Class
Certificate Balances of the Principal 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.
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.
26
Ownership Interest: As to any Residual Certificate, any ownership
interest in such Certificate including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect,
legal or beneficial.
Par Value: means an amount equal to the greater of (a) the sum of
(1) 100% of the unpaid principal balance of the Mortgage Loans (other than
Mortgage Loans related to REO Properties), (2) interest accrued and unpaid on
the Mortgage Loans, (3) any ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances, fees and expenses of
the Securities Administrator and the Trustee and (4) with respect to any REO
Property, the lesser of (x) the appraised value of each REO Property, as
determined by the higher of two appraisals completed by two independent
appraisers selected by the Servicer or its designee, and (y) the unpaid
principal balance of each Mortgage Loan related to any REO Property, and (b)
the sum of (1) the aggregate unpaid Class Certificate Balance of each class of
certificates then outstanding, (2) interest accrued and unpaid on the
certificates and (3) any ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances, fees and expenses of the
Servicer, the Securities Administrator and the Trustee.
Pass-Through Rate: For each Class of Certificates and each
Lower-Tier Regular Interest, the per annum rate set forth or calculated in the
manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made on the related
Class, such percentage interest being set forth on the face thereof or equal
to the percentage obtained by dividing the Denomination of such Certificate by
the aggregate of the Denominations of all Certificates of the same Class.
Permitted Investments: Any one or more of the following
obligations or securities acquired at a purchase price of not greater than
par, regardless of whether issued by the Servicer, the Trustee, the Securities
Administrator or any of their respective Affiliates:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are backed
by the full faith and credit of the United States;
(ii) demand and time deposits in, certificates of deposit of, or
bankers' acceptances (which shall each have an original maturity of not
more than ninety (90) days and, in the case of bankers' acceptances,
shall in no event have an original maturity of more than 365 days or a
remaining maturity of more than thirty (30) days) denominated in United
States dollars and issued by any Depository Institution and rated F1+ by
Fitch, P-1 by Moody's and A-1+ by S&P;
(iii) repurchase obligations with respect to any security
described in clause (i) above entered into with a Depository Institution
(acting as principal);
(iv) securities bearing interest or sold at a discount that are
issued by any corporation incorporated under the laws of the United
States of America or any state thereof and that are rated by each Rating
Agency that rates such securities in its highest long-term unsecured
rating categories at the time of such investment or contractual
commitment providing for such investment;
27
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than thirty (30) days after the date of
acquisition thereof) that is rated by each Rating Agency that rates such
securities in its highest short-term unsecured debt rating available at
the time of such investment;
(vi) units of money market funds, including money market funds
advised by the Depositor, the Securities Administrator or the Trustee or
an Affiliate thereof, that have been rated "Aaa" by Moody's, "AAAm" or
"AAAm-G" by Standard & Poor's and, if rated by Fitch, at least "AA" by
Fitch; and
(vii) if previously confirmed in writing to the Securities
Administrator, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to the
Rating Agencies as a permitted investment of funds backing "Aaa" or
"AAA" rated securities;
provided, however, that no instrument described hereunder shall evidence
either the right to receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest payments derived
from obligations underlying such instrument and the interest and principal
payments with respect to such instrument provide a yield to maturity at par
greater than 120% of the yield to maturity at par of the underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States,
any State or political subdivision thereof, or any agency or instrumentality
of any of the foregoing, (ii) a foreign government, international organization
or any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Section 521 of
the Code) which is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by Section 511 of the Code on unrelated business taxable
income) on any excess inclusions (as defined in Section 860E(c)(1) of the
Code) with respect to any Residual Certificate, (iv) rural electric and
telephone cooperatives described in Section 1381(a)(2)(C) of the Code, (v) a
Person that is not a U.S. Person or a U.S. Person with respect to whom income
from a Residual Certificate is attributable to a foreign permanent
establishment or fixed base (within the meaning of an applicable income tax
treaty) of such Person or any other U.S. Person, (vi) an "electing large
partnership" within the meaning of Section 775 of the Code and (vii) any other
Person so designated by the Depositor based upon an Opinion of Counsel that
the Transfer of an Ownership Interest in a Residual Certificate to such Person
may cause any Trust REMIC to fail to qualify as a REMIC at any time that the
Certificates are outstanding. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and,
with the exception of ▇▇▇▇▇▇▇ 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.
28
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 related Principal
Prepayment Period the subject of a Principal Prepayment that was applied by
the Servicer to reduce the outstanding principal balance of such Mortgage Loan
on a date preceding the Due Date in the succeeding Principal Prepayment
Period, an amount equal to the product of (a) the Mortgage Interest Rate net
of the applicable Servicing Fee Rate for such Mortgage Loan, (b) the amount of
the Principal Prepayment for such Mortgage Loan, (c) 1/360 and (d) the number
of days commencing on the date on which such Principal Prepayment was applied
and ending on the last day of the related Principal Prepayment Period.
Prepayment Premium: Any prepayment premium, penalty or charge, if
any, required under the terms of the related Mortgage Note to be paid in
connection with a Principal Prepayment, to the extent permitted by law.
Principal Certificates: As specified in the Preliminary Statement.
Principal Distribution Amount: For any Distribution Date, the sum
of (i) the Basic Principal Distribution Amount for such Distribution Date and
(ii) the Extra Principal Distribution Amount for such Distribution Date.
Principal Prepayment: Any full or partial payment or other
recovery of principal on a Mortgage Loan (including upon liquidation of a
Mortgage Loan) which is received in advance of its scheduled Due Date,
including any Prepayment Premium, and which is not accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment made by a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Prepayment Period: With respect to any Distribution
Date, the 14th day of the calendar month preceding the month in which that
Distribution Date occurs (or, in the case of the first Distribution Date, the
Cut-off Date) to the 13th day of the month in which the Distribution Date
occurs.
Principal Remittance Amount: With respect to any Distribution Date
and the Mortgage Loans, the amount equal to the sum of the following amounts
(without duplication): (i) all scheduled payments of principal due on the Due
Date on such Mortgage Loans in the related Due Period and received on or prior
to the related Determination Date, together with any Monthly Advances in
respect thereof; (ii) all Condemnation Proceeds, Insurance Proceeds and
Liquidation Proceeds allocable to principal and received during the related
Principal Prepayment Period; (iii) all Principal Prepayments allocable to
principal and received during the related Principal Prepayment Period; (iv)
all amounts received with respect to such Distribution Date
29
representing the portion of the purchase price allocable to principal in
connection with a purchase or repurchase of a Deleted Mortgage Loan; (v)
principal portion of all amounts received with respect to such Distribution
Date as a Substitution Adjustment Amount and received in connection with the
substitution of a Mortgage Loan and (vi) the allocable portion of the proceeds
received with respect to the termination of the Trust Fund pursuant to clause
(a) of Section 10.01 (to the extent such proceeds relate to principal).
Private Certificates: As specified in the Preliminary Statement.
Prospectus Supplement: The Prospectus Supplement, dated August 23,
2006, relating to the Offered Certificates.
PTCE: Prohibited Transaction Class Exemption, issued by the U.S.
Department of Labor.
PUD: A planned unit development.
Purchaser: ▇▇▇▇▇▇▇ Sachs Mortgage Company, a New York limited
partnership, and its successors in interest, as purchaser of the Mortgage
Loans under the various Sale 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 11.05(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 and the Trustee.
Realized Losses: With respect to any date of determination and any
Liquidated Mortgage Loan, the amount, if any, by which (a) the unpaid
principal balance of such Liquidated Mortgage Loan together with accrued and
unpaid interest thereon exceeds (b) the Liquidation Proceeds with respect
thereto net of the expenses incurred by the Servicer in connection with the
liquidation of such Liquidated Mortgage Loan and net of any amount of
unreimbursed Servicing Advances with respect to such Liquidated Mortgage Loan.
Record Date: With respect to any Distribution Date, the close of
business on the last Business Day of the related Interest Accrual Period;
provided, however, that for any Definitive Certificate issued pursuant to
Section 5.02(e), the Record Date shall be the close of business on the last
Business Day of the month immediately preceding the month in which the related
Distribution Date occurs.
Reference Bank: As defined in Section 4.04.
Regular Certificates: As specified in the Preliminary Statement.
30
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Relief Act Interest Shortfall: With respect to any Distribution
Date and any Mortgage Loan, any reduction in the amount of interest
collectible on such Mortgage Loan for the most recently ended Due Period as a
result of the application of the Servicemembers' Civil Relief Act of 1940 or
any similar state statutes.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be in
effect from time to time as well as provisions of applicable state laws.
Remittance Advice Date: The 10th day of each calendar month or the
immediately following Business Day if the 10th is not a Business Day.
Remittance Date: With respect to any Distribution Date, the 18th
day (or if such 18th day is not a Business Day, the first Business Day
immediately preceding such 18th day) of the month in which such Distribution
Date occurs.
REO Disposition: The final sale by the Servicer of any REO
Property.
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 12.02.
Reporting Party: The Depositor, any Originator, the Servicer, any
originator identified in the Prospectus Supplement, any corridor contract
counterparty, any credit enhancement provider described herein and any other
material transaction party (excluding the Trustee and the Custodians) as may
be mutually agreed between the Depositor and the Trustee from time to time for
the purpose of complying with the requirements of the Commission.
Reporting Servicer: As defined in Section 12.04.
Reporting Subcontractor: With respect to the Securities
Administrator, any Subcontractor determined by such Person to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB. References to a Reporting Subcontractor shall refer only to the
Subcontractor of such Person and shall not refer to Subcontractors generally.
31
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Securities
Administrator, any vice president, any assistant vice president, any assistant
secretary, any assistant treasurer, any associate or any other officer of 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. When used with respect to the Trustee, any officer of the
Trustee having direct responsibility for the administration of this
transaction, or to whom corporate trust matters are referred because of that
officer's knowledge of and familiarity with the particular subject.
Responsible Party: The Purchaser.
Rule 144A: Rule 144A under the Securities Act.
Rule 144A Letter: As defined in Section 5.02(b).
Sale Agreement: Any of the several Master Loan Purchase Agreements
(including any related commitment letter or purchaser price and terms letter
referenced therein), entered into between each mortgage loan seller
participating in the Goldman Conduit and the Purchaser, dated as of their
respective dates.
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification: As defined in Section 12.06.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: ▇▇▇▇▇ Fargo, and if a successor
securities administrator is appointed hereunder, such successor.
Securities Administrator Float Period: With respect to the
Distribution Date and the related amounts in the Distribution Account, the
period commencing on the Business Day immediately preceding such Distribution
Date and ending on such Distribution Date.
Senior Enhancement Percentage: With respect to any Distribution
Date, the percentage obtained by dividing (x) the sum of (i) the aggregate
Class Certificate Balance of the Subordinated Certificates and (ii) the
Overcollateralized Amount (in each case after taking into account the
distributions of the Principal Distribution Amount for such Distribution Date)
by (y) the aggregate Stated Principal Balance of the Mortgage Loans as of the
first day of the month in which such Distribution Date occurs.
Servicer Float Period: With respect to the Distribution Date and
the related amounts in the Distribution Account, the period commencing on the
related Remittance Date and ending on the Business Day immediately preceding
the related Distribution Date.
Servicer Remittance Report: As defined in Section 4.02 (d).
32
Senior Specified Enhancement Percentage: As of any date of
determination, 13.40%.
Servicer: ▇▇▇▇▇ Fargo in its capacity as servicer under the
Servicing Agreement, or any successor servicer appointed pursuant to the
Servicing Agreement.
Servicing Advances: As defined in the Servicing Agreement.
Servicing Agreement: The Servicing Agreement, dated as of June 30,
2006, between ▇▇▇▇▇ Fargo and the Purchaser, as modified by the Assignment
Agreements.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as the same may be amended from time to time.
Servicing Fee: As defined in the Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, the per
annum rate for such Mortgage Loan specified on the Mortgage Loan Schedule.
Servicing File: As defined in the Servicing Agreement.
Servicing Function Participant: Any Subservicer, Subcontractor or
any other Person, other than the Servicer, the Trustee, the Securities
Administrator and any Custodian, that is performing activities addressed by
the Servicing Criteria.
Similar Law: As defined in Section 5.02(b).
Specified Overcollateralized Amount: Prior to the Stepdown Date,
an amount equal to 1.10% of the Cut-off Date Pool Principal Balance. On and
after the Stepdown Date, an amount equal to 2.20% of the aggregate Stated
Principal Balance of the Mortgage Loans for such Distribution Date, subject,
until the Class Certificate Balance of each Class of Principal Certificates
has been reduced to zero, to a minimum amount equal to the
Overcollateralization Floor; provided, however, that if, on any Distribution
Date, a Trigger Event has occurred, the Specified Overcollateralized Amount
shall not be reduced to the applicable percentage of the then current
aggregate Stated Principal Balance of the Mortgage Loans but instead will
remain the same as the prior period's Specified Overcollateralized Amount
until the Distribution Date on which a Trigger Event is no longer occurring.
When the Class Certificate Balance of each Class of Principal Certificates has
been reduced to zero, the Specified Overcollateralized Amount will thereafter
be zero.
Standard & Poor's or S&P: Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. If Standard & Poor's is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
11.05(b) the address for notices to Standard & Poor's shall be Standard &
Poor's, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential
Mortgage Surveillance Group - GSAA Home Equity Trust 2006-13, or such other
address as Standard & Poor's may hereafter furnish to the Depositor, the
Securities Administrator and the Trustee.
33
Startup Day: The Closing Date.
Stated Principal Balance: As to each Mortgage Loan and as of any
Determination Date, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before
such date (whether or not received), minus (ii) all amounts previously
remitted to the Securities Administrator with respect to the related Mortgage
Loan representing payments or recoveries of principal including advances in
respect of scheduled payments of principal. For purposes of any Distribution
Date, the Stated Principal Balance of any Mortgage Loan will give effect to
any scheduled payments of principal received or advanced prior to the related
Remittance Date and any unscheduled principal payments and other unscheduled
principal collections received during the related Principal Prepayment Period,
and the Stated Principal Balance of any Mortgage Loan that has prepaid in full
or has become a Liquidated Mortgage Loan during the related Principal
Prepayment Period shall be zero.
Step 1 Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of August 25, 2006, among the Purchaser, ▇▇▇▇▇
Fargo and the Depositor.
Step 2 Assignment Agreement: The Assignment, Assumption and
Recognition Agreement, dated as of August 25, 2006, among the Depositor, the
Trustee and ▇▇▇▇▇ Fargo.
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
September 2009 and (ii) the first Distribution Date on which the Senior
Enhancement Percentage is greater than or equal to the Senior Specified
Enhancement Percentage.
Subcontractor: Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgage-backed securities market) of
Mortgage Loans but performs one or more discrete functions identified in Item
1122(d) of Regulation AB with respect to Mortgage Loans under the direction or
authority of the Servicer, any subservicer or the Securities Administrator, as
the case may be.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subsequent Recoveries: Amounts received with respect to any
Liquidated Mortgage Loan after it has become a Liquidated Mortgage Loan.
Substitute Mortgage Loan: As defined in the Step 1 Assignment
Agreement.
Substitution Adjustment Amount: With respect to a Mortgage Loan
substituted by the Purchaser, an amount of cash received in connection with a
substitution for a Deleted Mortgage Loan.
Tax Matters Person: The Holder of the Class R, Class RC and Class
RX Certificates is designated as "tax matters person" of the Lower-Tier REMIC,
Middle-Tier REMIC and the Upper-Tier REMIC, respectively, in the manner
provided under Treasury Regulations Section 1.806F-4(d) and Treasury
Regulations Section 301.6234(a)(7)-1.
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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).
Total Monthly Excess Spread: As to any Distribution Date, an
amount equal to the excess if any, of (i) the interest collected (prior to the
related Remittance Date) or advanced on the Mortgage Loans for Due Dates
during the related Due Period (net of Expense Fees) over (ii) the sum of the
interest payable to the Principal Certificates on such Distribution Date
pursuant to Section 4.01(a)(i).
Transaction Documents: This Agreement, the Assignment Agreements
and any other document or agreement entered into in connection with the Trust
Fund, the Certificates or the Mortgage Loans.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Transfer Affidavit: As defined in Section 5.02(c)(ii).
Transferor Certificate: As defined in Section 5.02(b).
Trigger Event: With respect to any Distribution Date, a Trigger
Event exists if (i) on such Distribution Date the quotient (expressed as a
percentage) of (x) the rolling three month average of the aggregate unpaid
principal balance of 60+ Day Delinquent Mortgage Loans, and (y) the aggregate
unpaid principal balance of the Mortgage Loans as of the last day of the
related Due Period equals or exceeds 40.00% of the Senior Enhancement
Percentage as of the last day of the prior Due Period or (ii) the quotient
(expressed as a percentage) of (x) the aggregate amount of Realized Losses
incurred since the Cut-off Date through the last day of the related Principal
Prepayment Period divided by (y) the Cut-off Date Pool Principal Balance
exceeds the applicable percentages set forth below with respect to such
Distribution Date:
Distribution Date Occurring In Loss Percentage
------------------------------ ---------------
September 2008 - August 2009 0.200% for the first month, plus an
additional 1/12th of 0.300% for each month
thereafter (e.g., approximately 0.225% in
October 2008)
September 2009 - August 2010 0.500% for the first month, plus an
additional 1/12th of 0.350% for each month
thereafter (e.g., approximately 0.529% in
October 2009)
September 2010 - August 2011 0.850% for the first month, plus an
additional 1/12th of 0.300% for each month
thereafter (e.g., approximately 0.875% in
October 2010)
September 2011 - August 2012 1.150% for the first month, plus an
additional 1/12th of 0.300% for each month
thereafter (e.g., approximately 1.175% in
October 2011)
35
September 2012 and thereafter 1.450%
Trust: The express trust created hereunder in Section 2.01(c).
Trust Fund: The corpus of the trust created hereunder consisting
of (i) the Mortgage Loans and all interest and principal received on or with
respect thereto after the related Cut-off Date, other than such amounts which
were due on the Mortgage Loans on or before the related Cut-off Date; (ii) the
Interest Rate Corridor Agreement and all amounts received thereunder; (iii)
the Excess Reserve Fund Account, the Distribution Account, and all amounts
deposited therein pursuant to the applicable provisions of this Agreement;
(iv) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure or otherwise; (v) the rights of the
Trust under the Step 2 Assignment Agreement; and (vi) all proceeds of the
conversion, voluntary or involuntary, of any of the foregoing.
Trust REMIC: As specified in the Preliminary Statement.
Trustee: Deutsche Bank, and its successors in interest, and, if a
successor trustee is appointed hereunder, such successor.
Underwriters' Exemption: Any exemption listed in footnote 1 of,
and amended by, Prohibited Transaction Exemption 2002-41, 67 Fed. Reg. 54487
(2002), or amended by Prohibited Transaction Exemption 2002-19, 67 Fed. Reg.
14979, or any successor exemption.
Unpaid Interest Amount: As of any Distribution Date and any Class
of Certificates, the sum of (a) the portion of the Accrued Certificate
Interest Distribution Amount from Distribution Dates remaining unpaid prior to
the current Distribution Date and (b) interest on the amount in clause (a) at
the applicable Pass-Through Rate (to the extent permitted by applicable law).
U.S. Bank: U.S. Bank National Association, a national banking
association, and its successors in interest.
U.S. Person: (i) A citizen or resident of the United States; (ii)
a corporation (or entity treated as a corporation for tax purposes) created or
organized in the United States or under the laws of the United States or of
any State thereof, including, for this purpose, the District of Columbia;
(iii) a partnership (or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the United States or of
any State thereof, including, for this purpose, the District of Columbia
(unless provided otherwise by future Treasury regulations); (iv) an estate
whose income is includible in gross income for United States income tax
purposes regardless of its source; or (v) a trust, if a court within the
United States is able to exercise primary supervision over the administration
of the trust and one or more U.S. Persons have authority to control all
substantial decisions of the trust. Notwithstanding the last clause of the
preceding sentence, to the extent provided in Treasury regulations, certain
trusts in existence on August 20, 1996, and treated as U.S. Persons prior to
such date, may elect to continue to be U.S. Persons.
Upper-Tier Regular Interest: As described in the Preliminary
Statement.
36
Upper-Tier REMIC: As described in the Preliminary Statement.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Class X
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), (b) 1% of all Voting Rights shall be allocated to the Class P
Certificates, if any (such Voting Rights to be allocated among the holders of
Certificates of each such Class in accordance with their respective Percentage
Interests), and (c) the remaining Voting Rights shall be allocated among
Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
WAC Cap: With respect to the Mortgage Loans as of any Distribution
Date, a per annum rate equal to the product of (A) the weighted average of the
Adjusted Net Mortgage Interest Rates then in effect on the beginning of the
related Due Period on the Mortgage Loans, and (B) 30 divided by the actual
number of days in the related Interest Accrual Period, in the case of the
LIBOR Certificates, and 30 divided by 360, in the case of the Fixed Rate
Certificates.
▇▇▇▇▇ Fargo: ▇▇▇▇▇ Fargo Bank, National Association, a national
banking association, and its successors in interest.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to the Trustee for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Trust Fund.
(b) In connection with the transfer and assignment of each
Mortgage Loan, the Depositor has delivered or caused to be delivered to the
applicable Custodian on behalf of the Trustee for the benefit of the
Certificateholders the following documents or instruments with respect to each
applicable Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(ii) The original Assignment of Mortgage in blank unless the
Mortgage Loan is a MERS Loan;
(iii) personal endorsement, surety and/or guaranty agreements
executed in connection with all non individual Mortgage Loans
(corporations, partnerships, trusts, estates, etc. (if any);
37
(iv) the related original Mortgage and evidence of its recording
or a certified copy of the mortgage with evidence of recording;
(v) originals of any intervening Mortgage assignment or certified
copies in either case necessary to show a complete chain of title from
the original mortgagee to the seller and evidencing recording; provided,
that, except in the case of the ▇▇▇▇▇▇▇ Conduit Mortgage Loans, the
assignment may be in the form of a blanket assignment or assignments, a
copy of which with evidence of recording shall be acceptable;
(vi) originals of all assumption, modification, consolidation or
extension agreements or certified copies thereof, in either case with
evidence of recording if required to maintain the lien of the mortgage
or if otherwise required, or, if recordation is not required, an
original or copy of the agreement; provided, that, in the case of the
▇▇▇▇▇▇▇ Conduit Mortgage Loans, an original with evidence of recording
thereon is always required;
(vii) if applicable to the files held by the applicable Custodian,
an original or copy of a title insurance policy or evidence of title;
(viii) to the extent applicable, an original power of attorney;
(ix) for each Mortgage Loan (if applicable to the files held by
the applicable Custodian) with respect to which the Mortgagor's name as
it appears on the note does not match the borrower's name on the
Mortgage Loan Schedule, one of the following: the original of the
assumption agreement or a certified copy thereof;
(x) if applicable to the files held by the applicable Custodian, a
security agreement, chattel mortgage or equivalent document executed in
connection with the Mortgage, if any; and
(xi) with respect to each Mortgage Loan, the complete Custodial
File (as defined below) including all items as set forth in the
Servicing Agreement to the extent in the possession of the Depositor or
the Depositor's Agents.
The Depositor shall deliver or cause the Responsible Party to
deliver to each Custodian the applicable recorded document promptly upon
receipt from the respective recording office but in no event later than 120
days from the Closing Date.
From time to time, pursuant to the applicable Sale Agreement, the
Responsible Party may forward to the applicable Custodian additional original
documents, additional documents evidencing an assumption, modification,
consolidation or extension of a Mortgage Loan, in accordance with the terms of
the applicable Sale Agreement. All such mortgage documents held by the
Custodians as to each Mortgage Loan shall constitute the "Custodial File."
On or prior to the Closing Date, the Depositor shall deliver to
the Custodians Assignments of Mortgages (except in the case of MERS Loans), in
blank, for each applicable Mortgage Loan. On the Closing Date (or, with
respect to any Substitute Mortgage Loan, within
38
thirty (30) days after the receipt of the Mortgage File by the Custodian), the
Trustee shall provide a written request to the Responsible Party to submit the
Assignments of Mortgage for recordation, at the Responsible Party's expense,
pursuant to the applicable Sale Agreement. Each Custodian shall deliver the
Assignment of Mortgages to be submitted for recordation to the Responsible
Party upon receipt of a written request for release in standard and customary
form as set forth in Exhibit ▇-▇, ▇-▇ ▇▇ ▇-▇, as applicable.
On or prior to the Closing Date, the Depositor shall deliver to
the Custodians and the Servicer a copy of the Mortgage Loan Schedule in
electronic, machine readable medium in a form mutually acceptable to the
Depositor, the applicable Custodian, the Servicer and the Trustee.
In the event that such original or copy of any document submitted
for recordation to the appropriate public recording office is not so delivered
to the Custodian within the time period and in the manner specified in the
applicable Sale Agreement, the Trustee shall take or cause to be taken such
remedial actions under the Sale Agreement against the Responsible Party as may
be permitted to be taken thereunder, including without limitation, if
applicable, the repurchase by the Responsible Party of such Mortgage Loan. The
foregoing repurchase remedy shall not apply in the event that the Responsible
Party cannot deliver such original or copy of any document submitted for
recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided, that the Responsible Party shall instead deliver a
recording receipt of such recording office or, if such recording receipt is
not available, an Officer's Certificate of an officer of the Responsible
Party, confirming that such document has been accepted for recording.
Notwithstanding anything to the contrary contained in this Section
2.01, in those instances where the public recording office retains or loses
the original Mortgage or assignment after it has been recorded, the
obligations of the Responsible Party shall be deemed to have been satisfied
upon delivery by the Responsible Party to the applicable Custodian prior to
the Closing Date of a copy of such Mortgage or assignment, as the case may be,
certified (such certification to be an original thereof) by the public
recording office to be a true and complete copy of the recorded original
thereof.
(c) The Depositor does hereby establish, pursuant to the further
provisions of this Agreement and the laws of the State of New York, an express
trust (the "Trust") to be known, for convenience, as "GSAA Home Equity Trust
2006-13" and Deutsche Bank is hereby appointed as Trustee in accordance with
the provisions of this Agreement.
(d) It is the policy and intention of the Trust that none of the
Mortgage Loans included in the Trust is (a) covered by the Home Ownership and
Equity Protection Act of 1994, or (b) considered a "high cost home,"
"threshold," "predatory" or "covered" loan (excluding "covered home loans" as
defined under clause (1) of the definition of "covered home loans" in the New
Jersey Home Ownership Security Act of 2002) under applicable state, federal or
local laws.
Section 2.02 Acceptance by the Custodians of the Mortgage Loans.
Each Custodian acknowledges receipt of the documents identified in the Initial
Certification, subject to
39
any exceptions listed on the exception report attached thereto, in the form
annexed hereto as Exhibit E, and declares that it holds and will hold such
documents and the other documents delivered to it pursuant to Section 2.01,
and that it holds or will hold such other assets as are included in the Trust
Fund, in trust for the exclusive use and benefit of all present and future
Certificateholders. Deutsche Bank, as Custodian, acknowledges that it will
maintain possession of the related Mortgage Notes in the State of California,
JPMorgan, as Custodian, acknowledges that it will maintain possession of the
related Mortgage Notes in the State of Texas and U.S. Bank, as Custodian,
acknowledges that it will maintain possession of the related Mortgage Notes in
the State of Minnesota, unless otherwise permitted by the Rating Agencies.
Prior to and as a condition to the Closing, each Custodian shall
deliver via facsimile (with original to follow the next Business Day) to the
Depositor an Initial Certification prior to the Closing Date, or as the
Depositor agrees to, on the Closing Date, certifying receipt of a Mortgage
Note and Assignment of Mortgage, subject to any exceptions listed on the
exception report attached thereto, for each Mortgage Loan. None of the
Custodians shall be responsible for verifying the validity, sufficiency or
genuineness of any document in any Custodial File.
On the Closing Date, each Custodian shall ascertain that all
documents required to be delivered to it on or prior to the Closing Date are
in its possession, subject to any exceptions listed on the exception report
attached thereto, and shall deliver to the Depositor and the Trustee an
Initial Certification, in the form annexed hereto as Exhibit E, and shall
deliver to the Depositor and the Trustee a Document Certification and
Exception Report, in the form annexed hereto as Exhibit F, within ninety (90)
days after the Closing Date (or, with respect to any Substitute Mortgage Loan,
within thirty (30) days after the receipt of the Mortgage File by the
Custodian) to the effect that, as to each applicable Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any
Mortgage Loan specifically identified in such certification as an exception
and not covered by such certification): (i) all documents required to be
delivered to it are in its possession; (ii) such documents have been reviewed
by it and appear regular on their face and relate to such Mortgage Loan; (iii)
based on its examination and only as to the foregoing documents, as to
Deutsche Bank, the information set forth in items 2, 8, 33, and 34 of the
Mortgage Loan Schedule respecting such Mortgage Loan is correct; (iv) based on
its examination and only as to the foregoing documents, as to JPMorgan, the
information set forth in items 2, 8, 33, and 34 of the Mortgage Loan Schedule
respecting such Mortgage Loan is correct; (v) based on its examination and
only as to the foregoing documents, as to U.S. Bank, the information set forth
in items 2, 8, 33, and 34 of the Mortgage Loan Schedule respecting such
Mortgage Loan is correct and (vi) each Mortgage Note has been endorsed as
provided in Section 2.01 of this Agreement. None of the Custodians shall be
responsible for verifying the validity, sufficiency or genuineness of any
document in any Custodial File.
Each Custodian shall retain possession and custody of each
applicable Custodial File in accordance with and subject to the terms and
conditions set forth herein. The Servicer shall promptly deliver to the
applicable Custodian, upon the execution or receipt thereof, the originals of
such other documents or instruments constituting the Custodial File as come
into the possession of the Servicer from time to time.
40
Each Custodian shall notify the Trustee of any Mortgage Loans that
do not conform to the requirements of Sections 2.01 and 2.02 hereof by
delivery of the Document Certification and Exception Report. In its capacity
as "Assignee" under the Step 2 Assignment Agreement, the Trustee at the
direction of the Depositor shall enforce the obligation of the Responsible
Party to cure or repurchase Mortgage Loans that do not conform to such
requirements as determined in the applicable Custodian's review as required
herein, by notifying the Responsible Party to correct or cure such default. In
its capacity as Assignee under the Step 2 Assignment Agreement, the Trustee
shall enforce the obligation of the Responsible Party under the Step 1
Assignment Agreement, and to the extent applicable, of the Servicer under the
Servicing Agreement, to cure or repurchase Mortgage Loans for which there is a
defect or a breach of a representation or warranty thereunder of which a
Responsible Officer of the Trustee has actual knowledge, by notifying the
applicable party to correct or cure such default. If the Servicer, the
Responsible Party or the Purchaser, as the case may be, fails or is unable to
correct or cure the defect or breach within the period set forth in the
applicable agreement, the Trustee shall notify the Depositor of such failure
to correct or cure. Unless otherwise directed by the Depositor within five (5)
Business Days after notifying the Depositor of such failure by the applicable
party to correct or cure, the Trustee shall notify such party to repurchase
the Mortgage Loan. If, within ten (10) Business Days of receipt of such notice
by such party, such party fails to repurchase such Mortgage Loan, the Trustee
shall notify the Depositor of such failure. The Trustee shall pursue all legal
remedies available to the Trustee against the Servicer, the Responsible Party
and the Purchaser, as applicable, under this Agreement, if the Trustee has
received written notice from the Depositor directing the Trustee to pursue
such remedies.
Section 2.03 Execution and Delivery of Certificates. The Trustee
acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with such transfer and assignment, the Securities Administrator
has executed and delivered to or upon the order of the Depositor, the
Certificates in authorized denominations evidencing directly or indirectly the
entire ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund
and exercise the rights referred to above for the benefit of all present and
future Holders of the Certificates.
Section 2.04 REMIC Matters. The Preliminary Statement sets forth
the designations for federal income tax purposes of all interests created
hereby. The "Startup Day" for purposes of the REMIC Provisions shall be the
Closing Date. The "latest possible maturity date" is July 25, 2036, which is
the Distribution Date following the latest Mortgage Loan maturity date.
Amounts paid to the Class X Certificates (prior to any reduction for any Basis
Risk Payment) shall be deemed paid from the Upper-Tier REMIC to the Class X
REMIC in respect of the Class X Interest and from the Class X REMIC to the
holders of the Class X Certificates prior to distribution of Basis Risk
Payments to the Principal Certificates.
Amounts distributable to the Class X Certificates shall be deemed
paid from the Master REMIC to the Holders of the Class X Certificates prior to
distribution of any Basis Risk Payments to the Principal Certificates.
For federal income tax purposes, any amount distributed on the
Principal Certificates on any such Distribution Date in excess of their Pass
Through Rate shall be treated as having been paid from the Excess Reserve Fund
Account.
41
Section 2.05 Representations and Warranties of the Depositor. The
Depositor hereby represents, warrants and covenants to the Trustee that as of
the date of this Agreement or as of such date specifically provided herein:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(b) The Depositor has the corporate power and authority to convey
the Mortgage Loans and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by, this Agreement;
(c) This Agreement has been duly and validly authorized, executed
and delivered by the Depositor, all requisite corporate action having been
taken, and, assuming the due authorization, execution and delivery hereof by
the other parties hereto, constitutes or will constitute the legal, valid and
binding agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(d) No consent, approval, authorization or order of or
registration or filing with, or notice to, any governmental authority or court
is required for the execution, delivery and performance of or compliance by
the Depositor with this Agreement or the consummation by the Depositor of any
of the transactions contemplated hereby, except as have been made on or prior
to the Closing Date;
(e) None of the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby or thereby, or the
fulfillment of or compliance with the terms and conditions of this Agreement,
(i) conflicts or will conflict with or results or will result in a breach of,
or constitutes or will constitute a default or results or will result in an
acceleration under (A) the charter or bylaws of the Depositor, or (B) any
term, condition or provision of any material indenture, deed of trust,
contract or other agreement or instrument to which the Depositor or any of its
subsidiaries is a party or by which it or any of its subsidiaries is bound;
(ii) results or will result in a violation of any law, rule, regulation,
order, judgment or decree applicable to the Depositor of any court or
governmental authority having jurisdiction over the Depositor or its
subsidiaries; or (iii) results in the creation or imposition of any lien,
charge or encumbrance which would have a material adverse effect upon the
Mortgage Loans or any documents or instruments evidencing or securing the
Mortgage Loans;
(f) There are no actions, suits or proceedings before or against
or investigations of, the Depositor pending, or to the knowledge of the
Depositor, threatened, before any court, administrative agency or other
tribunal, and no notice of any such action, which, in the Depositor's
reasonable judgment, might materially and adversely affect the performance by
the Depositor of its obligations under this Agreement, or the validity or
enforceability of this Agreement;
42
(g) The Depositor is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency that may materially and adversely affect its
performance hereunder; and
(h) Immediately prior to the transfer and assignment by the
Depositor to the Trustee on the Closing Date, the Depositor had good title to,
and was the sole owner of each Mortgage Loan, free of any interest of any
other Person, and the Depositor has transferred all right, title and interest
in each Mortgage Loan to the Trustee. The transfer of each Mortgage Note and
each Mortgage as and in the manner contemplated by this Agreement is
sufficient either (i) fully to transfer to the Trustee, for the benefit of the
Certificateholders, all right, title, and interest of the Depositor thereto as
note holder and mortgagee or (ii) to grant to the Trustee, for the benefit of
the Certificateholders, the security interest referred to in Section 11.04
hereof.
It is understood and agreed that the representations, warranties
and covenants set forth in this Section 2.05 shall survive delivery of the
respective Custodial Files to the Custodians, and shall inure to the benefit
of the Trustee and to the Certificateholders.
Within ninety (90) days of the earlier of either discovery by or
notice to the Depositor of a default or a breach set forth in clause (h) above
that materially and adversely affects the value of any Mortgage Loan or the
interest of the Trustee or the Certificateholders therein, the Depositor shall
use its best efforts to promptly cure such breach in all material respects and
if such defect or breach cannot be remedied, the Depositor shall repurchase
such Mortgage Loan at the Repurchase Price. The Depositor shall repurchase
each such Deleted Mortgage Loan within thirty (30) days of the earlier of
discovery or receipt of notice with respect to each such Deleted Mortgage
Loan. Any such repurchase shall be conducted in the same manner as set forth
in Section 5.04 of the Servicing Agreement. The obligations of the Depositor
to cure such breach or to purchase any Mortgage Loan constitute the sole
remedies respecting a material breach of any such representation or warranty
to the Holders of the Certificates and the Trustee.
In the event the Depositor is required to repurchase a Mortgage
Loan pursuant to this Section 2.05, the Trustee shall assign to the Depositor
all rights it has with respect to such Mortgage Loan under the Step 1
Assignment Agreement and, solely to the extent related to such Mortgage Loan,
under the Servicing Agreement.
Section 2.06 Representations and Warranties of JPMorgan. JPMorgan,
as Custodian, hereby represents and warrants to the Depositor, the Securities
Administrator and the Trustee, as of the Closing Date:
(a) Such Custodian is duly organized and is validly existing and
in good standing under the laws of its jurisdiction of incorporation and is
duly authorized and qualified to transact any and all business contemplated by
this Agreement to be conducted by such Custodian or is otherwise not required
under applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the extent
necessary to perform any of its obligations under this Agreement in accordance
with the terms thereof.
43
(b) Such Custodian has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of such Custodian the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of such Custodian, enforceable against such Custodian in
accordance with its terms, except that (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) The execution and delivery of this Agreement by such
Custodian, the consummation of any other of the transactions contemplated by
this Agreement, and the fulfillment of or compliance with the terms thereof
are in the ordinary course of business of such Custodian and will not result
in a material breach of any term or provision of the articles of incorporation
or by laws of such Custodian.
Section 2.07 Representations and Warranties of Deutsche Bank.
Deutsche Bank, in its capacity as a Custodian, hereby represents and warrants
to the Depositor, the Securities Administrator and the Trustee, as of the
Closing Date:
(a) Such Custodian is duly organized and is validly existing and
in good standing under the laws of its jurisdiction of incorporation and is
duly authorized and qualified to transact any and all business contemplated by
this Agreement to be conducted by such Custodian or is otherwise not required
under applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the extent
necessary to perform any of its obligations under this Agreement in accordance
with the terms thereof.
(b) Such Custodian has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of such Custodian the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of such Custodian, enforceable against such Custodian in
accordance with its terms, except that (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) The execution and delivery of this Agreement by such
Custodian, the consummation of any other of the transactions contemplated by
this Agreement, and the fulfillment of or compliance with the terms thereof
are in the ordinary course of business of such Custodian and will not result
in a material breach of any term or provision of the articles of incorporation
or by laws of such Custodian.
44
Section 2.08 Representations and Warranties of U.S. Bank. U.S.
Bank hereby represents and warrants to the Depositor, the Securities
Administrator and the Trustee, as of the Closing Date:
(a) Such Custodian is duly organized and is validly existing and
in good standing under the laws of its jurisdiction of incorporation and is
duly authorized and qualified to transact any and all business contemplated by
this Agreement to be conducted by such Custodian or is otherwise not required
under applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the extent
necessary to perform any of its obligations under this Agreement in accordance
with the terms thereof.
(b) Such Custodian has the full power and authority to execute,
deliver and perform, and to enter into and consummate the transactions
contemplated by this Agreement and has duly authorized by all necessary action
on the part of such Custodian the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of such Custodian, enforceable against such Custodian in
accordance with its terms, except that (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
The execution and delivery of this Agreement by such Custodian,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are in
the ordinary course of business of such Custodian and will not result in a
material breach of any term or provision of the articles of incorporation or
by laws of such Custodian.
ARTICLE III
TRUST ACCOUNTS
Section 3.01 Excess Reserve Fund Account; Distribution Account.
(a) The Securities Administrator shall establish and maintain the Excess
Reserve Fund Account to receive any Basis Risk Payment and any Interest Rate
Corridor Payment and to secure their limited recourse obligation to pay to the
Principal Certificateholders any Basis Risk Carry Forward Amounts. On each
Distribution Date, the Securities Administrator shall deposit the amount of
any Basis Risk Payment and any Interest Rate Corridor Payment received by it
for such date into the Excess Reserve Fund Account.
On each Distribution Date on which there exists a Basis Risk Carry
Forward Amount on any Class or Classes of Principal Certificates, the
Securities Administrator shall (1) withdraw from the Distribution Account, to
the extent of funds available therefor in the Distribution Account, and
deposit in the Excess Reserve Fund Account, as set forth in Section
4.01(a)(iii)(L), the lesser of (x) the Class X Distributable Amount (without
regard to the reduction in clause (iii) of the definition thereof with respect
to Basis Risk Payments) (to
45
the extent remaining after the distributions specified in Sections
4.01(a)(iii)(A)-(L)) and (y) the aggregate Basis Risk Carry Forward Amount of
the Principal Certificates for such Distribution Date and (2) withdraw from
the Excess Reserve Fund Account amounts necessary (including Interest Rate
Corridor Payments) to pay to such Class or Classes of Certificates the related
Basis Risk Carry Forward Amount. Such payments shall be allocated to those
Classes based upon the amount of Basis Risk Carry Forward Amount owed to each
such Class and shall be paid in the priority set forth in Section
4.01(a)(iii)(M).
The Securities Administrator shall account for the Excess Reserve
Fund Account as an asset of a grantor trust under subpart E, Part I of
subchapter J of the Code and not as an asset of any Trust REMIC created
pursuant to this Agreement. The beneficial owners of the Excess Reserve Fund
Account are the Class X Certificateholders. For all federal income tax
purposes, amounts transferred to the Excess Reserve Fund Account shall be
treated as distributions by the Securities Administrator from the Class X
REMIC to the Class X Certificates and then contributed by the Class X
Certificateholders to the Excess Reserve Fund Account.
Any Basis Risk Carry Forward Amounts distributed by the Securities
Administrator to the Principal Certificateholders shall be accounted for by
the Securities Administrator, for federal income tax purposes, as amounts paid
first to the Holders of the Class X Certificates and then to the respective
Class or Classes of Principal Certificates in accordance with the priority of
payments in this Section 3.01. In addition, the Securities Administrator shall
account for the Principal Certificateholders' rights to receive payments of
Basis Risk Carry Forward Amounts as rights in a limited recourse interest rate
cap contract written by the Class X Certificateholders in favor of the Holders
of each such Class.
Notwithstanding any provision contained in this Agreement, the
Securities Administrator shall not be required to make any distributions from
the Excess Reserve Fund Account except as expressly set forth in this Section
3.01(a).
(b) The Securities Administrator shall establish and maintain the
Distribution Account in the name of the Securities Administrator, as paying
agent, on behalf of the Trustee and the Certificateholders. The amount
remitted by the Servicer to the Securities Administrator on each Remittance
Date shall be credited to the Distribution Account within two (2) Business
Days once the amounts are identified as a remittance in connection with the
Trust and reconciled to the reports provided by the Servicer. The Securities
Administrator shall establish and maintain the Distribution Account on behalf
of the Certificateholders. The Securities Administrator shall, promptly upon
receipt on the Business Day received, deposit in the Distribution Account and
retain therein the following:
(i) the aggregate amount remitted by the Servicer pursuant to the
Servicing Agreement; and
(ii) any other amounts deposited hereunder which are required to
be deposited in the Distribution Account.
In the event that the Servicer shall remit any amount not required
to be remitted pursuant to the Servicing Agreement, and the Servicer directs
the Securities Administrator in
46
writing to withdraw such amount from the Distribution Account, the Securities
Administrator shall return such funds to the Servicer. All funds deposited in
the Distribution Account shall be held by the Securities Administrator in
trust for the Certificateholders until disbursed in accordance with this
Agreement or withdrawn in accordance with Section 4.01.
(c) From time to time, the Securities Administrator may also
establish any other accounts for the purposes of carrying out its duties
hereunder.
(d) Pursuant to the Step 2 Assignment Agreement, the Servicer
shall be entitled to receive, as additional compensation for the performance
of its duties under the Servicing Agreement, the investment income earned on
amounts in the Distribution Account during the Servicer Float Period.
Section 3.02 Investment of Funds in the Distribution Account. (a)
Other than during the Securities Administrator Float Period, the Servicer
shall direct the investment by the Securities Administrator of funds held in
the Distribution Account in one or more Permitted Investments. Absent such
direction, the Securities Administrator shall invest such funds during such
period in the ▇▇▇▇▇ Fargo Advantage Prime Investment Money Market Fund so long
as such fund is a Permitted Investment. The Securities Administrator may (but
shall not be obligated to) invest funds in the Distribution Account during the
Securities Administrator Float Period (for purposes of this Section 3.02, such
Account is referred to as an "Investment Account"), in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless
payable on demand, or maturing on such Distribution Date (in the case of an
investment that is an obligation of ▇▇▇▇▇ Fargo), no later than the Business
Day immediately preceding the date on which such funds are required to be
withdrawn from such account pursuant to this Agreement. All such Permitted
Investments shall be held to maturity, unless payable on demand. Any
investment of funds in an Investment Account shall be made in the name of the
Securities Administrator. The Securities Administrator shall be entitled to
sole possession over each such investment, and any certificate or other
instrument evidencing any such investment shall be delivered directly to the
Securities Administrator or its agent, together with any document of transfer
necessary to transfer title to such investment to the Securities
Administrator. In the event amounts on deposit in an Investment Account are at
any time invested in a Permitted Investment payable on demand, the Securities
Administrator may:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an
amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on
such date; and
(y) demand payment of all amounts due thereunder that such
Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) All income and gain realized from the investment of funds
deposited in the Distribution Account held by the Securities Administrator
during the Securities Administrator
47
Float Period shall be subject to the Securities Administrator's withdrawal in
the manner set forth in Section 9.05.
(c) Except as otherwise expressly provided in this Agreement, if
any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in any other performance required under any
Permitted Investment, the Securities Administrator shall take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings. Notwithstanding the
foregoing, (i) the Servicer shall be liable to the Trust for any loss on any
investment of funds in the Distribution Account other than during the
Securities Administrator Float Period and (ii) the Securities Administrator
shall be liable to the Trust for any such loss on any funds it has invested
under this Section 3.02 only during the Securities Administrator Float Period.
The Servicer or the Securities Administrator, as the case may be, shall
deposit funds in the amount of any such loss in the Distribution Account
promptly after such loss is incurred.
(d) The Securities Administrator or its Affiliates are permitted
to receive additional compensation that could be deemed to be in the
Securities Administrator's economic self-interest for (i) serving as
investment adviser, administrator, shareholder, servicing agent, custodian or
sub-custodian with respect to certain of the Permitted Investments, (ii) using
Affiliates to effect transactions in certain Permitted Investments and (iii)
effecting transactions in certain Permitted Investments. Such compensation is
not payable or reimbursable under Section 8.06 of this Agreement.
(e) In order to comply with its duties under the USA Patriot Act
of 2001, U.S. Bank, as a Custodian and JPMorgan, as a Custodian may obtain and
verify certain information and documentation from the other parties to this
Agreement including, but not limited to, each such party's name, address and
other identifying information.
(f) In order to comply with laws, rules and regulations applicable
to banking institutions, including those relating to the funding of terrorist
activities and money laundering, Deutsche Bank as Trustee and a Custodian is
required to obtain, verify and record certain information relating to
individuals and entities which maintain a business relationship with Deutsche
Bank. Accordingly, each of the parties agrees to provide to Deutsche Bank upon
its request from time to time such party's complete name, address, tax
identification number and such other identifying information together with
copies of such party's constituting documentation, securities disclosure
documentation and such other identifying documentation as may be available for
such party.
ARTICLE IV
DISTRIBUTIONS
Section 4.01 Priorities of Distribution. (a) On each Distribution
Date, the Securities Administrator shall make the disbursements and transfers
from amounts then on deposit in the Distribution Account in the following
order of priority and to the extent of the Available Funds remaining:
48
(i) from the Interest Remittance Amount, to the holders of each
Class of Principal Certificates in the following order of priority:
(A) to the Class A Certificates, their respective Accrued
Certificate Interest Distribution Amount and Unpaid Interest
Amounts (allocated pro rata based on their entitlement to those
amounts);
(B) from any remaining Interest Remittance Amounts to the
Class M Certificates, sequentially, in ascending numerical order,
the Accrued Certificate Interest Distribution Amount for each such
Class; and
(C) from any remaining Interest Remittance Amounts to the
Class B Certificates, sequentially, in ascending numerical order,
the Accrued Certificate Interest Distribution Amount for each such
Class.
(ii) (A) on each Distribution Date (x) prior to the Stepdown Date
or (y) with respect to which a Trigger Event is in effect, to the
holders of the Class or Classes of Principal Certificates and Residual
Certificates then entitled to distributions of principal, from Available
Funds remaining after making distributions pursuant to clause (a)(i)
above, an amount equal to the Principal Distribution Amount in the
following order of priority:
(1) concurrently, to the Class R, Class RC and Class
RX Certificates, pro rata, until their respective Class
Certificate Balances have been reduced to zero;
(2) sequentially,
(a) to the Class AF-6 Certificates, an amount
equal to the Class AF-6 Lockout Distribution Amount,
until its Class Certificate Balance has been reduced
to zero;
(b) sequentially, to the Class AV-1, Class AF-2,
Class AF-3, Class AF-4 and Class AF-5 Certificates, in
that order, until their respective Class Certificate
Balances have been reduced to zero;
(c) to the Class AF-6 Certificates, without
regard to the Class AF-6 Lockout Distribution Amount,
until its Class Certificate Balance has been reduced
to zero;
(3) the portion of the available Principal
Distribution Amount remaining after making the distributions
set forth in clause (ii)(A)(2) above will be distributed
sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class
M-4, Class M-5, Class B-1, Class B-2 and Class B-3
Certificates, in that order, until their respective Class
Certificate Balances have been reduced to zero;
49
(B) on each Distribution Date (x) on and after the Stepdown
Date and (y) as long as a Trigger Event is not in effect, to the
holders of the Class or Classes of Principal Certificates then
entitled to distribution of principal from Available Funds
remaining after making distributions pursuant to clause (i) above,
an amount equal to the Principal Distribution Amount in the
following order of priority:
(1) to the Class A Certificates, the lesser of (x) the
Principal Distribution Amount and (y) the Class A Principal
Distribution Amount allocated sequentially as follows:
(a) to the Class AF-6 Certificates, an amount
equal to the Class AF-6 Lockout Distribution Amount,
until its Class Certificate Balance has been reduced
to zero;
(b) sequentially, to the Class AV-1, Class AF-2,
Class AF-3, Class AF-4 and Class AF-5 Certificates, in
that order, until their respective Class Certificate
Balances are reduced to zero;
(c) to the Class AF-6 Certificates, without
regard to the Class AF-6 Lockout Distribution Amount,
until its Class Certificate Balance has been reduced
to zero;
(2) to the Class M-1 Certificates, the lesser of (x)
the excess of (i) the Principal Distribution Amount over
(ii) the amount distributed to the Class A Certificates in
clause (ii)(B)(1) above and (y) the Class M-1 Principal
Distribution Amount, until their Class Certificate Balance
has been reduced to zero;
(3) to the Class M-2 Certificates, the lesser of (x)
the excess of (i) the Principal Distribution Amount over
(ii) the amount distributed to the Class A Certificates in
clause (ii)(B)(1) above and to the Class M-1 Certificates in
clause (ii)(B)(2) above and (y) the Class M-2 Principal
Distribution Amount, until their Class Certificate Balance
has been reduced to zero;
(4) to the Class M-3 Certificates, the lesser of (x)
the excess of (i) the Principal Distribution Amount over
(ii) the amount distributed to the Class A Certificates in
clause (ii)(B)(1) above, to the Class M-1 Certificates in
clause (ii)(B)(2) above and to the Class M-2 Certificates in
clause (ii)(B)(3) above and (y) the Class M-3 Principal
Distribution Amount, until their Class Certificate Balance
has been reduced to zero;
(5) to the Class M-4 Certificates, the lesser of (x)
the excess of (i) the Principal Distribution Amount over
(ii) the amount distributed to the Class A Certificates in
clause (ii)(B)(1) above, to the Class M-1 Certificates in
clause (ii)(B)(2) above, to the Class M-2 Certificates in
clause (ii)(B)(3) above and to the Class M-3 Certificates in
50
clause (ii)(B)(4) above and (y) the Class M-4 Principal
Distribution Amount, until their Class Certificate Balance
has been reduced to zero;
(6) to the Class M-5 Certificates, the lesser of (x)
the excess of (i) the Principal Distribution Amount over
(ii) the amount distributed to the Class A Certificates in
clause (ii)(B)(1) above, to the Class M-1 Certificates in
clause (ii)(B)(2) above, to the Class M-2 Certificates in
clause (ii)(B)(3) above, to the Class M-3 Certificates in
clause (ii)(B)(4) above and to the Class M-4 Certificates in
clause (ii)(B)(5) above and (y) the Class M-5 Principal
Distribution Amount, until their Class Certificate Balance
has been reduced to zero;
(7) to the Class B-1 Certificates, the lesser of (x)
the excess of (i) the Principal Distribution Amount over
(ii) the amount distributed to the Class A Certificates in
clause (ii)(B)(1) above, to the Class M-1 Certificates in
clause (ii)(B)(2) above, to the Class M-2 Certificates in
clause (ii)(B)(3) above, to the Class M-3 Certificates in
clause (ii)(B)(4) above, to the Class M-4 Certificates in
clause (ii)(B)(5) above and to the Class M-5 Certificates in
clause (ii)(B)(6) above and (y) the Class B-1 Principal
Distribution Amount, until their Class Certificate Balance
has been reduced to zero;
(8) to the Class B-2 Certificates, the lesser of (x)
the excess of (i) the Principal Distribution Amount over
(ii) the amount distributed to the Class A Certificates in
clause (ii)(B)(1) above, to the Class M-1 Certificates in
clause (ii)(B)(2) above, to the Class M-2 Certificates in
clause (ii)(B)(3) above, to the Class M-3 Certificates in
clause (ii)(B)(4) above, to the Class M-4 Certificates in
clause (ii)(B)(5) above, to the Class M-5 Certificates in
clause (ii)(B)(6) above and to the Class B-1 Certificates in
clause (ii)(B)(7) above and (y) the Class B-2 Principal
Distribution Amount, until their Class Certificate Balance
has been reduced to zero; and
(9) to the Class B-3 Certificates, the lesser of (x)
the excess of (i) the Principal Distribution Amount over
(ii) the amount distributed to the Class A Certificates in
clause (ii)(B)(1) above, to the Class M-1 Certificates in
clause (ii)(B)(2) above, to the Class M-2 Certificates in
clause (ii)(B)(3) above, to the Class M-3 Certificates in
clause (ii)(B)(4) above, to the Class M-4 Certificates in
clause (ii)(B)(5) above, to the Class M-5 Certificates in
clause (ii)(B)(6) above, to the Class B-1 Certificates in
clause (ii)(B)(7) above and to the Class B-2 Certificates in
clause (ii)(B)(8) above and (y) the Class B-3 Principal
Distribution Amount, until their Class Certificate Balance
has been reduced to zero;
(iii) from the Available Funds remaining after the distributions
in clauses (a)(i) and (a)(ii) above, the following amounts shall be
distributed in the following order of priority:
51
(A) if and to the extent that the Interest Remittance
Amounts distributed pursuant to clauses (a)(i) and (a)(ii) above
were insufficient to make full distributions in respect of
interest set forth in such clauses, (x) to the holders of each
Class of Class A Certificates, any unpaid Accrued Certificate
Interest and any Unpaid Interest Amounts, pro rata among such
Classes based on their respective entitlement to those amounts,
and then (y) to the holders of each Class of the Class M and Class
B Certificates, any unpaid Accrued Certificate Interest, in the
order of priority for such classes set forth in clause (i) above;
(B) to the holders of the Class M-1 Certificates, any Unpaid
Interest Amount for such Class;
(C) to the holders of the Class M-2 Certificates, any Unpaid
Interest Amount for such Class;
(D) to the holders of the Class M-3 Certificates, any Unpaid
Interest Amount for such Class;
(E) to the holders of the Class M-4 Certificates, any Unpaid
Interest Amount for such Class;
(F) to the holders of the Class M-5 Certificates, any Unpaid
Interest Amount for such Class;
(G) to the holders of the Class B-1 Certificates, any Unpaid
Interest Amount for such Class;
(H) to the holders of the Class B-2 Certificates, any Unpaid
Interest Amount for such Class;
(I) to the holders of the Class B-3 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;
(K) from funds on deposit in the Excess Reserve Fund Account
with respect to that Distribution Date (not including any Interest
Rate Corridor Payments), an amount equal to any Basis Risk Carry
Forward Amount with respect to the Principal Certificates for that
Distribution Date in the same order and priority in which Accrued
Certificate Interest is allocated among those Classes of
Certificates, with the allocation to the Class A Certificates
being pro rata based on their respective Class Certificate
Balances; provided, however, for any Distribution Date, after the
remaining Basis Risk Carry Forward Amount for any of the Class A
Certificates has been reduced to zero, any remaining Basis Risk
Carry Forward Amount that would have been allocated to such Class
A Certificates for that Distribution Date will be allocated, pro
rata, to the remaining
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Class A Certificates based on their respective remaining unpaid
Basis Risk Carry Forward Amounts;
(L) from any Interest Rate Corridor Payments from the
Interest Rate Corridor Agreement on deposit in the Excess Reserve
Fund Account with respect to that Distribution Date, first, to the
Class B-3 Certificates, up to its unpaid remaining Basis Risk
Carry Forward Amount, and second, from any remaining Interest Rate
Corridor Payments from the Interest Rate Corridor Agreement, after
the distributions to the Class B-3 Certificates, such remaining
amount to be paid to or at the written direction of the Depositor;
(M) to the holders of the Class X Certificates, the
remainder of the Class X Distributable Amount not distributed
pursuant to Sections 4.01(a)(iii)(A)-(N);
(N) to the holders of the Class R and Class RC Certificates,
pro rata, any remaining amount; and
(O) to the holders of the Class RX Certificates, any
remaining amount, in respect of the Class X REMIC.
If on any Distribution Date, as a result of the foregoing allocation
rules, any Class of Class A Certificates does 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 those Classes, 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 Principal 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 Principal
Prepayment Period shall be distributed by the Securities Administrator to the
holders of the Class P Certificates.
(c) Notwithstanding the foregoing description of allocation of
principal distributions to the Class A Certificates, from and after the
Distribution Date on which the aggregate Class Certificate Balance of the
Subordinated Certificates and the Overcollateralized Amount have been reduced
to zero, any principal distributions allocated to the Class A Certificates are
required to be allocated pro rata to the Class A Certificates, based on their
respective Class Certificate Balances.
(d) On any Distribution Date, any shortfalls resulting from the
application of the Servicemembers Civil Relief Act or other similar state
statute and any prepayment interest shortfalls not covered by Compensating
Interest will be allocated first to excess interest on the mortgage loans for
the related Distribution Date and thereafter as a reduction to the Accrued
Certificate Interest for the Principal Certificates on a pro rata basis based
on the respective amounts of interest accrued on those certificates for that
Distribution Date. The holders of the
53
Principal Certificates will not be entitled to reimbursement for the
allocation of any of those shortfalls described in the preceding sentence.
(e) Upon any exercise of the purchase option set forth in Section
10.01, the Securities Administrator shall distribute to the holders of the
Class RC Certificates any amounts required to be distributed on the Class RC
Certificates pursuant to Section 10.02.
Section 4.02 Monthly Statements to Certificateholders. (a) Not
later than each Distribution Date, the Securities Administrator shall make
available to each Certificateholder, the Depositor, the Trustee and each
Rating Agency a statement based, in part, upon the information provided by the
Servicer setting forth with respect to the related distribution:
(i) the amount thereof allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein;
(ii) the amount thereof allocable to interest, any Unpaid Interest
Amount included in such distribution and any remaining Unpaid Interest
Amount after giving effect to such distribution, any Basis Risk Carry
Forward Amount for such Distribution Date and the amount of all Basis
Risk Carry Forward Amount covered by withdrawals from the Excess Reserve
Fund Account on such Distribution Date;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the
amount of the shortfall and the allocation thereof as between principal
and interest, including any Basis Risk Carry Forward Amount not covered
by amounts in the Excess Reserve Fund Account;
(iv) the Class Certificate Balance of each Class of Certificates
and the notional amount of the Class P Certificates after giving effect
to the distribution of principal on such Distribution Date;
(v) the aggregate Stated Principal Balance of the Mortgage Loans
for the following Distribution Date;
(vi) the amount of the expenses and fees paid to or retained by
the Servicer and paid to or retained by the Trustee with respect to such
Distribution Date;
(vii) the amount of the Expense Fees (in the aggregate and
separately stated) paid to or retained by the Securities Administrator
with respect to such Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(ix) the amount of Monthly Advances included in the distribution
on such Distribution Date and the aggregate amount of Monthly Advances
reported by the Servicer (and the Trustee as successor servicer or as
required under Section 8.02) as
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outstanding as of the close of business on the Determination Date
immediately preceding such Distribution Date;
(x) the number and aggregate Stated Principal Balances of Mortgage
Loans as reported to the Securities Administrator by the applicable
Servicer, (i) that are current, 30 days contractually delinquent, 60
days contractually delinquent, 90 days contractually delinquent or 120
days or more contractually delinquent (each to be calculated using the
Mortgage Bankers Association (MBA) method), (ii) that have become REO
property, (iii) as to which foreclosure proceedings have been commenced
and (iv) as to which the related borrower is subject to a bankruptcy
proceeding;
(xi) the total number and principal balance of any REO Properties
(and market value, if available) as of the close of business on the
Determination Date preceding such Distribution Date;
(xii) whether a Trigger Event has occurred and is continuing
(including the calculation demonstrating the existence of the Trigger
Event and the aggregate outstanding balance of all 60+ Day Delinquent
Mortgage Loans);
(xiii) the amount on deposit in the Excess Reserve Fund Account
(after giving effect to distributions on such Distribution Date);
(xiv) in the aggregate and for each Class of Certificates, the
aggregate amount of Applied Realized Loss Amounts incurred during the
preceding calendar month and aggregate Applied Realized Loss Amounts
through such Distribution Date;
(xv) the amount of any Net Monthly Excess Cash Flow on such
Distribution Date and the allocation thereof to the Certificateholders
with respect to Unpaid Interest Amounts;
(xvi) the Overcollateralized Amount and Specified
Overcollateralized Amount;
(xvii) the Prepayment Premiums collected by or paid by the
Servicer;
(xviii) the percentage equal to the aggregate realized losses
divided by the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date;
(xix) the amount distributed on the Class X and Class P
Certificates;
(xx) the amount of any Subsequent Recoveries for such Distribution
Date; and
(xxi) updated Mortgage Loan information, such as weighted average
interest rate, and weighted average remaining term.
(b) The Securities Administrator's responsibility for providing
the above statement to the Certificateholders, each Rating Agency, the Trustee
and the Depositor is limited to the availability, timeliness and accuracy of
the information derived from the Servicer and the Responsible Party. The
Securities Administrator shall provide the above statement via the
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Securities Administrator's internet website. Assistance in using the website
can be obtained by calling the Securities Administrator's investor relations
desk at (▇▇▇) ▇▇▇-▇▇▇▇. The Securities Administrator will also make a paper
copy of the above statement available upon request.
(c) Upon request, within a reasonable period of time after the end
of each calendar year, the Securities Administrator shall cause to be
furnished to each Person who at any time during the calendar year was a
Certificateholder, a statement containing the information set forth in clauses
(a)(i), (a)(ii), (a)(iii) and (a)(vii) of this Section 4.02 aggregated for
such calendar year or applicable portion thereof during which such Person was
a Certificateholder. Such obligation of the Securities Administrator shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Securities Administrator pursuant to any
requirements of the Code as from time to time in effect.
The Securities Administrator shall be entitled to rely on
information provided by third parties for purposes of preparing the foregoing
report, but shall not be responsible for the accuracy of such information.
(d) Pursuant to Section 5.02 of the Servicing Agreement, the
Servicer has agreed to provide certain monthly information to the Securities
Administrator. Pursuant to the Assignment Agreements, the Servicer shall
deliver to the Securities Administrator, on a monthly basis, no later than
each Remittance Advice Date a monthly remittance advice statement containing
the information required by the Securities Administrator to calculate and
provide the reports required by Section 4.02(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 (or the last day of the Due Period, as
applicable) (the "Servicer Remittance Report"). On an ongoing basis, the
Securities Administrator may reasonably request the Servicer to provide
additional information to be included in subsequent Servicer Remittance
Reports.
On the Closing Date, the Depositor shall request the Servicer to
furnish an individual loan accounting report, as of the last day of the Due
Period of each month, to document Mortgage Loan payment activity on an
individual Mortgage Loan basis. With respect to each month, the Depositor
shall request the Servicer to furnish the corresponding individual loan
accounting report (in electronic format) to be received by the Securities
Administrator no later than the Remittance Advice Date, which report shall
contain the following:
(i) with respect to each Monthly 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 the Servicing Agreement);
(ii) with respect to each Monthly Payment, the amount of such
remittance allocable to interest;
(iii) the individual and aggregate Stated Principal Balance of the
Mortgage Loans;
(iv) the aggregate of any expenses reimbursed to the Servicer
during the prior distribution period pursuant to the Servicing Agreement;
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(v) the number and aggregate outstanding principal balances of
Mortgage Loans (a) delinquent (1) 31 to 60 days, (2) 61 to 90 days, or (3) 91
days or more; (b) as to which foreclosure has commenced; and (c) as to which
REO Property has been acquired; and
(vi) any other information reasonably required by the Securities
Administrator to enable it to prepare the monthly statements referred to in
Section 4.02(a).
Section 4.03 Allocation of Applied Realized Loss Amounts. Any
Applied Realized Loss Amounts will be allocated to the most junior Class of
Subordinated Certificates then outstanding in reduction of the Class
Certificate Balance thereof. In the event, Applied Realized Loss Amounts are
allocated to any Class of Certificates, their Class Certificate Balance shall
be reduced by the amount so allocated and no funds shall be distributed with
respect to the written down amounts or with respect to interest or Basis Risk
Carry Forward Amounts on the written down amounts on that Distribution Date or
any future Distribution Dates, even if funds are otherwise available therefor.
Notwithstanding the foregoing, the Class Certificate Balance of
each Class of Subordinated Certificates that has been previously reduced by
Applied Realized Loss Amounts will be increased, in the order of seniority, by
the amount of the Subsequent Recoveries (but not in excess of the Applied
Realized Loss Amount allocated to the applicable Class of Subordinated
Certificates).
Section 4.04 Certain Matters Relating to the Determination of
LIBOR. LIBOR shall be calculated by the Securities Administrator in accordance
with the definition of "LIBOR." Until all of the LIBOR Certificates are paid
in full, the Securities Administrator will at all times retain at least four
Reference Banks for the purpose of determining LIBOR with respect to each
LIBOR Determination Date. The Securities Administrator initially shall
designate the Reference Banks (after consultation with the Depositor). Each
"Reference Bank" shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, shall not control, be
controlled by, or be under common control with, the Securities Administrator
and shall have an established place of business in London. If any such
Reference Bank should be unwilling or unable to act as such or if the
Securities Administrator should terminate its appointment as Reference Bank,
the Securities Administrator shall promptly appoint or cause to be appointed
another Reference Bank (after consultation with the Depositor). The Securities
Administrator shall have no liability or responsibility to any Person for (i)
the selection of any Reference Bank for purposes of determining LIBOR or (ii)
any inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
The Pass-Through Rate for each Class of LIBOR Certificates for
each Interest Accrual Period shall be determined by the Securities
Administrator on each LIBOR Determination Date so long as the LIBOR
Certificates are outstanding on the basis of LIBOR and the respective formulae
appearing in footnotes corresponding to the LIBOR Certificates in the table
relating to the Certificates in the Preliminary Statement. The Securities
Administrator shall not have any liability or responsibility to any Person for
its inability, following a good faith reasonable effort, to obtain quotations
from the Reference Banks or to determine the arithmetic mean referred to in
the definition of LIBOR, all as provided for in this Section 4.04 and the
57
definition of LIBOR. The establishment of LIBOR and each Pass-Through Rate for
the LIBOR Certificates by the Securities Administrator shall (in the absence
of manifest error) be final, conclusive and binding upon each Holder of a
Certificate and the Trustee.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates shall be
substantially in the forms attached hereto as exhibits. The Certificates shall
be issuable in registered form, in the minimum denominations, integral
multiples in excess thereof (except that one Certificate in each Class may be
issued in a different amount) and aggregate denominations per Class set forth
in the Preliminary Statement.
The Depositor hereby directs the Securities Administrator to
register the Class X and Class P Certificates in the name of the Depositor or
its designee. On a date as to which the Depositor notifies the Securities
Administrator, the Depositor hereby directs the Securities Administrator to
transfer the Class X and Class P Certificates in the name of the NIM Trustee
or such other name or names as the Depositor shall request, and to deliver the
Class X and Class P Certificates to the NIM Trustee, or to such other person
or persons as the Depositor shall request.
Subject to Section 10.02 respecting the final distribution on the
Certificates, on each Distribution Date the Securities Administrator shall
make distributions to each Certificateholder of record on the preceding Record
Date either (x) by wire transfer in immediately available funds to the account
of such holder at a bank or other entity having appropriate facilities
therefor as directed by that Certificateholder by written wire instructions
provided to the Securities Administrator or (y), in the event that no wire
instructions are provided to the Securities Administrator, by check mailed by
first class mail to such Certificateholder at the address of such holder
appearing in the Certificate Register.
The Certificates shall be executed by manual or facsimile
signature on behalf of the Securities Administrator by an authorized officer.
Certificates bearing the manual or facsimile signatures of individuals who
were, at the time such signatures were affixed, authorized to sign on behalf
of the Securities Administrator shall bind the Securities Administrator,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of any such Certificates
or did not hold such office at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless authenticated by the Securities Administrator by manual
signature, and such authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly executed
and delivered hereunder. All Certificates shall be dated the date of their
authentication. On the Closing Date, the Securities Administrator shall
authenticate the Certificates to be issued at the direction of the Depositor,
or any affiliate thereof.
Section 5.02 Certificate Register; Registration of Transfer and
Exchange of Certificates. (a) The Securities Administrator shall maintain or
cause to be maintained a Certificate Register for the Trust Fund in which,
subject to the provisions of subsections (b) and
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(c) below and to such reasonable regulations as it may prescribe, the
Securities Administrator shall provide for the registration of Certificates
and of transfers and exchanges of Certificates as herein provided. Upon
surrender for registration of transfer of any Certificate, the Securities
Administrator shall execute and deliver, in the name of the designated
transferee or transferees, one or more new Certificates of the same Class and
aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Securities
Administrator. Whenever any Certificates are so surrendered for exchange, the
Securities Administrator shall execute, authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
holder thereof or his attorney duly authorized in writing. In the event, the
Depositor or an Affiliate transfers the Class X Certificates, or a portion
thereof, to another Affiliate, it shall notify the Securities Administrator in
writing of the affiliated status of the transferee. The Securities
Administrator shall have no liability regarding the lack of notice with
respect thereto.
No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or
exchange shall be cancelled and subsequently destroyed by the Securities
Administrator in accordance with the Securities Administrator's customary
procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such state securities laws.
Except with respect to (i) the initial transfer of the Class X or Class P
Certificates on the Closing Date, (ii) the transfer of the Class X or Class P
Certificates to the NIM Issuer or the NIM Trustee, or (iii) a transfer of the
Class X or Class P Certificates to the Depositor or any Affiliate of the
Depositor, in the event that a transfer of a Private Certificate which is a
Physical Certificate is to be made in reliance upon an exemption from the
Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
transfer shall certify to the Securities Administrator in writing the facts
surrounding the transfer in substantially the form set forth in Exhibit H (the
"Transferor Certificate") and either (i) there shall be delivered to the
Securities Administrator a letter in substantially the form of Exhibit I (the
"Rule 144A Letter") or (ii) there shall be delivered to the Securities
Administrator at the expense of the transferor an Opinion of Counsel that such
transfer may be made without registration under the Securities Act. In the
event that a transfer of a Private Certificate which is a Book-Entry
Certificate is to be made in reliance upon an exemption from the Securities
Act and such laws, in order to assure compliance with the Securities Act and
such laws, the Certificateholder desiring to effect such transfer will be
deemed to have made as of the transfer date each of the certifications set
forth in the Transferor
59
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 Trustee and
the Securities Administrator shall cooperate with the Depositor in providing
the Rule 144A information referenced in the preceding sentence, including
providing to the Depositor such information regarding the Certificates, the
Mortgage Loans and other matters regarding the Trust Fund as the Depositor
shall reasonably request to meet its obligation under the preceding sentence.
Each Holder of a Private Certificate desiring to effect such transfer shall,
and does hereby agree to, indemnify the Trustee and the Depositor and the
Servicer against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.
Except with respect to (i) the initial transfer of the Class X or
Class P Certificates on the Closing Date, (ii) the transfer of the Class X or
Class P Certificates to the NIM Issuer or the NIM Trustee or (iii) a transfer
of the Class X or Class P Certificates to the Depositor or any Affiliate of
the Depositor, no transfer of an ERISA-Restricted Certificate shall be made
unless the Securities Administrator shall have received either (i) a
representation from the transferee of such Certificate acceptable to and in
form and substance satisfactory to the Securities Administrator (in the event
such Certificate is a Private Certificate or a Residual Certificate, such
requirement is satisfied only by the Securities Administrator's receipt of a
representation letter from the transferee substantially in the form of Exhibit
G), to the effect that such transferee is not an employee benefit plan or
arrangement subject to Section 406 of ERISA, a plan subject to Section 4975 of
the Code or a plan subject to any Federal, state or local law ("Similar Law")
materially similar to the foregoing provisions of ERISA or the Code, nor a
person acting on behalf of any such plan or arrangement nor using the assets
of any such plan or arrangement to effect such transfer (each such investor a
"Plan"), (ii) in the case of an ERISA-Restricted Certificate (other than a
Residual Certificate) that has been the subject of an ERISA-Qualifying
Underwriting, a representation that the purchaser is an insurance company that
is purchasing such Certificates with funds contained in an "insurance company
general account" (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption ("PTCE") 95-60) and that the purchase and holding
of such Certificates satisfy the requirements for exemptive relief under
Sections I and III of PTCE 95-60 or (iii) in the case of any ERISA-Restricted
Certificate presented for registration in the name of an employee benefit plan
subject to Title I of ERISA, a plan or arrangement subject to Section 4975 of
the Code (or comparable provisions of any subsequent enactments), or a plan
subject to Similar Law, or a trustee of any such plan or any other person
acting on behalf of any such plan or arrangement or using such plan's or
arrangement's assets, an Opinion of Counsel satisfactory to the Securities
Administrator and the Depositor, which Opinion of Counsel shall not be an
expense of the Trustee, the Depositor, the Securities Administrator or the
Trust Fund, addressed to the Securities Administrator and the Depositor, to
the effect that the purchase and holding of such ERISA-Restricted Certificate
will not constitute or result in a non-exempt prohibited transaction within
the meaning of ERISA, Section 4975 of the Code or any Similar Law and will not
subject the Trustee, the Depositor or
60
the Securities Administrator to any obligation in addition to those expressly
undertaken in this Agreement or to any liability. For purposes of the
preceding sentence, with respect to an ERISA-Restricted Certificate that is
not a Private Certificate or a Residual Certificate, in the event the
representation letter referred to in the preceding sentence is not furnished,
such representation shall be deemed to have been made to the Securities
Administrator by the transferee's (including an initial acquirer's) acceptance
of the ERISA-Restricted Certificates. In the event that such representation is
violated, or any attempt is made to transfer to a plan or arrangement subject
to Section 406 of ERISA, a plan subject to Section 4975 of the Code or a plan
subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement, without such
Opinion of Counsel, such attempted transfer or acquisition shall be void and
of no effect.
The Residual Certificates may not be sold to any employee benefit
plan subject to Title I of ERISA, any plan subject to Section 4975 of the
Code, or any plan subject to any Similar Law or any person investing on behalf
of or with plan assets of such plan.
The Securities Administrator shall have no duty to monitor
transfers of beneficial interests in any Book-Entry Certificate and shall not
be under liability to any Person for any registration of transfer of any ERISA
Restricted Certificate that is in fact not permitted by this Section 5.02(b)
or for making any payments due on such Certificate to the Holder thereof or
taking any other action with respect to such Holder under the provisions of
this Agreement so long as the transfer was registered by the Securities
Administrator in accordance with the foregoing requirements.
(c) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions, and the rights of each Person acquiring any Ownership Interest in
a Residual Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee;
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Securities Administrator shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to be
delivered to the Securities Administrator under subparagraph (b) above,
the Securities Administrator shall have been furnished with an affidavit
(a "Transfer Affidavit") of the initial owner or the proposed transferee
in the form attached hereto as Exhibit I;
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an
61
Ownership Interest in a Residual Certificate to any other Person if it
has actual knowledge that such Person is not a Permitted Transferee;
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
5.02(c) shall be absolutely null and void and shall vest no rights in
the purported Transferee. If any purported transferee shall become a
Holder of a Residual Certificate in violation of the provisions of this
Section 5.02(c), then the last preceding Permitted Transferee shall be
restored to all rights as Holder thereof retroactive to the date of
registration of Transfer of such Residual Certificate. Neither the
Securities Administrator nor the Trustee shall have any liability to any
Person for any registration of Transfer of a Residual Certificate that
is in fact not permitted by Section 5.02(b) and this Section 5.02(c) or
for making any payments due on such Certificate to the Holder thereof or
taking any other action with respect to such Holder under the provisions
of this Agreement. The Securities Administrator shall be entitled but
not obligated to recover from any Holder of a Residual Certificate that
was in fact not a Permitted Transferee at the time it became a Holder
or, at such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate at and after
either such time. Any such payments so recovered by the Securities
Administrator shall be paid and delivered by the Securities
Administrator to the last preceding Permitted Transferee of such
Certificate; and
(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Securities Administrator, all
information necessary to compute any tax imposed under Section 860E(e)
of the Code as a result of a Transfer of an Ownership Interest in a
Residual Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth
in this Section 5.02(c) shall cease to apply (and the applicable portions of
the legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Securities Administrator of an Opinion of
Counsel, which Opinion of Counsel shall not be an expense of the Trust Fund,
the Trustee, or the Securities Administrator, to the effect that the
elimination of such restrictions will not cause any Trust REMIC to fail to
qualify as a REMIC at any time that the Certificates are outstanding or result
in the imposition of any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel furnished to the Securities Administrator, is reasonably
necessary (a) to ensure that the record ownership of, or any beneficial
interest in, a Residual Certificate is not transferred, 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.
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(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, the Depository Participants holding
beneficial interests in the Book-Entry Certificates agree to initiate such
termination, the Securities Administrator shall notify all Certificate Owners,
through the Depository, of the occurrence of any such event and of the
availability of definitive, fully registered Certificates (the "Definitive
Certificates") to Certificate Owners requesting the same. Upon surrender to
the Securities Administrator of the related Class of Certificates by the
Depository, accompanied by the instructions from the Depository for
registration, the Securities Administrator shall issue the Definitive
Certificates. Neither the Depositor nor the Securities Administrator shall be
liable for any delay in delivery of such instruction and each may conclusively
rely on, and shall be protected in relying on, such instructions. The
Depositor shall provide the Securities Administrator with an adequate
inventory of Certificates to facilitate the issuance and transfer of
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.
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(f) Each Private Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer and accompanied by IRS Form W-8ECI, W-8BEN, W-8IMY (and
all appropriate attachments) or W-9 in form satisfactory to the Securities
Administrator, duly executed by the Certificateholder or his attorney duly
authorized in writing. Each Certificate presented or surrendered for
registration of transfer or exchange shall be canceled and subsequently
disposed of by the Securities Administrator in accordance with its customary
practice. No service charge shall be made for any registration of transfer or
exchange of Private Certificates, but the Securities Administrator may require
payment of a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer or exchange of Private
Certificates.
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Securities Administrator,
or the Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to
the Depositor, the Trustee and the Securities Administrator such security or
indemnity as may be required by them to hold each of them harmless, then, in
the absence of notice to the Securities Administrator that such Certificate
has been acquired by a protected purchaser, the Securities Administrator shall
execute, authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
Class, tenor and Percentage Interest. In connection with the issuance of any
new Certificate under this Section 5.03, the Securities Administrator may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Securities Administrator) connected
therewith. Any replacement Certificate issued pursuant to this Section 5.03
shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04 Persons Deemed Owners. The Trustee, the Depositor,
the Securities Administrator and any agent of the Depositor, the Securities
Administrator or the Trustee may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose of
receiving distributions as provided in this Agreement and for all other
purposes whatsoever, and none of the Trustee, the Securities Administrator,
the Depositor or any agent of the Depositor, the Securities Administrator or
the Trustee shall be affected by any notice to the contrary.
Section 5.05 Access to List of Certificateholders' Names and
Addresses. If three or more Certificateholders (a) request such information in
writing from the Securities Administrator, (b) state that such
Certificateholders desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates, and
(c) provide a copy of the communication which such Certificateholders propose
to transmit, or if the Depositor or the Servicer shall request such
information in writing from the Securities Administrator, then the Securities
Administrator shall, within ten (10) Business Days after the receipt of such
request, provide the Depositor, the 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
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reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 5.06 Maintenance of Office or Agency. The Securities
Administrator will maintain or cause to be maintained at its expense an office
or agency or agencies where Certificates may be surrendered for registration
of transfer or exchange. The Securities Administrator initially designates for
such purposes its office located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services - GSAA Home
Equity Trust 2006-13. The Securities Administrator will give prompt written
notice to the Certificateholders of any change in such location of any such
office or agency.
ARTICLE VI
THE DEPOSITOR
Section 6.01 Liabilities of the Depositor. The Depositor shall be
liable in accordance herewith only to the extent of the obligations
specifically and respectively imposed upon and undertaken by it herein.
Section 6.02 Merger or Consolidation of the Depositor. The
Depositor will keep in full effect its existence, rights and franchises as a
corporation or federally chartered savings bank, as the case may be, under the
laws of the United States or under the laws of one of the states thereof and
will each obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, or any
of the Mortgage Loans and to perform its respective duties under this
Agreement.
Any Person into which the Depositor may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the
Depositor shall be a party, or any person succeeding to the business of the
Depositor, shall be the successor of the Depositor, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 6.03 Limitation on Liability of the Depositor and Others.
Neither the Depositor nor any of its directors, officers, employees or agents
shall be under any liability to the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor or any such Person against any breach of
representations or warranties made by it herein or protect the Depositor or
any such Person from any liability which would otherwise be imposed by reasons
of willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The Depositor and any director, officer, employee or agent of the Depositor
may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Depositor and any director, officer, employee or agent of the Depositor
shall be indemnified by the Trust Fund and held harmless against any loss,
liability or expense incurred in connection with any audit, controversy or
judicial proceeding relating to a governmental taxing authority or any legal
action
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relating to this Agreement or the Certificates, other than any loss, liability
or expense incurred by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. The Depositor shall not be
under any obligation to appear in, prosecute or defend any legal action that
is not incidental to its respective duties hereunder and which in its opinion
may involve it in any expense or liability; provided, however, that the
Depositor may in its discretion undertake any such action (or direct the
Trustee to undertake such actions for the benefit of the Certificateholders)
that it may deem necessary or desirable in respect of this Agreement and the
rights and duties of the parties hereto and interests of the Trustee and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, the Depositor shall be entitled to be
reimbursed therefor out of the Distribution Account.
Section 6.04 Servicing Compliance Review. Promptly upon receipt
from the Servicer of its annual statement of compliance described in Section
6.04 of the Servicing Agreement and the accountant's report described in
Section 6.05 of the Servicing Agreement, the Securities Administrator shall
furnish a copy thereof to the Depositor. Promptly after the Depositor's
receipt thereof, the Depositor shall review the same and, if applicable,
consult with the Servicer as to the nature of any defaults by the Servicer in
the fulfillment of the Servicer's obligations under the Servicing Agreement.
Section 6.05 Option to Purchase Defaulted Mortgage Loans. The
Depositor shall have the option, but is not obligated, to purchase from the
Trust any Mortgage Loan that is ninety (90) days or more delinquent. The
purchase price therefor shall be 100% of the unpaid principal balance of such
Mortgage Loan, plus all related accrued and unpaid interest, and the amount of
any unreimbursed Servicing Advances made by the Servicer or the Trustee
related to the Mortgage Loan.
ARTICLE VII
SERVICER DEFAULT
Section 7.01 Events of Default. If an Event of Default described
in Section 10.01 of the Servicing Agreement shall occur, then, and in each and
every such case, so long as such Event of Default shall not have been
remedied, the Trustee at the request of the Depositor may, or at the direction
of Certificateholders entitled to a majority of the Voting Rights the Trustee
shall, by notice in writing to the Servicer (with a copy to each Rating
Agency), terminate all of the rights and obligations of the Servicer under the
Servicing Agreement and in and to the Mortgage Loans and the proceeds thereof.
The Holders of Certificates evidencing at least 66% of the Voting Rights of
Certificates affected by an Event of Default may waive such Event of Default;
provided, however, that (a) an Event of Default with respect to the Servicer's
obligation to make Monthly Advances may be waived only by all of the holders
of the Certificates affected by such Event of Default and (b) no such waiver
is permitted that would materially adversely affect any non consenting
Certificateholder. On and after the receipt by the Servicer of such written
notice of termination, all authority and power of the Servicer hereunder or
under the Servicing Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the Trustee. The Trustee is hereby
authorized and empowered to execute and
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deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise.
Except as described in this Section 7.01 and notwithstanding
Section 11.02 of the Servicing Agreement, the Trustee shall not terminate the
Servicer.
Section 7.02 Trustee to Act; Appointment of Successor. Within 120
days after the time the Trustee gives, and the Servicer receives a notice of
termination pursuant to Section 7.01, the Trustee shall, subject to and to the
extent provided in Section 7.03, and subject to the rights of the Depositor to
appoint a successor Servicer pursuant to this Section 7.02, be the successor
to the Servicer in its capacity as servicer under the Servicing Agreement and
the transactions set forth or provided for herein and in the Servicing
Agreement and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and
provisions of the Servicing Agreement and applicable law including the
obligation to make Monthly Advances or Servicing Advances pursuant to the
Servicing Agreement. As compensation therefor, the Trustee shall be entitled
to all funds relating to the Mortgage Loans that the Servicer would have been
entitled to charge to the Custodial Account if the Servicer had continued to
act under the Servicing Agreement including, if the Servicer was receiving the
Servicing Fee, the Servicing Fee and the income on investments or gain related
to the Custodial Account (in addition to income on investments or gain related
to the Distribution Account for the benefit of the Trustee). Notwithstanding
the foregoing, if the Trustee has become the successor to the Servicer in
accordance with this Section 7.02, the Trustee may, if it shall be unwilling
to so act, or shall, if it is prohibited by applicable law from making Monthly
Advances and Servicing Advances pursuant to the Servicing Agreement or if it
is otherwise unable to so act, appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
the appointment of which does not adversely affect the then current rating of
the Certificates by each Rating Agency, as the successor to the Servicer under
the Servicing Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer under the Servicing
Agreement. Any successor to the Servicer shall be an institution which is a
▇▇▇▇▇▇ ▇▇▇- and ▇▇▇▇▇▇▇ Mac-approved seller/servicer in good standing, which
has a net worth of at least $25,000,000, which is willing to service the
Mortgage Loans and which executes and delivers to the Depositor and the
Trustee an agreement accepting such delegation and assignment, containing an
assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Servicer (other than liabilities of the
Servicer under Section 8.01 of the Servicing Agreement incurred prior to
termination of the Servicer under Section 7.01), with like effect as if
originally named as a party to this Agreement; provided, that each Rating
Agency acknowledges that its rating of the Certificates in effect immediately
prior to such assignment and delegation will not be qualified or reduced, as a
result of such assignment and delegation. Pending appointment of a successor
to the Servicer hereunder, the Trustee, unless the Trustee is prohibited by
law from so acting, shall, subject to Section 7.03, act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out
of payments on Mortgage Loans as it, the Depositor, and such successor shall
agree; provided, however, that no such compensation shall be in excess of the
Servicing Fee Rate and amounts paid to the Servicer from investments. The
Trustee and such successor shall take
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such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Neither the Trustee nor any other successor to
the Servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or any
portion thereof or any failure to perform, or any delay in performing, any
duties or responsibilities hereunder, in either case caused by the failure of
the Servicer to deliver or provide, or any delay in delivering or providing,
any cash, information, documents or records to it.
Any successor to the Servicer shall give notice to the Mortgagors
of such change of Servicer, in accordance with applicable federal and state
law, and shall, during the term of its service as Servicer, maintain in force
the policy or policies that the Servicer is required to maintain pursuant to
the Servicing Agreement.
The Trustee shall require any successor to the Servicer to agree
that it shall not invest any funds in the Custodial Account, to the extent
permitted by the Servicing Agreement, unless such investments are Permitted
Investments.
Notwithstanding anything to the contrary contained in this
Agreement, the Depositor shall have the right to appoint a successor to the
Servicer upon termination of the servicing pursuant to Section 7.01. Any such
successor Servicer shall be required to satisfy the requirements of a
successor Servicer under this Section 7.02.
Section 7.03 Trustee to Act as Servicer. In the event that the
Servicer shall for any reason no longer be the Servicer pursuant to Section
7.01 (including by reason of an Event of Default), the Trustee or its
successor shall, subject to the rights of the Depositor to appoint a successor
Servicer pursuant to Section 7.02, thereupon assume all of the rights and
obligations of the Servicer hereunder arising thereafter (except that the
Trustee shall not be (i) liable for investment losses of the predecessor
Servicer pursuant to the Servicing Agreement or any acts or omissions of the
predecessor Servicer thereunder, (ii) obligated to effectuate repurchases of
Mortgage Loans under the Servicing Agreement, including but not limited to
repurchases pursuant to Section 5.04 of the Servicing Agreement, (iii)
responsible for expenses of the predecessor Servicer under the Servicing
Agreement or (iv) deemed to have made any representations and warranties of
the Servicer under the Servicing Agreement).
Section 7.04 Notification to Certificateholders. (a) Upon any
termination of or appointment of a successor to the Servicer, the Securities
Administrator shall give prompt written notice thereof to Certificateholders
and to each Rating Agency.
(b) Promptly after the occurrence of any Event of Default, the
Securities Administrator shall transmit by mail to all Certificateholders and
each Rating Agency notice of each such Event of Default hereunder known to the
Securities Administrator, unless such Event of Default shall have been cured
or waived.
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ARTICLE VIII
CONCERNING THE TRUSTEE AND THE CUSTODIANS
Section 8.01 Duties of the Trustee and the Custodians. The
Trustee, before the occurrence of an Event of Default and after the curing of
all 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 an Event of Default has occurred and remains uncured, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement,
and use the same degree of care and skill in their exercise as a prudent
person would exercise or use under the circumstances in the conduct of such
person's own affairs.
The Trustee and the Custodians, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee or the Custodians, as applicable, that
are specifically required to be furnished pursuant to any provision of this
Agreement shall examine them to determine whether on their face they are in
the form required by this Agreement, or with respect to the documents in the
respective Custodial Files whether they satisfy the review criteria set forth
in Section 2.02. Neither the Trustee nor the Custodians shall be responsible
for the accuracy or content of any resolution, certificate, statement,
opinion, report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the
Trustee or the Custodians from liability for its own negligent action, its own
negligent failure to act or its own bad faith or willful misfeasance;
provided, however, that:
(a) unless an Event of Default of which a Responsible Officer of
the Trustee obtains actual knowledge has occurred and is continuing, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable except
for the performance of the duties and obligations specifically set forth in
this Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee, and the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement which it believed in good
faith to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered, or omitted to be taken by it in good faith in accordance with
the direction of the Holders of Certificates evidencing not less than 25% of
the Voting Rights of Certificates relating to the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Agreement.
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Section 8.02 Administration of the Servicer. The Trustee shall (i)
give notice and take such other actions as required under Article VII in the
event the Servicer breaches its obligations to service the Mortgage Loans as
set forth in Section 7.01 and (ii) as successor Servicer under Section 7.02,
make or cause to be made Servicing Advances or Monthly Advances in accordance
with the Servicing Agreement in the event the Servicer fails to do so.
Notwithstanding the foregoing, the Trustee, as successor Servicer or otherwise
shall not be required to make any Nonrecoverable Servicing Advance or
Nonrecoverable Monthly Advance. The Trustee shall furnish to the Servicer any
powers-of-attorney in the form of Exhibit R or other such documentation (as
may be provided from time to time and in form acceptable to the Trustee),
necessary and appropriate to enable the Servicer to service and administer the
related Mortgage Loans and REO Property.
Section 8.03 Certain Matters Affecting the Trustee and the
Custodians. Except as otherwise provided in Section 8.01:
(a) the Trustee and the Custodians may request and rely upon and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, Opinion of Counsel, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties
and the Trustee and the Custodians shall have no responsibility to ascertain
or confirm the genuineness of any signature of any such party or parties;
(b) before taking any action under this Agreement, the Trustee and
the Custodians may consult with counsel, financial advisers or accountants and
the advice of any such counsel, financial advisers or accountants and any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good
faith and in accordance with such advice or Opinion of Counsel;
(c) the Trustee and the Custodians shall not be liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(d) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond
or other paper or document, unless requested in writing so to do by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to
each Class of Certificates; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of
the Trustee, not assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require indemnity satisfactory to the
Trustee against such cost, expense or liability as a condition to taking any
such action. The reasonable expense of every such examination shall be paid by
the Servicer or, if paid by the Trustee, shall be repaid by the Servicer upon
demand from the Servicer's own funds;
(e) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the
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Trustee shall not be responsible for any misconduct or negligence on the part
of any agents, accountants or attorneys appointed with due care by it
hereunder;
(f) neither the Trustee nor the Custodians shall be required to
risk or expend its own funds or otherwise incur any financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers hereunder if it shall have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to it against such risk or
liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment
of funds pursuant to this Agreement (other than as issuer of the investment
security);
(h) unless a Responsible Officer of the Trustee has actual
knowledge of the occurrence of an Event of Default described in Section 10.01
of the Servicing Agreement (including failure by the Servicer to remit funds
on the Remittance Date to the Securities Administrator or to make Monthly
Advances), the Trustee shall not be deemed to have knowledge of an Event of
Default, until a Responsible Officer of the Trustee shall have received
written notice thereof;
(i) the Trustee shall be under no obligation to exercise any of
the trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to this
Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities which may be incurred therein or thereby;
(j) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful misconduct in
the performance of such act;
(k) the Trustee shall not be required to give any bond or surety
in respect of the execution of the Trust Fund created hereby or the powers
granted hereunder;
(l) notwithstanding anything to the contrary in the Servicing
Agreement, the Trustee shall not consent to the Servicer's request of
assigning the Servicing Agreement or the servicing rights thereunder to any
other party;
(m) the Trustee and the Custodians shall not be accountable and
shall have no liability for any acts or omissions by the Securities
Administrator or other party hereto; and
(n) in no event shall Deutsche Bank, in its capacity as Trustee
and a Custodian hereunder, or any other Custodian hereunder, be liable for
special, indirect or consequential damages.
Section 8.04 Trustee and Custodians Not Liable for Certificates or
Mortgage Loans. The recitals contained herein and in the Certificates shall be
taken as the statements of the Depositor and neither the Trustee nor the
Custodians assumes any responsibility for their correctness. The Trustee and
the Custodians make no representations as to the validity or
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sufficiency of this Agreement or of the Certificates or of any Mortgage Loan
or related document. Neither the Trustee nor the Custodians shall be
accountable for the use or application by the Depositor, the Servicer or the
Securities Administrator of any funds paid to the Depositor, the Servicer or
the Securities Administrator in respect of the Mortgage Loans or deposited in
or withdrawn from the Custodial Account or the Distribution Account by the
Depositor, the Servicer or the Securities Administrator.
The Trustee shall have no responsibility (i) for filing or
recording any financing or continuation statement in any public office at any
time or to otherwise perfect or maintain the perfection of any security
interest or lien granted to it hereunder (unless the Trustee shall have become
and remains the successor Servicer) (ii) to see to any insurance (unless the
Trustee shall have become the successor Servicer), or (iii) to confirm or
verify the contents of any reports or certificates of the Servicer or the
Securities Administrator delivered to the Trustee pursuant to this Agreement
believed by the Trustee to be genuine and to have been signed or presented by
the proper party or parties.
Section 8.05 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Certificates with the same rights as it would have if it were not the Trustee.
Section 8.06 Trustee's Fees and Expenses. As compensation for its
activities under this Agreement, the Trustee shall be paid an on-going monthly
or annual fee, as applicable, by the Securities Administrator pursuant to a
separate agreement. The Trustee shall have no lien on the Trust Fund for the
payment of such fees. The Trustee shall be entitled to be reimbursed, from
funds on deposit in the Distribution Account, amounts sufficient to indemnify
and hold harmless the Trustee and any director, officer, employee, or agent of
the Trustee against any loss, liability, or expense (including reasonable
attorneys' fees) incurred 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
the Servicer's obligations in connection with the Servicing Agreement for
which the Servicer has performed its obligation to indemnify the Trustee
pursuant to Servicing Agreement, (ii) resulting from any breach of the
Responsible Party's obligations in connection with any Sale Agreement for
which it has performed its obligation to indemnify the Trustee pursuant to the
Sale Agreement, or (iii) incurred because of willful misfeasance, bad faith,
or negligence in the performance of any of the Trustee's duties under this
Agreement. This indemnity shall survive the termination of this Agreement or
the resignation or removal of the Trustee under this Agreement. Without
limiting the foregoing, except for any expense, disbursement, or advance
arising from the Trustee's negligence, bad faith, or willful misfeasance, the
Trust Fund shall pay 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:
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(A) the reasonable compensation, expenses, and disbursements
of its counsel not associated with the closing of the issuance of
the Certificates, and
(B) the reasonable compensation, expenses, and disbursements
of any accountant, engineer, or appraiser that is not regularly
employed by the Trustee, to the extent that the Trustee must
engage them to perform services under this Agreement.
Except as otherwise provided in this Agreement, the Trustee shall
not be entitled to payment or reimbursement for any routine ongoing expenses
incurred by the Trustee in the ordinary course of its duties as Trustee under
this Agreement or for any other expenses.
Section 8.07 Eligibility Requirements for the Trustee. The Trustee
hereunder shall at all times be a corporation, banking association or other
association organized and doing business under the laws of a state or the
United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority and the
appointment of which would not cause any of the Rating Agencies to reduce or
withdraw their respective then current ratings of the Certificates (or having
provided such security from time to time as is sufficient to avoid such
reduction) as evidenced in writing by each Rating Agency. If such corporation
or association publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 8.07 the combined capital and
surplus of such corporation or association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with this Section 8.07, the Trustee shall resign immediately in the
manner and with the effect specified in Section 8.08. The entity serving as
Trustee may have normal banking and trust relationships with the Depositor and
its affiliates or with the Servicer and its affiliates; provided, however,
that such entity cannot be an affiliate of the Depositor or of the Servicer
other than the Trustee in its role as successor to the Servicer.
Section 8.08 Resignation and Removal of the Trustee. The Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice of resignation to the Depositor, the Servicer, the
Securities Administrator and each Rating Agency not less than sixty (60) days
before the date specified in such notice, when, subject to Section 8.09, such
resignation is to take effect, and acceptance by a successor trustee in
accordance with Section 8.09 meeting the qualifications set forth in Section
8.07. If no successor trustee meeting such qualifications shall have been so
appointed and have accepted appointment within thirty (30) days after the
giving of such notice or resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
If at any time (i) the Trustee shall cease to be eligible in
accordance with Section 8.07 and shall fail to resign after written request
thereto by the Depositor, (ii) the Trustee shall become incapable of acting,
or shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or
of its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, (iii)(A) a tax is imposed with
respect to the Trust Fund by any state in which the
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Trustee or the Trust Fund is located and (B) the imposition of such tax would
be avoided by the appointment of a different trustee, or (iv) the Trustee
fails to comply with its obligations under the last sentence of Section 9.04
in the preceding paragraph, Section 8.10 or Article XII and such failure is
not remedied within the lesser of ten (10) calendar days or such period in
which the applicable Exchange Act Report can be timely filed (without taking
into account any extensions), then, in the case of clauses (i) through (iv),
the Depositor may remove the Trustee and appoint a successor trustee by
written instrument, in duplicate, one copy of which shall be delivered to the
Trustee and one copy to the successor trustee.
The Holders of Certificates entitled to a majority of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in duplicate, signed by such Holders or
their attorneys in fact duly authorized, one complete set of which shall be
delivered to the Trustee so removed and one complete set to the successor so
appointed. The successor trustee shall notify each Rating Agency of any
removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to this Section 8.08 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
8.09.
Section 8.09 Successor Trustee. Any successor trustee appointed as
provided in Section 8.08 shall execute, acknowledge and deliver to the
Depositor and to its predecessor trustee an instrument accepting such
appointment hereunder and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The Depositor and the
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.09 unless at the time of its acceptance, the successor trustee is
eligible under Section 8.07 and its appointment does not adversely affect the
then current rating of the Certificates and has provided to the Depositor in
writing and in form and substance reasonably satisfactory to the Depositor,
all information reasonably requested by the Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to a
replacement Trustee.
Upon acceptance of appointment by a successor trustee as provided
in this Section 8.09, the Depositor shall mail notice of the succession of
such trustee hereunder to all Holders of Certificates and the Custodians. If
the Depositor fails to mail such notice within ten (10) days after acceptance
of appointment by the successor trustee, the successor trustee shall cause
such notice to be mailed at the expense of the Depositor.
Section 8.10 Merger or Consolidation of the Trustee or the
Custodians. Any corporation into which the Trustee or the Custodians, as
applicable, 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 or the Custodians, as applicable, shall be a party, or any
corporation succeeding to the business of the Trustee or the Custodians, as
applicable, shall be
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the successor of the Trustee or the Custodians, as applicable, hereunder;
provided, that such corporation shall be eligible under Section 8.07 without
the execution or filing of any paper or further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 8.11 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time
be located, the Trustee shall have the power and shall execute and deliver all
instruments to appoint one or more Persons to act as co-trustee or co-trustees
jointly with the Trustee, or separate trustee or separate trustees, of all or
any part of the Trust Fund, and to vest in such Person or Persons, in such
capacity and for the benefit of the Certificateholders, such title to the
Trust Fund or any part thereof, whichever is applicable, and, subject to the
other provisions of this Section 8.11, such powers, duties, obligations,
rights and trusts as the Trustee may consider appropriate. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.09 and no notice to Certificateholders
of the appointment of any co-trustee or separate trustee shall be required
under Section 8.09.
Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(a) To the extent necessary to effectuate the purposes of this
Section 8.11, all rights, powers, duties and obligations conferred or imposed
upon the Trustee, except for the obligation of the Trustee (as successor
Servicer) under this Agreement to advance funds on behalf of the 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 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.
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Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees,
when and as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee and a copy thereof given to the Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute
the Trustee its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
The Trustee shall execute and deliver to the Servicer, upon its
request, any court pleadings, requests for trustee's sale or other documents
necessary or desirable to (i) the foreclosure or trustee's sale with respect
to a Mortgaged Property; (ii) any legal action brought to obtain judgment
against any Mortgagor on the Mortgage Note or Mortgage; (iii) obtain a
deficiency judgment against the Mortgagor; or (iv) enforce any other rights or
remedies provided by the Mortgage Note or Mortgage or otherwise available at
law or equity.
Section 8.12 Tax Matters. It is intended that the assets with
respect to which any REMIC election pertaining to the Trust Fund is to be
made, as set forth in the Preliminary Statement, shall constitute, and that
the conduct of matters relating to such assets shall be such as to qualify
such assets as, a "real estate mortgage investment conduit" as defined in, and
in accordance with, the REMIC Provisions. In furtherance of such intention,
the Securities Administrator covenants and agrees that it shall act as agent
(and the Securities Administrator is hereby appointed to act as agent) on
behalf of each REMIC described in the Preliminary Statement and that in such
capacity it shall:
(a) prepare and file, in a timely manner, a U.S. Real Estate
Mortgage Investment Conduit (REMIC) Income Tax Return (Form 1066 or any
successor form adopted by the Internal Revenue Service) and prepare and file
with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with
respect to each Trust REMIC containing such information and at the times and
in the manner as may be required by the Code or state or local tax laws,
regulations, or rules, and furnish to Certificateholders the schedules,
statements or information at such times and in such manner as may be required
thereby;
(b) within thirty (30) days of the Closing Date, apply for an
employer identification number from the Internal Revenue Service via Form SS-4
or any other acceptable method for all tax entities and shall also furnish to
the Internal Revenue Service, on Form 8811 or as otherwise may be required by
the Code, the name, title, address, and telephone number of
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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 Trust REMIC be treated as a REMIC
on the federal tax return for its first taxable year (and, if necessary, under
applicable state law);
(d) prepare and forward to the Certificateholders and to the
Internal Revenue Service and, if necessary, state tax authorities, all
information returns and reports as and when required to be provided to them in
accordance with the REMIC Provisions, including the calculation of any
original issue discount using the prepayment assumption (as described in the
Prospectus Supplement);
(e) provide information necessary for the computation of tax
imposed on the transfer of a Residual Certificate to a Person that is not a
Permitted Transferee (a "Non Permitted Transferee"), or an agent (including a
broker, nominee or other middleman) of a Non Permitted Transferee, or a pass
through entity in which a Non Permitted Transferee is the record holder of an
interest (the reasonable cost of computing and furnishing such information may
be charged to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so
as to maintain the status of each Trust REMIC as a REMIC under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take
any action that would cause the termination of the REMIC status of any Trust
REMIC created hereunder;
(h) pay, from the sources specified in the last paragraph of this
Section 8.12, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on any Trust REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Securities Administrator or any other appropriate Person
from contesting any such tax in appropriate proceedings and shall not prevent
the Securities Administrator from withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings);
(i) cause federal, state or local income tax or information
returns to be signed by the Securities Administrator or, if required by
applicable tax law, the Trustee or such other person as may be required to
sign such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to each of the Trust REMICs,
including the income, expenses, assets, and liabilities thereof on a calendar
year basis and on the accrual method of accounting and the fair market value
and adjusted basis of the assets determined at such intervals as may be
required by the Code, as may be necessary to prepare the foregoing returns,
schedules, statements or information; and
(k) as and when necessary and appropriate, represent each Trust
REMIC in any administrative or judicial proceedings relating to an examination
or audit by any
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governmental taxing authority, request an administrative adjustment as to any
taxable year of each Trust REMIC, enter into settlement agreements with any
governmental taxing agency, extend any statute of limitations relating to any
tax item of any Trust REMIC, and otherwise act on behalf of each Trust REMIC
in relation to any tax matter or controversy involving it.
The Holder of the largest Percentage Interest of the Class R,
Class RC and Class RX Certificates shall act as Tax Matters Person for the
Lower-Tier REMIC and the Middle-Tier REMIC, the Upper-Tier REMIC and the Class
X REMIC, respectively, within the meaning of Treasury Regulations Section
1.860F-4(d), and the Securities Administrator is hereby designated as agent of
such Certificateholder for such purpose (or if the Securities Administrator is
not so permitted, such Holder shall be the Tax Matters Person in accordance
with the REMIC Provisions). In such capacity, the Securities Administrator
shall, as and when necessary and appropriate, represent each Trust REMIC in
any administrative or judicial proceedings relating to an examination or audit
by any governmental taxing authority, request an administrative adjustment as
to any taxable year of each Trust REMIC, enter into settlement agreements with
any governmental taxing agency, extend any statute of limitations relating to
any tax item of any Trust REMIC, and otherwise act on behalf of each Trust
REMIC in relation to any tax matter or controversy involving it.
The Securities Administrator shall treat the rights of the Class P
Certificateholders to receive Prepayment Premiums, the rights of the Class X
Certificateholders to receive amounts in the Excess Reserve Fund Account
(subject to the obligation to pay Basis Risk Carry Forward Amounts) and the
rights of the Principal Certificateholders to receive Basis Risk Carry Forward
Amounts (as calculated in the Preliminary Statement) as the beneficial
ownership interests in a grantor trust and not as an obligations of any REMIC
created hereunder, for federal income tax purposes. The Securities
Administrator shall file or cause to be filed with the Internal Revenue
Service Form 1041 or such other form as may be applicable and shall furnish or
cause to be furnished, to the Class X Certificateholders, the Class P
Certificateholders and the Principal Certificateholders, the respective
amounts described above that are received, in the time or times and in the
manner required by the Code.
To enable the Securities Administrator to perform its duties under
this Agreement, the Depositor shall provide to the Securities Administrator
within ten (10) days after the Closing Date all information or data that the
Securities Administrator requests in writing and determines to be relevant for
tax purposes to the valuations and offering prices of the Certificates,
including the price, yield, prepayment assumption, and projected cash flows of
the Certificates and the Mortgage Loans. Moreover, the Depositor shall provide
information to the Securities Administrator concerning the value, if any, to
each Class of Certificates of the right to receive Basis Risk Carry Forward
Amounts from the Excess Reserve Fund Account. 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.
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If any tax is imposed on "prohibited transactions" of any Trust
REMIC as defined in Section 860F(a)(2) of the Code, on the "net income from
foreclosure property" of the Lower-Tier REMIC as defined in Section 860G(c) of
the Code, on any contribution to any Trust REMIC after the Startup Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed,
including any minimum tax imposed on any Trust REMIC pursuant to Sections
23153 and 24874 of the California Revenue and Taxation Code, if not paid as
otherwise provided for herein, the tax shall be paid by (i) the Trustee or the
Securities Administrator, as applicable if such tax arises out of or results
from negligence of the Trustee or the Securities Administrator, as applicable,
in the performance of any of its obligations under this Agreement, (ii) the
Servicer, in the case of any such minimum tax, and otherwise if such tax
arises out of or results from a breach by the Servicer of any of its
obligations under the Servicing Agreement, (iii) the Responsible Party if such
tax arises out of or results from the Responsible Party's obligation to
repurchase a Mortgage Loan pursuant to the applicable Sale Agreement or (iv)
in all other cases, or if the Trustee, the Securities Administrator, the
Servicer or the Responsible Party fails to honor its obligations under the
preceding clause (i), (ii), or (iii), any such tax will be paid with amounts
otherwise to be distributed to the Certificateholders, as provided in Section
4.01(a).
For as long as each Trust REMIC shall exist, the Securities
Administrator shall act as specifically required herein, and the Securities
Administrator shall comply with any directions of the Depositor or the
Servicer stating that such directions are being given to assure such
continuing treatment. In particular, the Securities Administrator shall not
(a) sell or authorize the sale of all or any portion of the Mortgage Loans or
of any investment of deposits in an Account unless such sale is as a result of
a purchase or repurchase of the Mortgage Loans pursuant to this Agreement or
(b) accept any contribution to any Trust REMIC after the Startup Day without
receipt of an Opinion of Counsel that such action described in clause (a) or
(b) will not result in the imposition of a tax on any Trust REMIC or cause any
Trust REMIC to fail to qualify as a REMIC at any time that any Certificates
are outstanding.
Section 8.13 [Reserved]
Section 8.14 Tax Classification of the Excess Reserve Fund Account
and the Interest Rate Corridor Agreement. For federal income tax purposes, the
Securities Administrator shall treat the Excess Reserve Fund Account and the
Interest Rate Corridor Agreement as beneficially owned by the holder of the
Class X Certificates and shall treat such portion of the Trust Fund as a
grantor trust under subpart E, Part I of subchapter J of the Code. The
Securities Administrator shall treat the rights that each Class of Principal
Certificates has to receive payments of Basis Risk Carry Forward Amounts from
the Excess Reserve Fund Account as rights to receive payments under an
interest rate cap contract written by the Class X Certificateholders in favor
of each Class. Accordingly, each Class of Principal Certificates will comprise
two components--a regular interest in the Upper-Tier REMIC and an interest in
an interest rate cap contract, and the Class X Certificates will be comprised
of two components--a regular interest in the Class X REMIC and an interest in
the Excess Reserve Fund Account subject to the obligation to pay Basis Risk
▇▇▇▇ Forward Amounts. The Securities Administrator shall allocate the issue
price for a Class of Certificates among these components for purposes of
determining the issue price of the Upper-Tier Regular Interest component based
on information received from the Depositor. Unless otherwise advised by the
Depositor in writing, for federal income tax purposes, the Securities
Administrator is hereby directed to assign a value of zero to
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the right of each Holder of a Principal Certificate to receive the related
Basis Risk Carry Forward Amount for purposes of allocating the purchase price
of an initial Principal Certificateholder between such right and the related
Upper-Tier Regular Interest.
Section 8.15 Custodial Responsibilities. Each of the Custodians
shall provide access to the Mortgage Loan documents in possession of such
Custodian regarding the related Mortgage Loans and REO Property and the
servicing thereof to the Trustee, the Certificateholders, the FDIC, and the
supervisory agents and examiners of the FDIC, such access being afforded only
upon two (2) Business Days prior written request and during normal business
hours at the office of such Custodian; provided, however, that, unless
otherwise required by law or any regulatory or administrative agency
(including the FDIC), such Custodian shall not be required to provide access
to such records and documentation if the provision thereof would violate the
legal right to privacy of any Mortgagor. Each of the Custodians shall allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at the expense of
the Trust that covers such Custodians actual costs.
Upon receipt of a request for release by the Servicer
substantially in the form of Exhibit ▇-▇, ▇-▇ ▇▇ ▇-▇ hereto, the applicable
Custodian shall release within five (5) Business Days the related Mortgage
File to the Servicer and the Trustee shall execute and deliver to the
Servicer, without recourse, a request for reconveyance, deed of reconveyance
or release or satisfaction of mortgage or such instrument releasing the lien
of the Mortgage (furnished by the Servicer), together with the Mortgage Note.
Each of the Custodians may resign at any time or may be terminated
by the Trustee with cause, in each case, upon sixty (60) days written notice
to the Servicer, the Depositor and the Securities Administrator, in which
event the Depositor will be obligated to appoint a successor. If no successor
has been appointed and has accepted appointment within sixty (60) days after
the resignation or termination of such Custodian, such Custodian may petition
any court of competent jurisdiction for appointment of a successor.
The Securities Administrator, pursuant to a separate agreement,
shall compensate from its own funds the Custodians for their respective
activities under this Agreement. The Custodians shall have no lien on the
Trust Fund for the payment of such fees. The Custodians shall be entitled to
be reimbursed, from funds on deposit in the Distribution Account, amounts
sufficient to indemnify and hold harmless each of the Custodians and any
director, officer, employee, or agent of a Custodian against any loss,
liability, or expense (including reasonable attorneys' fees) incurred in
connection with any claim or legal action relating to:
(a) this Agreement;
(b) the Certificates; or
(c) the performance of any of such Custodian's duties under this
Agreement,
other than any loss, liability, or expense (i) resulting from any
breach of the Servicer's obligations in connection with the Servicing
Agreement for which the Servicer has performed its obligation to indemnify
such Custodian pursuant to the Servicing Agreement, (ii)
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resulting from any breach of the Responsible Party's obligations in connection
with a Sale Agreement for which the Responsible Party has performed its
obligation to indemnify such Custodian pursuant to such Sale Agreement, or
(iii) incurred because of willful misfeasance, bad faith, or negligence in the
performance of any of such Custodian's duties under this Agreement. This
indemnity shall survive the termination of this Agreement or the earlier
resignation or removal of the Custodians.
ARTICLE IX
CONCERNING THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of the Securities Administrator. The
Securities Administrator shall undertake to perform such duties and only such
duties as are specifically set forth in this Agreement.
The Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Securities Administrator that are specifically
required to be furnished pursuant to any provision of this Agreement shall
examine them to determine whether they are in the form required by this
Agreement; provided, however, that the Securities Administrator shall not be
responsible for the accuracy or content of any such resolution, certificate,
statement, opinion, report, document, order or other instrument. If any such
instrument is found not to conform in any material respect to the requirements
of this Agreement, the Securities Administrator shall notify the
Certificateholders of such non conforming instrument in the event the
Securities Administrator, after so requesting, does not receive a
satisfactorily corrected instrument.
No provision of this Agreement shall be construed to relieve the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however,
that:
(i) the duties and obligations of the Securities Administrator
shall be determined solely by the express provisions of this Agreement,
the Securities Administrator shall not be liable except for the
performance of such duties and obligations as are specifically set forth
in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Securities Administrator and the
Securities Administrator may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Securities Administrator
and conforming to the requirements of this Agreement which it believed
in good faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
(ii) the Securities Administrator shall not be liable for an error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Securities Administrator, unless it shall be
conclusively determined by a court of competent jurisdiction, such
determination no longer subject to appeal, that the Securities
Administrator was negligent in ascertaining the pertinent facts;
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(iii) the Securities Administrator shall not be liable with
respect to any action or inaction taken, suffered or omitted to be taken
by it in good faith in accordance with the direction of Holders of
Certificates evidencing not less than 25% of the Voting Rights of
Certificates relating to the time, method and place of conducting any
proceeding for any remedy available to the Securities Administrator, or
exercising or omitting to exercise any trust or power conferred upon the
Securities Administrator under this Agreement; and
(iv) the Securities Administrator shall not be accountable, shall
have no liability and makes no representation as to any acts or
omissions hereunder of the Trustee.
Section 9.02 Certain Matters Affecting the Securities
Administrator. Except as otherwise provided in Section 9.01:
(a) the Securities Administrator may request and conclusively rely
upon and shall be fully protected in acting or refraining from acting
upon any resolution, Officer's Certificate, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties and the Securities Administrator shall have no
responsibility to ascertain or confirm the genuineness of any signature
of any such party or parties;
(b) the Securities Administrator may consult with counsel,
financial advisers or accountants and the advice of any such counsel,
financial advisers or accountants and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(c) the Securities Administrator shall not be liable for any
action or inaction taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(d) the Securities Administrator shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing so to do by Holders of Certificates evidencing not
less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that if the payment within a reasonable
time to the Securities Administrator of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Securities Administrator, not
reasonably assured to the Securities Administrator by the security
afforded to it by the terms of this Agreement, the Securities
Administrator may require reasonable indemnity against such expense or
liability as a condition to so proceeding;
(e) the Securities Administrator may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or
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attorneys or a custodian and the Securities Administrator shall not be
responsible for any misconduct or negligence on the part of any such
agent, attorney or custodian appointed by the Securities Administrator
with due care;
(f) the Securities Administrator shall not be required to risk or
expend its own funds or otherwise incur any financial liability (other
than with respect to the investment of funds in the Distribution Account
not made at the direction of the Depositor during the Securities
Administrator Float Period)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 Securities Administrator shall be under no obligation to
exercise any of the trusts, rights or powers vested in it by this
Agreement or to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Securities
Administrator reasonable security or indemnity satisfactory to the
Securities Administrator against the costs, expenses and liabilities
which may be incurred therein or thereby;
(h) the Securities Administrator shall have no obligation to
appear in, prosecute or defend any legal action that is not incidental
to its duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that the Securities
Administrator may in its discretion undertake any such action that it
may deem necessary or desirable in respect of this Agreement and the
rights and duties of the parties hereto and the interests of the
Trustee, the Securities Administrator and the Certificateholders
hereunder. In such event, the legal expenses and costs of such action
and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Securities Administrator shall be
entitled to be reimbursed therefor out of the Custodial Account;
(i) in no event shall the Securities Administrator be liable for
special, indirect or consequential damages; and
(j) the Securities Administrator is authorized and directed to
execute the Interest Rate Corridor Agreement.
The Securities Administrator shall have no duty (A) to cause any
recording, filing, or depositing of this Agreement or any agreement referred
to herein or any financing statement or continuation statement evidencing a
security interest, or to see to the maintenance of any such recording or
filing or depositing or to any rerecording, refiling or redepositing thereof,
(B) to cause the provision of any insurance or (C) to cause the payment or
discharge of any tax, assessment, or other governmental charge or any lien or
encumbrance of any kind owing with respect to, assessed or levied against, any
part of the Trust Fund other than from funds available in the Distribution
Account.
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Section 9.03 Securities Administrator Not Liable for Certificates
or Mortgage Loans. The recitals contained herein and in the Certificates shall
be taken as the statements of the Depositor or the Transferor, as the case may
be, and the Securities Administrator assumes no responsibility for their
correctness. The Securities Administrator makes no representations as to the
validity or sufficiency of this Agreement, the Interest Rate Corridor
Agreement or of the Certificates or of any Mortgage Loan or related document
other than with respect to the Securities Administrator's execution and
authentication of the Certificates. The Securities Administrator shall not be
accountable for the use or application by the Depositor of any funds paid to
the Depositor in respect of the Mortgage Loans or deposited in or withdrawn
from the Custodial Account by the Depositor.
The Securities Administrator executes the Certificates not in its
individual capacity but solely as Securities Administrator of the Trust Fund
created by this Agreement, in the exercise of the powers and authority
conferred and vested in it by this Agreement. Each of the undertakings and
agreements made on the part of the Securities Administrator on behalf of the
Trust Fund in the Certificates is made and intended not as a personal
undertaking or agreement by the Securities Administrator but is made and
intended for the purpose of binding only the Trust Fund.
Section 9.04 Securities Administrator May Own Certificates. The
Securities Administrator in its individual or any other capacity may become
the owner or pledgee of Certificates and may transact business with the
parties hereto and their Affiliates with the same rights as it would have if
it were not the Securities Administrator.
Section 9.05 Securities Administrator's Fees and Expenses. The
Securities Administrator shall be entitled to the investment income earned on
amounts in the Distribution Account during the Securities Administrator Float
Period. The Securities Administrator and any director, officer, employee,
agent or "control person" within the meaning of the Securities Act of 1933, as
amended, and the Securities Exchange of 1934, as amended ("Control Person"),
of the Securities Administrator shall be indemnified by the Trust and held
harmless against any loss, liability or expense (including reasonable
attorney's fees) (i) incurred in connection with any claim or legal action
relating to (a) this Agreement, (b) the Mortgage Loans, (c) the Certificates
or (d) the Interest Rate Corridor Agreement, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of any of the Securities Administrator's duties hereunder,
(ii) incurred in connection with the performance of any of the Securities
Administrator's duties hereunder, other than any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of any of the Securities Administrator's duties hereunder or (iii)
incurred by reason of any action of the Securities Administrator taken at the
direction of the Certificateholders, provided that any such loss, liability or
expense constitutes an "unanticipated expense incurred by the REMIC" within
the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii). Such indemnity
shall survive the termination of this Agreement or the resignation or removal
of the Securities Administrator hereunder. Without limiting the foregoing, and
except for any such expense, disbursement or advance as may arise from the
Securities Administrator's negligence, bad faith or willful misconduct, or
which would not be an "unanticipated expense" within the meaning of the second
preceding sentence, the Securities Administrator shall be reimbursed by the
Trust for all reasonable expenses, disbursements and advances incurred or made
by the Securities
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Administrator in accordance with any of the provisions of this Agreement with
respect to: (A) the reasonable compensation and the expenses and disbursements
of its counsel not associated with the closing of the issuance of the
Certificates, (B) the reasonable compensation, expenses and disbursements of
any accountant, engineer, appraiser or other agent that is not regularly
employed by the Securities Administrator, to the extent that the Securities
Administrator must engage such Persons to perform acts or services hereunder
and (C) printing and engraving expenses in connection with preparing any
Definitive Certificates. The Trust shall fulfill its obligations under this
paragraph from amounts on deposit from time to time in the Distribution
Account.
The Securities Administrator may retain or withdraw from the
Distribution Account, (i) the investment income earned on amounts in the
Distribution Account during the Securities Administrator Float Period, (ii)
amounts necessary to reimburse the Servicer or the Trustee for any previously
unreimbursed Advances and any Advances the Servicer or the Trustee deem to be
non-recoverable from the related Mortgage Loan proceeds, (iii) an aggregate
annual amount to indemnify the Servicer and itself for amounts due in
accordance with this Agreement, and (iv) any other amounts which it or the
Servicer is entitled to receive hereunder for reimbursement, additional
compensation during the Servicer Float Period, indemnification or otherwise,
including the amount to which the Securities Administrator is entitled
pursuant to Section 3.02 hereof. The Securities Administrator shall be
required to pay all expenses incurred by it in connection with its activities
hereunder and shall not be entitled to reimbursement therefor except as
provided in this Agreement.
Section 9.06 Eligibility Requirements for the Securities
Administrator. The Securities Administrator hereunder shall at all times be a
corporation or association organized and doing business under the laws the
United States of America or any state thereof, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by federal or state
authority and with a credit rating of at least investment grade. If such
corporation or association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 9.06 the combined
capital and surplus of such corporation or association shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Securities Administrator shall
cease to be eligible in accordance with the provisions of this Section 9.06,
the Securities Administrator shall resign immediately in the manner and with
the effect specified in Section 9.07 hereof. The entity serving as Securities
Administrator may have normal banking and trust relationships with the
Depositor and its affiliates or the Trustee and its affiliates.
Any successor Securities Administrator (i) may not be an
originator, the Servicer, the Depositor or an affiliate of the Depositor
unless the Securities Administrator functions are operated through an
institutional trust department of the Securities Administrator, (ii) must be
authorized to exercise corporate trust powers under the laws of its
jurisdiction of organization, and (iii) must be rated at least "A/F1" by
Fitch, if Fitch is a Rating Agency and if rated by Fitch, or the equivalent
rating by S&P or ▇▇▇▇▇'▇. If no successor Securities Administrator shall have
been appointed and shall have accepted appointment within sixty (60) days
after the Securities Administrator ceases to be the Securities Administrator
pursuant to Section 9.07, then the Trustee may (but shall not be obligated to)
become the successor Securities Administrator. The
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Depositor shall appoint a successor to the Securities Administrator in
accordance with Section 9.07. The Trustee shall notify the Rating Agencies of
any change of Securities Administrator.
Section 9.07 Resignation and Removal of the Securities
Administrator. The Securities Administrator may at any time resign by giving
written notice of resignation to the Depositor and the Trustee and each Rating
Agency not less than sixty (60) days before the date specified in such notice
when, subject to Section 9.08, such resignation is to take effect, and
acceptance by a successor Securities Administrator in accordance with Section
9.08 meeting the qualifications set forth in Section 9.06. If no successor
Securities Administrator meeting such qualifications shall have been so
appointed by the Depositor and have accepted appointment within thirty (30)
days after the giving of such notice of resignation, the resigning Securities
Administrator may petition any court of competent jurisdiction for the
appointment of a successor Securities Administrator.
At least fifteen (15) calendar days prior to the effective date of
such resignation, the Securities Administrator shall provide written notice to
the Depositor or any successor pursuant to this Section 9.07.
If at any time (i) the Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 9.06 hereof and shall
fail to resign after written request thereto by the Depositor, (ii) the
Securities Administrator shall become incapable of acting, or shall be
adjudged as bankrupt or insolvent, or a receiver of the Securities
Administrator or of its property shall be appointed, or any public officer
shall take charge or control of the Securities Administrator or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, (iii)(A) a tax is imposed with respect to the Trust Fund by any
state in which the Securities Administrator or the Trust Fund is located and
(B) the imposition of such tax would be avoided by the appointment of a
different Securities Administrator, or (iv) the Securities Administrator fails
to comply with its obligations under Article XII and such failure is not
remedied within the lesser of ten (10) calendar days or such period in which
the applicable Exchange Act Report can be timely filed (without taking into
account any extensions), then, in the case of clauses (i) through (v), the
Depositor may remove the Securities Administrator and appoint a successor
Securities Administrator by written instrument, in triplicate, one copy of
which instrument shall be delivered to the Securities Administrator so
removed, one copy of which shall be delivered to the Servicer and one copy to
the successor Securities Administrator.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Securities Administrator and appoint a
successor Securities Administrator by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys in fact duly authorized,
one complete set of which instruments shall be delivered by the successor
Securities Administrator to the Trustee, one complete set to the Securities
Administrator so removed and one complete set to the successor so appointed.
Notice of any removal of the Securities Administrator shall be given to each
Rating Agency by the successor Securities Administrator.
Any resignation or removal of the Securities Administrator and
appointment of a successor Securities Administrator pursuant to any of the
provisions of this Section 9.07 shall
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become effective upon acceptance by the successor Securities Administrator of
appointment as provided in Section 9.08 hereof.
If at any time, ▇▇▇▇▇ Fargo, as Servicer, resigns or is removed
pursuant to the Servicing Agreement, then at such time ▇▇▇▇▇ Fargo shall also
resign (and shall be permitted to resign) as Securities Administrator under
this Agreement.
Section 9.08 Successor Securities Administrator. Any successor
Securities Administrator (which may be the Trustee) appointed as provided in
Section 9.07 hereof shall execute, acknowledge and deliver to the Depositor
and to its predecessor Securities Administrator and the Trustee an instrument
accepting such appointment hereunder and thereupon the resignation or removal
of the predecessor Securities Administrator shall become effective and such
successor Securities Administrator, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if
originally named as Securities Administrator herein. The Depositor, the
Trustee, the Servicer and the predecessor Securities Administrator shall
execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
the successor Securities Administrator all such rights, powers, duties, and
obligations.
No successor Securities Administrator shall accept appointment as
provided in this Section 9.08 unless at the time of such acceptance such
successor Securities Administrator shall be eligible under the provisions of
Section 9.06 hereof and its appointment shall not adversely affect the then
current rating of the Certificates, as confirmed in writing by each Rating
Agency and has provided to the Depositor in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a replacement Securities Administrator.
Upon acceptance by a successor Securities Administrator of
appointment as provided in this Section 9.08, the Depositor shall mail notice
of the succession of such Securities Administrator hereunder to all Holders of
Certificates. If the Depositor fails to mail such notice within ten (10) days
after acceptance by the successor Securities Administrator of appointment, the
successor Securities Administrator shall cause such notice to be mailed at the
expense of the Depositor.
Section 9.09 Merger or Consolidation of the Securities
Administrator. Any corporation or other entity into which the Securities
Administrator may be merged or converted or with which it may be consolidated
or any corporation or other entity resulting from any merger, conversion or
consolidation to which the Securities Administrator shall be a party, or any
corporation or other entity succeeding to the business of the Securities
Administrator, shall be the successor of the Securities Administrator
hereunder, provided that such corporation or other entity shall be eligible
under the provisions of Section 9.06 hereof, without the execution or filing
of any paper or further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
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Section 9.10 Assignment or Delegation of Duties by the Securities
Administrator. Except as expressly provided herein, the Securities
Administrator shall not assign or transfer any of its rights, benefits or
privileges hereunder to any other Person, or delegate to or subcontract with,
or authorize or appoint any other Person to perform any of the duties,
covenants or obligations to be performed by the Securities Administrator;
provided, however, that the Securities Administrator shall have the right with
the prior written consent of the Depositor (which shall not be unreasonably
withheld or delayed), and upon delivery to the Trustee and the Depositor of a
letter from each Rating Agency to the effect that such action shall not result
in a downgrade of the ratings assigned to any of the Certificates, to delegate
or assign to or subcontract with or authorize or appoint any qualified Person
to perform and carry out any duties, covenants or obligations to be performed
and carried out by the Securities Administrator hereunder. Notice of such
permitted assignment shall be given promptly by the Securities Administrator
to the Depositor and the Trustee. If, pursuant to any provision hereof, the
duties of the Securities Administrator are transferred to a successor
securities administrator, the entire compensation payable to the Securities
Administrator pursuant hereto shall thereafter be payable to such successor
securities administrator but in no event shall the fee payable to the
successor securities administrator exceed that payable to the predecessor
securities administrator.
ARTICLE X
TERMINATION
Section 10.01 Termination upon Liquidation or Purchase of the
Mortgage Loans. Subject to Section 10.03, the obligations and responsibilities
of the Depositor, the Securities Administrator and the Trustee created hereby
with respect to the Trust Fund shall terminate upon the earlier of: (a) the
purchase, on or after the Optional Termination Date and at the Depositor's
request, by the Servicer or its designee of the Mortgage Loans and all other
Property of the Trust Fund on a non-recourse basis with no representations or
warranties of any nature whatsoever. The Servicer shall accommodate such
request at its sole discretion. The purchase price for the Mortgage Loans and
other Property of the Trust Fund will be equal to the greater of (i) the Par
Value as certified by the Depositor and (ii) the aggregate fair market value
of each Mortgage Loan and any REO Property, as determined by the highest bid
received by the Servicer from closed bids solicited by the Depositor or its
designee from at least two recognized broker/dealers (one of which may be an
affiliate of the Depositor) that deal in similar assets as of the close of
business on the third Business Day preceding the date upon which a Notice of
Final Distribution is furnished to Certificateholders pursuant to Section
10.02, plus accrued and unpaid interest on the Mortgage Loans at the
applicable Mortgage Interest Rate. Such purchase price shall be deposited with
the Securities Administrator prior to the Distribution Date following the
month in which such value is determined; and (b) the later of (i) the maturity
or other liquidation (or any Advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Fund and the disposition of all REO
Property and (ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement. In no event
shall the trusts created hereby continue beyond the expiration of 21 years
from the death of the survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the
late Ambassador of the United States to the Court of St. James's, living on
the date hereof.
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The proceeds of the purchase of such assets of the Trust pursuant
to the sale described in this Section 10.01 (other than, with respect to any
mortgage loan and the related property, an amount equal to the excess, if any,
of the amount in Section 10.01(a)(ii) over the sum of the amount in Section
10.01(a)(i) (such excess, the "Fair Market Value Excess")) will be distributed
to the holders of the Certificates in accordance with Section 4.01. Any Fair
Market Value Excess received in connection with the purchase of the Mortgage
Loans and REO Properties will be distributed to the holders of the Class RC
Certificates.
Except to the extent provided above with regard to allocating any
Fair Market Value Excess to the holders of the Class RC Certificates, the
proceeds of such a sale will be treated as a prepayment of the Mortgage Loans
for purposes of distributions to Certificateholders. Accordingly, the sale of
the Mortgage Loans and the REO Properties as a result of the sale described
above will result in the final distribution on the Certificates on that
Distribution Date.
Section 10.02 Final Distribution on the Certificates. If, on any
Remittance Date, the Servicer notifies the Securities Administrator that there
are no Outstanding Mortgage Loans and no other funds or assets in the Trust
Fund other than the funds in the Custodial Account, the Securities
Administrator shall promptly send a Notice of Final Distribution to the
applicable Certificateholders. If the Depositor exercises its option to
request that the Servicer terminate the Trust Fund pursuant to Section 10.01,
the Servicer, pursuant to the Step 2 Assignment Agreement and by no later than
the tenth (10th) day of the month of final distribution, shall notify the
Trustee and the Securities Administrator of the final Distribution Date and of
the applicable sale price of the Mortgage Loans and REO Properties.
A Notice of Final Distribution, specifying the Distribution Date
on which Certificateholders may surrender their Certificates for payment of
the final distribution and cancellation, shall be given promptly by the
Securities Administrator by letter to Certificateholders mailed not later than
the 15th day of the month of such final distribution. Any such Notice of Final
Distribution shall specify (a) the Distribution Date upon which final
distribution on the Certificates will be made upon presentation and surrender
of Certificates at the office therein designated, (b) the amount of such final
distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date
otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Securities Administrator
will give such Notice of Final Distribution to each Rating Agency at the time
such Notice of Final Distribution is given to Certificateholders.
In the event the Mortgage Loans (and REO Properties) and all
rights and obligations under the Servicing Agreement are sold pursuant to
Section 10.01 and pursuant to the Step 2 Assignment Agreement, the Servicer is
required thereunder to remit to the Securities Administrator the applicable
Termination Price on the applicable Remittance Date immediately preceding the
applicable final Distribution Date. Upon such final deposit with respect to
the Trust Fund and the receipt by the Securities Administrator and the
Custodians of a request for release therefor in the form of Exhibit ▇-▇, ▇-▇
▇▇ ▇-▇ hereto, as applicable, the Trustee shall direct the Custodians to
release and the relevant Custodians shall promptly release to the Trustee or
its designee the Custodial Files for the Mortgage Loans.
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Upon presentation and surrender of the Certificates, the
Securities Administrator shall cause to be distributed to the
Certificateholders of each Class (after reimbursement of all amounts due the
Depositor, the Securities Administrator, the Trustee and the Custodians
hereunder), in each case on the final Distribution Date and in the order set
forth in Section 4.01, in proportion to their respective Percentage Interests,
with respect to Certificateholders of the same Class, an amount up to an
amount equal to (i) as to each Class of Regular Certificates (except the Class
X Certificates), the Certificate Balance thereof plus for each such Class and
the Class X Certificates accrued interest thereon in the case of an
interest-bearing Certificate and all other amounts to which such Classes are
entitled pursuant to Section 4.01, and (ii) as to the Residual Certificates,
the amount, if any, which remains on deposit in the Distribution Account after
application pursuant to clause (i) above (other than the amounts retained to
meet claims). The foregoing provisions are intended to distribute to each
Class of Regular Certificates any accrued and unpaid interest and principal to
which they are entitled based on the Pass-Through Rates and actual Class
Certificate Balances or notional principal balances set forth in the
Preliminary Statement upon liquidation of the Trust Fund.
In the event that any affected Certificateholders shall not
surrender Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Securities Administrator
shall give a second written notice to the remaining Certificateholders to
surrender their Certificates for cancellation and receive the final
distribution with respect thereto. If within six months after the second
notice all the applicable Certificates shall not have been surrendered for
cancellation, the Securities Administrator may take appropriate steps, or may
appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain a part of
the Trust Fund. If within one year after the second notice all Certificates
shall not have been surrendered for cancellation, the Class R
Certificateholders shall be entitled to all unclaimed funds and other assets
of the Trust Fund which remain subject hereto.
Section 10.03 Additional Termination Requirements. In the event
the Servicer elects to purchase the Mortgage Loans as provided in Section
10.01, the Trust Fund shall be terminated in accordance with the following
additional requirements, unless the Trustee and the Securities Administrator
have been supplied with an Opinion of Counsel, at the expense of the
Depositor, to the effect that the failure to comply with the requirements of
this Section 10.03 will not (i) result in the imposition of taxes on
"prohibited transactions" on any Trust REMIC as defined in Section 860F of the
Code, or (ii) cause any Trust REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding:
(a) The Securities Administrator on behalf of the Trustee shall
sell all of the assets of the Trust Fund to the Servicer or its designee and,
by the next Distribution Date after such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of each
of the Trust REMICs; and
(b) The Securities Administrator shall attach a statement to the
final federal income tax return for each of the Trust REMICs stating that
pursuant to Treasury Regulations Section 1.860F-1, the first day of the ninety
(90) day liquidation period for each such Trust
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REMIC was the date on which the Securities Administrator on behalf of the
Trustee sold the assets of the Trust Fund to the Servicer or its designee.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. This Agreement may be amended from time
to time by the Depositor, the Securities Administrator, the Custodians and the
Trustee (and the Depositor may request an amendment or the Trustee may consent
to any amendment of the Servicing Agreement as directed by the Depositor)
without the consent of any of the Certificateholders (i) to cure any ambiguity
or mistake, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the
Certificates, the Trust Fund or this Agreement in the Prospectus Supplement,
or to correct or supplement any provision herein which may be inconsistent
with any other provisions herein or with the provisions of any Sale Agreement
or Servicing Agreement, (iii) to correct any defective provision herein or in
the Servicing Agreement, as applicable, or to supplement any provision in this
Agreement which may be inconsistent with any other provision herein, in the
Prospectus Supplement or in the Servicing Agreement, (iv) to add to the duties
of the Depositor, or the Trustee (or with respect to the Servicing Agreement,
of the Servicer) the Securities Administrator or the Custodians, (v) to add
any other provisions with respect to matters or questions arising hereunder or
under the Servicing Agreement, or (vi) to modify, alter, amend, add to or
rescind any of the terms or provisions contained in this Agreement or in the
Servicing Agreement; provided that any action pursuant to clause (v) or (vi)
above shall not, as evidenced by an Opinion of Counsel (which Opinion of
Counsel shall be an expense of the requesting party, but in any case shall not
be an expense of the Trustee, the Securities Administrator, the Custodians or
the Trust Fund and shall be addressed to the foregoing entities), adversely
affect in any material respect the interests of any Certificateholder;
provided, further, that the amendment shall not be deemed to adversely affect
in any material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to the Certificates; it being understood and
agreed that any such letter in and of itself will not represent a
determination as to the materiality of any such amendment and will represent a
determination only as to the credit issues affecting any such rating. The
Trustee, the Depositor, the Custodians and the Securities Administrator also
may at any time and from time to time amend this Agreement (and if necessary,
the Depositor shall direct the Trustee to request that the Servicer amend the
Servicing Agreement), without the consent of the Certificateholders, to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary or helpful to (i) maintain the qualification of each Trust REMIC
under the REMIC Provisions, (ii) avoid or minimize the risk of the imposition
of any tax on any Trust REMIC pursuant to the Code that would be a claim at
any time prior to the final redemption of the Certificates or (iii) comply
with any other requirements of the Code; provided, that the Trustee has been
provided an Opinion of Counsel, which opinion shall be an expense of the party
requesting such opinion but in any case shall not be an expense of the Trustee
or the Trust Fund, to the effect that such action is necessary or helpful to,
as applicable, (i) maintain such qualification, (ii) avoid or minimize the
risk of the imposition of such a tax or (iii) comply with any such
requirements of the Code.
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This Agreement may also be amended from time to time by the
Depositor, the Custodians, the Securities Administrator and the Trustee (and
the Trustee shall consent to any amendment to the Servicing Agreement as
directed by the Depositor) with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 66?% of each Class
of Certificates affected thereby for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in
any manner the amount of, or delay the timing of, payments required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of
the Holders of any Class of Certificates in a manner other than as described
in clause (i), without the consent of the Holders of Certificates of such
Class evidencing, as to such Class, Percentage Interests aggregating not less
than 66?%, or (iii) reduce the aforesaid percentages of Certificates the
Holders of which are required to consent to any such amendment, without the
consent of the Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the
Trustee and the Securities Administrator shall not consent to any amendment to
this Agreement or the Servicing Agreement unless (i) each shall have first
received an Opinion of Counsel, which opinion shall not be an expense of the
Trustee or the Trust Fund, to the effect that such amendment will not cause
the imposition of any tax on any Trust REMIC or the Certificateholders or
cause any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding and (ii) the party seeking such amendment shall
have provided written notice to the Rating Agencies (with a copy of such
notice to the Trustee) of such amendment, stating the provisions of the
Agreement to be amended.
Notwithstanding the foregoing provisions of this Section 11.01,
with respect to any amendment that significantly modifies the permitted
activities of the Trustee or the Servicer under the Servicing Agreement, any
Certificate beneficially owned by the Depositor or any of its Affiliates or by
the Responsible Party or any of its Affiliates shall be deemed not to be
outstanding (and shall not be considered when determining the percentage of
Certificateholders consenting or when calculating the total number of
Certificates entitled to consent) for purposes of determining if the requisite
consents of Certificateholders under this Section 11.01 have been obtained.
Promptly after the execution of any amendment to this Agreement or
the Servicing Agreement requiring the consent of Certificateholders, the
Trustee shall furnish written notification of the substance or a copy of such
amendment to each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
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Nothing in this Agreement shall require the Trustee, the
Custodians or the Securities Administrator to enter into an amendment which
modifies its obligations or liabilities without its consent and in all cases
without receiving an Opinion of Counsel (which Opinion shall not be an expense
of the Trustee, the Custodians, the Securities Administrator or the Trust
Fund), satisfactory to the Trustee or the Securities Administrator, as
applicable, that (i) such amendment is permitted and is not prohibited by this
Agreement or the Servicing Agreement and that all requirements for amending
this Agreement or the Servicing Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
immediately preceding clause (A) is not required to be reached pursuant to
this Section 11.01.
Notwithstanding the Trustee's consent to, or the Securities
Administrator's request for, any amendment of the Servicing Agreement pursuant
to the terms of this Section 11.01, the Servicing Agreement cannot be amended
without the consent of the Servicer. Neither the Securities Administrator nor
the Trustee shall be responsible for any failure by the Servicer to consent to
any amendment to the Servicing Agreement.
Section 11.02 Recordation of Agreement; Counterparts. This
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in
which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such
recordation shall be caused to be effected by the Depositor at the expense of
the Trust, but only if an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders is delivered to the Depositor.
For the purpose of facilitating the recordation of this Agreement
as herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
Section 11.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.04 Intention of Parties. It is the express intent of
the parties hereto that the conveyance (i) of the Mortgage Loans by the
Depositor and (ii) of the Trust Fund by the Depositor to the Trustee each be,
and be construed as, an absolute sale thereof. It is, further, not the
intention of the parties that such conveyances be deemed a pledge thereof.
However, in the event that, notwithstanding the intent of the parties, such
assets are held to be the property of the Depositor, or if for any other
reason this Agreement is held or deemed to create a security interest in
either of such assets, then (i) this Agreement shall be deemed to be a
security agreement within the meaning of the Uniform Commercial Code of the
State of New York and (ii) the conveyances provided for in this Agreement
shall be deemed to be an assignment and a
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grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Depositor, for the benefit of the Certificateholders, shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. The Depositor shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted or assigned to the Trustee for
the benefit of the Certificateholders.
Section 11.05 Notices. (a) The Securities Administrator shall use
its best efforts to promptly provide notice to each Rating Agency with respect
to each of the following of which it has actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Event of Default that has not been
cured;
(iii) The resignation or termination of the Servicer, Securities
Administrator or the Trustee and the appointment of any successor;
(iv) The repurchase or substitution of Mortgage Loans pursuant to
this Agreement, the Assignment Agreement, the Servicing Agreement or the
Sale Agreements; and
(v) The final payment to Certificateholders.
(b) In addition, the Securities Administrator shall promptly make
available on its internet website to each Rating Agency copies of the
following:
(i) Each report to Certificateholders described in Section 4.02.
(ii) The Servicer's annual statement of compliance and the
accountant's report described in Sections 6.04 and 6.05, respectively,
of the Servicing Agreement; and
(iii) Any notice of a purchase of a Mortgage Loan pursuant to this
Agreement and any Sale Agreement.
(b) All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case
of the Depositor, the Purchaser, the Goldman Conduit or the Corridor Provider,
to ▇▇▇▇▇▇▇, Sachs & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Principal Finance Group/▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and Asset Management
Group/Senior Asset Manager, or such other address as may be hereafter
furnished to the Securities Administrator by the Depositor in writing; (b) in
the case of the Trustee or the Securities Administrator to its Corporate Trust
Office, or such other address as the Trustee or the Securities Administrator
may hereafter furnish to the Depositor; (c) in the case of the Securities
Administrator, to ▇▇▇▇▇ Fargo Bank, National Association, ▇.▇. ▇▇▇ ▇▇,
▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: GSAA 2006-13, or such other address as
may be hereafter furnished to the Depositor and the Securities Administrator
in writing; (d) in the case of Deutsche Bank as a Custodian, to Deutsche Bank
National Trust Company, ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Mortgage Custody - GS0613; (e) in the case of JPMorgan as a
Custodian, to JPMorgan Chase Bank, National Association, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; (f) in the case of U.S. Bank, to U.S.
Bank National Association, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: GSAA Home Equity Trust 2006-13; (g) in the case of ▇▇▇▇▇
Fargo as the Servicer, ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: GSAA 2006-13, or such other
address as may be hereafter furnished to the Depositor and the Securities
Administrator by ▇▇▇▇▇ Fargo in writing; and (h) in the case of each of the
Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency. Notices to Certificateholders
shall be deemed given when mailed, first class postage prepaid, to their
respective addresses appearing in the Certificate Register.
Section 11.06 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or of
the Certificates or the rights of the Holders thereof.
Section 11.07 Limitation on Rights of Certificateholders. The
death or incapacity of any Certificateholder shall not operate to terminate
this Agreement or the trust created hereby, nor entitle such
Certificateholder's legal representative or heirs to claim an accounting or to
take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth or contained in the terms of the Certificates
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be
under any liability to any third party by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
herein provided, and unless the Holders of Certificates evidencing not less
than 25% of the Voting Rights evidenced by the Certificates shall also have
made written request to the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for sixty (60) days after its receipt of such notice, request and offer of
indemnity shall have neglected or refused to institute
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any such action, suit or proceeding; it being understood and intended, and
being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or
seek to obtain priority over or preference to any other such Holder or to
enforce any right under this Agreement, except in the manner herein provided
and for the common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 11.07, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 11.08 Certificates Nonassessable and Fully Paid. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 11.09 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE
LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED
BEFORE A JUDGE SITTING WITHOUT A JURY.
ARTICLE XII
EXCHANGE ACT REPORTING
Section 12.01 Filing Obligations.
The Trustee, the Securities Administrator and each Custodian shall
reasonably cooperate with the Depositor and Securities Administrator in
connection with the satisfaction of the Depositor's reporting requirements
under the Exchange Act with respect to the Trust Fund. In addition to the
information specified below, if so requested by the Depositor in writing for
the purpose of satisfying its reporting obligation under the Exchange Act, the
Trustee, the Securities Administrator and each Custodian shall provide the
Depositor with (a) such information which is available to such Person without
unreasonable effort or expense and within such timeframe as may be reasonably
requested by the Depositor to comply with the Depositor's reporting
obligations under the Exchange Act and (b) to the extent such Person is a
party (and the Depositor is not a party) to any agreement or amendment
required to be filed, copies of such agreement or amendment in
▇▇▇▇▇-compatible form.
In the event that the Securities Administrator becomes aware that
it will be unable to timely file with the Commission all or any required
portion of any Form 8-K, 10-D or 10-K required to be filed by this Agreement
because required disclosure information was either not delivered to it or
delivered to it after the delivery deadlines set forth in this Agreement or
for any other reason, the Securities Administrator will promptly notify the
Depositor. In the case of
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Form 10-D and 10-K, the parties to this Agreement will cooperate and cause the
Servicer or Servicing Function Participants, as applicable, to cooperate, to
prepare and file a Form 12b-25 and a 10-DA and 10-KA as applicable, pursuant
to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Securities
Administrator will, upon receipt of all required Form 8-K Disclosure
Information and upon the approval and direction of the Depositor, include such
disclosure information on the next Form 10-D unless directed by the Depositor
to file a Form 8-K with such Form 8-K Disclosure Information. In the event
that any previously filed Form 8-K, Form 10-D or Form 10-K needs to be
amended, the Securities Administrator shall notify the Depositor and prepare
any necessary Form 8-KA, Form 10-DA or Form 10-KA. Any Form 15, Form 12b-25 or
any amendment to Form 8-K, Form 10-K or Form 10-D shall be signed by a duly
authorized representative of the Depositor. The parties to this Agreement
acknowledge that the performance by the Securities Administrator of its duties
under this Section 12.01 related to the timely preparation and filing of Form
15, a Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is
contingent upon each such party performing its duties under this Section. The
Securities Administrator shall have no liability for any loss, expense, damage
or claim arising out of or with respect to any failure to properly prepare
and/or timely file any such Form 15, Form 12b-25 or any amendments to Form
8-K, Form 10-D or Form 10-K, where such failure results from the Securities
Administrator's inability or failure to receive on a timely basis, any
information from or on behalf of any other party hereto needed to prepare,
arrange for execution or file such Form 15, Form 12b-25 or any amendments to
Forms 8-K, 10-D or 10-K, not resulting from its own negligence, bad faith or
willful misconduct.
The Securities Administrator shall promptly file, and exercise its
reasonable best efforts to obtain a favorable response to, no-action requests,
or other appropriate exemptive relief with the Commission seeking the usual
and customary exemption from such reporting requirements granted to issuers of
securities similar to the Certificates if and to the extent the Depositor
shall deem any such relief to be necessary or appropriate. Unless otherwise
advised by the Depositor, the Securities Administrator shall assume that the
Depositor is in compliance with the preceding sentence. In no event shall the
Securities Administrator have any liability for the execution or content of
any document required to be filed by the 1934 Act. The Depositor agrees to
promptly furnish to the Securities Administrator, from time to time upon
request, such further information, reports, and financial statements within
its control related to the Trust Agreement and the Mortgage Loans as the
Depositor reasonably deems appropriate to prepare and file all necessary
reports with the Commission.
Section 12.02 Form 8-K Filings.
The Depositor shall prepare or cause to be prepared the initial
current report on Form 8-K. Thereafter within four (4) Business Days after the
occurrence of an event requiring disclosure in a current report on Form 8-K
(each such event, a "Reportable Event"), the Depositor shall sign and the
Securities Administrator shall prepare and file with the Commission any Form
8-K, as required by the Exchange Act. Any disclosure or information related to
a Reportable Event or that is otherwise required to be included on Form 8-K
("Form 8-K Disclosure Information") shall be determined and prepared by and at
the direction of the Depositor pursuant to this Section 12.02 and the
Securities Administrator shall have no duty or liability for any failure
hereunder to determine or prepare any Form 8-K Disclosure Information or any
Form 8-K, except as set forth in this Section 12.02.
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As set forth on Exhibit M hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than the end of
business on the second Business Day after the occurrence of a Reportable Event
each of the Securities Administrator, the Trustee, the Custodians and the
Depositor shall be required to provide to the Securities Administrator and
Depositor, to the extent known, in ▇▇▇▇▇-compatible form, or in such other
form as otherwise agreed upon by the Securities Administrator and such party,
the form and substance of any Form 8-K Disclosure Information, if applicable
and (ii) the Depositor shall approve, as to form and substance, or disapprove,
as the case may be, the inclusion of the Form 8-K Disclosure Information. The
Depositor shall be responsible for any reasonable fees and expenses assessed
or incurred by the Securities Administrator in connection with including any
Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph.
After preparing the Form 8-K, the Securities Administrator shall
forward electronically a draft copy of the Form 8-K to the Depositor for
review. No later than 12:00 noon New York City time on the fourth (4th)
Business Day after the Reportable Event, a duly authorized representative of
the Depositor shall sign the Form 8-K and return such signed Form 8-K to the
Securities Administrator, and no later than 5:30 p.m. New York City time on
such Business Day the Securities Administrator shall file such Form 8-K with
the Commission. If a Form 8-K cannot be filed on time or if a previously filed
Form 8-K needs to be amended, the Securities Administrator will follow the
procedures set forth in Section 12.01. Promptly (but no later than one (1)
Business Day) after filing with the Commission, the Securities Administrator
will, make available on its internet website (located at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇) a
final executed copy of each Form 8-K prepared by the Securities Administrator.
The Securities Administrator can be contacted at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust, GSAA 2006-13, by
e-mail at ▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ or by facsimile (▇▇▇) ▇▇▇-▇▇▇▇.
The parties to this Agreement acknowledge that the performance by the
Securities Administrator of its duties under this Section 12.02 related to the
timely preparation and filing of Form 8-K is contingent upon such parties
strictly observing all applicable deadlines in the performance of their duties
under this Section 12.02. The Securities Administrator shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare and/or timely file such Form 8-K, where such
failure results from the Securities Administrator's inability or failure to
receive on a timely basis, any information from any other party hereto needed
to prepare, arrange for execution or file such Form 8-K, not resulting from
its own negligence, bad faith or willful misconduct.
Section 12.03 Form 10-D Filings.
Within fifteen days after each Distribution Date (subject to
permitted extensions under the Exchange Act and until a Form 15 is filed
pursuant to Section 12.05), the Securities Administrator shall prepare and
file with the Commission, and the Depositor shall sign any distribution report
on Form 10-D required by the Exchange Act, in form and substance as required
by the Exchange Act. The Securities Administrator shall file each Form 10-D
with a copy of the related Monthly Statement attached thereto. Any disclosure
in addition to the monthly statement that is required to be included on Form
10-D ("Additional Form 10-D Disclosure") shall be determined and prepared by
and at the direction of the Depositor pursuant to the following paragraph and
the Securities Administrator will have no duty or liability for any
98
failure hereunder to determine or prepare any Additional Form 10-D Disclosure,
except as set forth in this Section 12.03.
As set forth on Exhibit N hereto, within five (5) calendar days
after the related Distribution Date, (i) certain parties to the GSAA Home
Equity Trust 2006-13 Asset-Backed Certificates transaction shall be required
to provide to the Securities Administrator and the Depositor, to the extent
known, in ▇▇▇▇▇-compatible form, or in such other form as otherwise agreed
upon by the Securities Administrator and such party, the form and substance of
any Additional Form 10-D Disclosure, if applicable, and (ii) the Depositor
will approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Depositor
shall be responsible for any reasonable fees and expenses assessed or incurred
by the Securities Administrator in connection with any Additional Form 10-D
Disclosure on Form 10-D pursuant to this Section 12.03.
After preparing the Form 10-D, the Securities Administrator shall
forward electronically a draft copy of the Form 10-D to the Depositor for
review. No later than two (2) Business Days following the tenth (10th)
calendar day after the related Distribution Date, a duly authorized
representative of the Depositor shall sign the Form 10-D and return such
signed Form 10-D to the Securities Administrator, and no later than 5:30 p.m.
New York City time on the fifteenth (15th) calendar day after the related
Distribution Date, the Securities Administrator shall file such Form 10-D with
the Commission. If a Form 10-D cannot be filed on time or if a previously
filed Form 10-D needs to be amended, the Securities Administrator will follow
the procedures set forth in Section 12.01. Promptly (but no later than one (1)
Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website (located at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇) a
final executed copy of each Form 10-D prepared by the Securities
Administrator. The Securities Administrator can be contacted at ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust,
GSAA 2006-13, by e-mail at ▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ or by
facsimile (▇▇▇) ▇▇▇-▇▇▇▇. Each party to this Agreement acknowledges that the
performance by the Securities Administrator of its duties under this Section
12.03 related to the timely preparation and filing of Form 10-D is contingent
upon such parties strictly observing all applicable deadlines in the
performance of their duties under this Section 12.03. The Securities
Administrator shall have no liability for any loss, expense, damage or claim
arising out of or with respect to any failure to properly prepare and/or
timely file such Form 10-D, where such failure results from the Securities
Administrator's inability or failure to receive on a timely basis, any
information from any other party hereto needed to prepare, arrange for
execution or file such Form 10-D, not resulting from its own negligence, bad
faith or willful misconduct.
Form 10-D requires the registrant to indicate (by checking "yes"
or "no") that it "(1) has filed all reports required to be filed by Section 13
or 15(d) of the Exchange Act during the preceding 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days." The
Depositor shall notify the Securities Administrator in writing, no later than
the fifth calendar day after the related Distribution Date with respect to the
filing of a report on Form 10-D if the answer to the questions should be "no."
The Securities Administrator shall be entitled to rely on such representations
in preparing, executing and/or filing any such report.
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Section 12.04 Form 10-K Filings.
Within 90 days after the end of each fiscal year of the Trust or
such earlier date as may be required by the Exchange Act (the "10-K Filing
Deadline") (it being understood that the fiscal year for the Trust ends on
December 31 of each year), commencing in March 2007 and continuing until the
Trust has been deregistered with the Commission, the Securities Administrator
shall prepare and file on behalf of the Depositor an annual report on Form
10-K, in form and substance as required by the Exchange Act. Each such Form
10-K shall include the following items, in each case to the extent they have
been delivered to the Securities Administrator within the applicable time
frames set forth in this Agreement and the Servicing Agreement: (i) an annual
compliance statement for the Servicer, each Additional Servicer and the
Securities Administrator (each such party, a "Reporting Servicer") as
described below, (ii)(A) the annual reports on assessment of compliance with
servicing criteria for each Reporting Servicer, as described under this
Section 12.04 and Section 12.07, and (B) if each Reporting Servicer's report
on assessment of compliance with servicing criteria described under Section
12.04 and Section 12.07 identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if each Reporting
Servicer's report on assessment of compliance with servicing criteria
described under Section 12.04 and Section 12.07 is not included as an exhibit
to such Form 10-K, disclosure that such report is not included and an
explanation why such report is not included, (iii)(A) the registered public
accounting firm attestation report for each Reporting Servicer, as described
under Section 12.07, and (B) if any registered public accounting firm
attestation report described under Section 12.07 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included, and
(iv) a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification as described in Section 12.06. Any
disclosure or information in addition to the disclosure or information
specified in items (i) through (iv) above that is required to be included on
Form 10-K ("Additional Form 10-K Disclosure") shall be determined and prepared
by and at the direction of the Depositor pursuant to the following paragraph
and the Securities Administrator shall have no duty or liability for any
failure hereunder to determine or prepare any Additional Form 10-K Disclosure,
except as set forth in this Section 12.04.
The Securities Administrator shall deliver to the Depositor on or before
March 15 of each year, commencing in March 2007, an Officer's Certificate
stating, as to the signer thereof, that (i) a review of such party's
activities during the preceding calendar year or portion thereof and of such
party's performance under this Agreement, or such other applicable agreement
in the case of an Additional Servicer, has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such
review, such party has fulfilled all its obligations under this Agreement, or
such other applicable agreement in the case of an Additional Servicer, in all
material respects throughout such year or portion thereof, or, if there has
been a failure to fulfill any such obligation in any material respect,
specifying each such failure known to such officer and the nature and status
thereof. Promptly after receipt of each such Officer's Certificate, the
Depositor shall review such Officer's Certificate and consult with each such
party, as applicable, as to the nature of any failures by such party, in the
fulfillment of any of such party's obligations hereunder or, in the case of an
Additional Servicer, under such other applicable agreement.
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The Trustee, at the direction of the Depositor, shall cause the
Servicer, in accordance with and to the extent set forth in the Servicing
Agreement, to deliver to the Securities Administrator an annual statement of
compliance within the time frame set forth in, and in such form and substance
as may be required pursuant to, the Servicing Agreement
As set forth on Exhibit O hereto, no later than March 15 of each year
that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2007 and continuing until the Trust has been deregistered with
the Commission, (i) certain parties to the GSAA Home Equity Trust 2006-13
Asset-Backed Certificates transaction shall be required to provide to the
Securities Administrator and the Depositor, to the extent known, in
▇▇▇▇▇-compatible form, or in such other form as otherwise agreed upon by the
Securities Administrator and such party, the form and substance of any
Additional Form 10-K Disclosure, if applicable, and (ii) the Depositor shall
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Depositor
shall be responsible for any reasonable fees and expenses assessed or incurred
by the Securities Administrator in connection with including any Additional
Form 10-K Disclosure on Form 10-K pursuant to this Section 12.04.
After preparing the Form 10-K, the Securities Administrator shall
forward electronically a draft copy of the Form 10-K to the Depositor for
review. No later than 12:00 noon New York City time on the fourth Business Day
prior to the 10-K Filing Deadline, a senior officer of the Depositor shall
sign the Form 10-K and return such signed Form 10-K to the Securities
Administrator. If a Form 10-K cannot be filed on time or if a previously filed
Form 10-K needs to be amended, the Securities Administrator will follow the
procedures set forth in 12.01. Promptly (but no later than one (1) Business
Day) after filing with the Commission, the Securities Administrator will make
available on its internet website located at (located at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇) a
final executed copy of each Form 10-K prepared by the Securities
Administrator. The parties to this Agreement acknowledge that the performance
by the Securities Administrator of its duties under this Section 12.04 related
to the timely preparation and filing of Form 10-K is contingent upon such
parties (and any Additional Servicer or Servicing Function Participant)
strictly observing all applicable deadlines in the performance of their duties
under this Section 12.04, Section 12.06, Section 12.01 and Section 12.07. The
Securities Administrator shall have no liability for any loss, expense,
damage, claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 10-K, where such failure results from the
Securities Administrator's inability or failure to receive on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 10-K, not resulting from its own negligence, bad
faith or willful misconduct.
Form 10-K requires the registrant to indicate (by checking "yes" or
"no") that it "(1) has filed all reports required to be filed by Section 13 or
15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days." The Depositor
shall notify the Securities Administrator in writing, no later than March 15th
if the answer to the questions should be "no." The Securities Administrator
shall be entitled to rely on such representations in preparing, executing
and/or filing any such report.
101
Section 12.05 Form 15 Filing.
Prior to January 30 of the first year in which the Securities
Administrator is able to do so under applicable law, the Securities
Administrator shall prepare, sign and file a Form 15 relating to the automatic
suspension of reporting in respect of the Trust Fund under the Exchange Act.
Section 12.06 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification.
Each Form 10-K shall include a certification, (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification") required to be included therewith under the Exchange Act
(pursuant to Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations of the Commission promulgated thereunder). Pursuant to the
Servicing Agreement, the Servicer has agreed to cause any Servicing Function
Participant engaged by it to provide to the Person who signs the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the "Certifying Person"), by March 15 of each
year in which the Trust is subject to the reporting requirements of the
Exchange Act and otherwise within a reasonable period of time upon request, a
certification (each, a "Back-Up Certification"), in the form attached hereto
as Exhibit J, upon which the Certifying Person, the entity for which the
Certifying Person acts as an officer, and such entity's officers, directors
and Affiliates (collectively with the Certifying Person, "Certification
Parties") can reasonably rely. The Depositor shall serve as the Certifying
Person on behalf of the Trust. In the event that prior to the filing date of
the Form 10-K in March of each year, the Securities Administrator has actual
knowledge of information material to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification, the
Securities Administrator shall promptly notify the Depositor. The respective
parties hereto agree to cooperate with all reasonable requests made by any
Certifying Person or Certification Party in connection with such Person's
attempt to conduct any due diligence that such Person reasonably believes to
be appropriate in order to allow it to deliver any ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification or portion thereof with respect to the Trust Fund. In the event
the Securities Administrator or any Servicing Function Participant engaged by
parties is terminated or resigns pursuant to the terms of this Agreement, or
any applicable sub-servicing agreement, as the case may be, such party shall
provide a Back-Up Certification to the Certifying Person pursuant to this
Section 12.06 with respect to the period of time it was subject to this
Agreement or any applicable sub-servicing agreement, as the case may be.
The Trustee, at the direction of the Depositor, shall enforce any
obligation of the Servicer, to the extent set forth in the Servicing
Agreement, in the event of any failure to deliver to the Securities
Administrator any certifications, documentation and other such information
required to be delivered pursuant to the Servicing Agreement.
Section 12.07 Report on Assessment of Compliance and Attestation.
(a) On or before March 15th of each calendar year, commencing in 2007:
(1) Each of the Securities Administrator and the Custodians shall
deliver to the Depositor and the Securities Administrator a report regarding
the Securities Administrator's or Custodians', as applicable, assessment of
compliance with the Servicing Criteria applicable to it during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB; provided, however, the Securities
102
Administrator and Custodians shall deliver such report until a Form 15 is
filed pursuant to Section 12.06. Such report shall be signed by an authorized
officer of such Person and shall address each of the Servicing Criteria
applicable to it identified in Exhibit K hereto delivered to the Depositor
concurrently with the execution of this Agreement. To the extent any of the
Servicing Criteria so specified are not applicable to such Person, with
respect to asset-backed securities transactions taken as a whole involving
such Person and that are backed by the same asset type backing the
Certificates, such report shall include such a statement to that effect. The
Depositor and its respective officers and directors shall be entitled to rely
on upon each such servicing criteria assessment.
(2) Each of the Securities Administrator and the Custodians shall
deliver to the Depositor and the Securities Administrator a report of a
registered public accounting firm that attests to, and reports on, the
assessment of compliance made by the Securities Administrator or the
Custodians, as applicable, and delivered pursuant to the preceding paragraphs;
provided, however, the Securities Administrator and Custodians shall deliver
such report until a Form 15 is filed pursuant to Section 12.06. Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act, including,
without limitation that in the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report
why it was unable to express such an opinion. Such report must be available
for general use and not contain restricted use language. To the extent any of
the Servicing Criteria are not applicable to such Person, with respect to
asset-backed securities transactions taken as a whole involving such Person
and that are backed by the same asset type backing the Certificates, such
report shall include such a statement to that effect.
(3) The Depositor shall cause the Servicer and any Reporting
Subcontractor to deliver to the Depositor an assessment of compliance and
accountant's attestation as and when provided in paragraphs (a) and (b) of
this Section 12.07.
(4) The Securities Administrator shall cause each Reporting
Subcontractor under its employ, if any, to deliver to the Depositor an
assessment of compliance and accountant's attestation as and when provided in
paragraphs (a) and (b) of this Section.
(b) Each assessment of compliance provided by the Securities
Administrator or the Custodians pursuant to Section 12.07(a)(2) shall address
each of the Servicing Criteria applicable to it specified on a Exhibit K
hereto delivered to the Depositor concurrently with the execution of this
Agreement or, in the case of a securities administrator or custodian
subsequently appointed as such, on or prior to the date of such appointment.
An assessment of compliance provided by a Subcontractor pursuant to Section
12.07(a)(3) or (4) need not address any elements of the Servicing Criteria
other than those specified pursuant to Section 12.07(a)(1).
* * * * * * *
103
IN WITNESS WHEREOF, the parties hereto have caused their names to
be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST
COMPANY, solely in its capacity as Trustee
and a Custodian and not in its individual
capacity
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ Benveruto
-----------------------------------------
Name: ▇▇▇▇▇▇▇ Benveruto
Title: Authorized Signer
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Securities Administrator
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
[SIGNATURES CONTINUE]
Trust Agreement
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as a Custodian
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION, as a
Custodian
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
Trust Agreement
SCHEDULE I
Mortgage Loan Schedule
[On File with the Securities Administrator as provided by the Depositor]
S-I-1
EXHIBIT A
FORM OF CLASS AV-1, CLASS AF-2, CLASS AF-3, CLASS AF-4, CLASS AF-5,
CLASS AF-6, CLASS M-1, CLASS M-2, CLASS M-3, CLASS M-4, CLASS M-5,
CLASS M-5, CLASS B-1, CLASS B-2 AND CLASS B-3 CERTIFICATES
[To be added to the Class B-3 Certificates while they remain non-investment
grade Certificates: IF THIS CERTIFICATE IS A PHYSICAL CERTIFICATE, NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE (THE "TRANSFEROR CERTIFICATE") IN THE FORM OF EXHIBIT I TO THE
AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR
RECEIVES A RULE 144A LETTER (THE "RULE 144A LETTER") IN THE FORM OF EXHIBIT H
TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR
RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR,
THAT SUCH TRANSFER MAY BE MADE WITHOUT-REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED.]
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE PROPOSED TRANSFEROR WILL
BE DEEMED TO HAVE MADE EACH OF THE CERTIFICATIONS SET FORTH IN THE TRANSFEROR
LETTER AND THE PROPOSED TRANSFEREE WILL BE DEEMED TO HAVE MADE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER, IN EACH CASE AS IF SUCH
CERTIFICATE WERE EVIDENCED BY A PHYSICAL CERTIFICATE.
[To be added to the Class B-3 Certificates while they remain Private
Certificates: NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR
EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN
EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975
OF THE CODE, OR A PLAN SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN,
OR, IF THE TRANSFEREE IS AN INSURANCE COMPANY, A REPRESENTATION LETTER THAT IT
IS USING THE ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING
OF THIS CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR
AND THE DEPOSITOR, TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW AND
A-1
WILL NOT SUBJECT THE DEPOSITOR, THE TRUSTEE, THE SERVICER OR THE SECURITIES
ADMINISTRATOR TO ANY OBLIGATION IN ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN
THIS AGREEMENT OR TO ANY LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE
CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF ERISA, SECTION 4975 OF THE CODE
OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL
SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TRUSTEE AND DEPOSITOR AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
IN THE EVENT THAT A TRANSFER OF A PRIVATE CERTIFICATE WHICH IS A BOOK-ENTRY
CERTIFICATE IS TO BE MADE IN RELIANCE UPON AN EXEMPTION FROM THE SECURITIES
ACT AND SUCH LAWS, IN ORDER TO ASSURE COMPLIANCE WITH THE SECURITIES ACT AND
SUCH LAWS, THE CERTIFICATEHOLDER DESIRING TO EFFECT SUCH TRANSFER WILL BE
DEEMED TO HAVE MADE AS OF THE TRANSFER DATE EACH OF THE CERTIFICATIONS SET
FORTH IN THE TRANSFEROR CERTIFICATE IN RESPECT OF SUCH CERTIFICATE AND THE
TRANSFEREE WILL BE DEEMED TO HAVE MADE AS OF THE TRANSFER DATE EACH OF THE
CERTIFICATIONS SET FORTH IN THE RULE 144A LETTER IN RESPECT OF SUCH
CERTIFICATE, IN EACH CASE AS IF SUCH CERTIFICATE WERE EVIDENCED BY A PHYSICAL
CERTIFICATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND CERTAIN
OTHER ASSETS.
[To be added to the Class B-3 Certificates while they remain Private
Certificates: THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS
CERTIFICATE WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
A-2
Certificate No. :
Cut-off Date : August 1, 2006
First Distribution Date : September 25, 2006
Initial Certificate Balance of
this Certificate
("Denomination") :
Initial Certificate Balances of
all Certificates of this Class : ________________ ________________
CUSIP
ISIN
A-3
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-13
Asset-Backed Certificates, Series 2006-13
[Class AV-1][Class AF-2][Class AF-3][Class AF-4][Class AF-5]
[Class AF-6][Class M-1][Class M-2] [Class M-3][Class M-4]
[Class M-5][Class B-1][Class B-2][Class B-3]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly
as set forth herein. Accordingly, the Certificate Balance at any time may be
less than the Certificate Balance as set forth herein. This Certificate does
not evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Securities Administrator or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that CEDE & CO. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions pursuant to a Trust Agreement dated as of the Cut-off
Date specified above (the "Agreement") among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Deutsche Bank National Trust Company, as trustee
(the "Trustee") and as a custodian, ▇▇▇▇▇ Fargo Bank, National Association, as
Securities Administrator (in such capacity, the "Securities Administrator"),
JPMorgan Chase Bank, National Association, as a custodian and U.S. Bank
National Association, as a custodian. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
A-4
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Securities Administrator
By:
-----------------------------------
Authenticated:
By:
-------------------------------------
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
A-5
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-13
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2006-13 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
for each Distribution Date is the last Business Day of the applicable Interest
Accrual Period for the related Distribution Date; provided, however, that for
any Definitive Certificates, the Record Date shall be the last Business Day of
the month immediately preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer
of immediately available funds to the account of the Holder hereof at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Securities Administrator in
writing at least five (5) Business Days prior to the related Record Date and
such Certificateholder shall satisfy the conditions to receive such form of
payment set forth in the Agreement, or, if not, by check mailed by first class
mail to the address of such Certificateholder appearing in the Certificate
Register. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office designated by the Securities Administrator for such purposes, or such
other location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Trustee and the other
A-6
parties to the Agreement with the consent of the Holders of Certificates
affected by such amendment evidencing the requisite Percentage Interest, as
provided in the Agreement. Any such consent by the Holder of this Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Trustee, the Depositor and the Securities Administrator and
any agent of the Trustee, the Depositor or the Securities Administrator may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Trustee, the
Securities Administrator, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 10.01 of the Agreement
will have the option to effectuate the purchase, in whole, from the Trust Fund
all remaining Mortgage Loans and all property acquired in respect of the
Mortgage Loans at a purchase price determined and in the manner as provided in
the Agreement. The obligations and responsibilities created by this Agreement
will terminate as provided in Section 10.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
A-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
A-8
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to, _____________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number __________, or, if mailed by check, to _______________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or ________________________________________________,
as its agent.
A-9
EXHIBIT B
FORM OF CLASS P CERTIFICATE
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE (THE "TRANSFEROR CERTIFICATE") IN THE FORM OF EXHIBIT H TO THE
AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR
RECEIVES A RULE 144A LETTER IN THE FORM OF EXHIBIT I TO THE AGREEMENT REFERRED
TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR RECEIVES AN OPINION OF COUNSEL,
DELIVERED AT THE EXPENSE OF THE TRANSFEROR, THAT SUCH TRANSFER MAY BE MADE
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE IS AN
INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION LETTER THAT IT IS USING THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR,
TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE
TRUSTEE, THE DEPOSITOR OR THE SECURITIES ADMINISTRATOR TO ANY OBLIGATION IN
ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
TITLE I OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW WITHOUT THE
REPRESENTATION LETTER OR OPINION OF COUNSEL SATISFACTORY TO THE SECURITIES
ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
B-1
Certificate No. : 1
Cut-off Date : August 1, 2006
First Distribution Date : September 25, 2006
Percentage Interest of this Certificate
("Denomination") : [_____]%
------------
CUSIP :
ISIN :
B-2
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-13
Asset-Backed Certificates, Series 2006-13
Class P
evidencing a percentage interest in the distributions allocable to
the Certificates of the above referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Securities
Administrator or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that ▇▇▇▇▇▇▇ ▇▇▇▇▇ is the registered owner
of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Trust Agreement dated
as of the Cut-off Date specified above (the "Agreement") among GS Mortgage
Securities Corp., as depositor (the "Depositor"), Deutsche Bank National Trust
Company, as trustee (the "Trustee") and as a custodian, ▇▇▇▇▇ Fargo Bank,
National Association, as Securities Administrator (in such capacity, the
"Securities Administrator"), JPMorgan Chase Bank, National Association, as a
custodian and U.S. Bank National Association, as a custodian. To the extent
not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the
Trust will be made only upon presentment and surrender of this Certificate at
the office designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless
such disposition is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and any applicable state
securities laws or is made in accordance with the 1933 Act and such laws. In
the event of any such transfer, the Securities Administrator shall require the
transferor to execute a transferor certificate (in substantially the form
attached to the Agreement) and deliver either (i) a Rule 144A Letter, (in
substantially the form attached to the Agreement), or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor. No transfer of a
Certificate of this Class shall be made unless the Securities Administrator
shall have received either (i) a representation letter from the transferee
B-3
of such Certificate, acceptable to and in form and substance satisfactory to
the Securities Administrator, to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code or any materially similar provisions of applicable federal, state or
local law ("Similar Law") or a person acting on behalf of or investing plan
assets of any such plan, which representation letter shall not be an expense
of the Securities Administrator, or (ii) if the transferee is an insurance
company and the certificate has been the subject of an ERISA-Qualifying
Underwriting, a representation letter that it is purchasing such Certificates
with the assets of its general account and that the purchase and holding of
such Certificates satisfy the requirements for exemptive relief under Sections
I and III of PTCE 95-60, or (iii) in the case of a Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or a
plan or arrangement subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments) or a plan subject to Similar Law, or
a trustee of any such plan or any other person acting on behalf of any such
plan or arrangement or using such plan's or arrangement's assets, an Opinion
of Counsel satisfactory to the Securities Administrator, which Opinion of
Counsel shall not be an expense of the Securities Administrator, the
Depositor, the Trustee or the Trust Fund, addressed to the Securities
Administrator, the Trustee and the Depositor to the effect that the purchase
and holding of such Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of ERISA, Section 4975 of the Code
or any Similar Law and will not subject the Trustee to any obligation in
addition to those expressly undertaken in this Agreement or to any liability.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
B-4
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Securities
Administrator
By:
----------------------------------
Authenticated:
By:
----------------------------------
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
B-5
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-13
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2006-13 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing
on the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
for each Distribution Date is the last Business Day of the month immediately
preceding the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer
of immediately available funds to the account of the Holder hereof at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Securities Administrator in
writing at least five (5) Business Days prior to the related Record Date and
such Certificateholder shall satisfy the conditions to receive such form of
payment set forth in the Agreement, or, if not, by check mailed by first class
mail to the address of such Certificateholder appearing in the Certificate
Register. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office designated by the Securities Administrator for such purposes or such
other location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Trustee and the other parties to the Agreement with the
consent of the Holders of Certificates affected by such amendment evidencing
the requisite Percentage Interest, as provided in the Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future
B-6
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Trustee, the Depositor and the Securities Administrator and
any agent of the Trustee, the Depositor or the Securities Administrator may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Trustee, the Depositor, the
Securities Administrator, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 10.01 of the Agreement
will have the option to effectuate the purchase, in whole, from the Trust Fund
all remaining Mortgage Loans and all property acquired in respect of the
Mortgage Loans at a purchase price determined and in the manner as provided in
the Agreement. The obligations and responsibilities created by this Agreement
will terminate as provided in Section 10.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
B-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
B-8
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to, _____________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number __________, or, if mailed by check, to _______________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or ________________________________________________,
as its agent.
B-9
EXHIBIT C
FORM OF CLASS R, CLASS RC AND CLASS RX CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR A REPRESENTATION LETTER TO
THE EFFECT THAT SUCH TRANSFEREE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A
PLAN SUBJECT TO SECTION 4975 OF THE CODE OR A PLAN SUBJECT TO MATERIALLY
SIMILAR PROVISIONS OF APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
OR A PERSON INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR AN
OPINION OF COUNSEL AS DESCRIBED IN THE AGREEMENT. IN THE EVENT THAT SUCH
REPRESENTATION IS VIOLATED, OR ANY ATTEMPT IS MADE TO TRANSFER TO A PLAN OR
ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA, A PLAN SUBJECT TO SECTION 4975 OF
THE CODE OR A PLAN SUBJECT TO SIMILAR LAW, OR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT OR USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT
WITHOUT AN OPINION OF COUNSEL AS DESCRIBED IN THE AGREEMENT, SUCH ATTEMPTED
TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO EFFECT.
Certificate No. : [R][RC][RX]
Cut-off Date : August 1, 2006
First Distribution Date : September 25, 2006
Initial Certificate Balance of this
Certificate ("Denomination") : $100
Initial Certificate Balance of all
Certificates of this Class : $100
CUSIP :
ISIN :
C-1
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-13
Asset-Backed Certificates, Series 2006-13
Class [R][RC][RX]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Principal in respect of this Certificate is distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Securities Administrator or the Trustee referred to below or
any of their respective affiliates. Neither this Certificate nor the Mortgage
Loans are guaranteed or insured by any governmental agency or instrumentality.
This certifies that [____________] is the registered owner of the
Percentage Interest specified above of any monthly distributions due to the
Class [R][RC][RX] Certificates pursuant to a Trust Agreement dated as of the
Cut-off Date specified above (the "Agreement") among GS Mortgage Securities
Corp., as depositor (the "Depositor"), Deutsche Bank National Trust Company,
as trustee (the "Trustee") and as a custodian, ▇▇▇▇▇ Fargo Bank, National
Association, as Securities Administrator (in such capacity, the "Securities
Administrator"), JPMorgan Chase Bank, National Association, as a custodian and
U.S. Bank National Association, as a custodian. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust
Fund will be made only upon presentment and surrender of this Class
[R][RC][RX] Certificate at the office designated by the Securities
Administrator for such purposes.
No transfer of a Class [R][RC][RX] Certificate shall be made unless the
Securities Administrator shall have received a representation letter from the
transferee of such Certificate, acceptable to and in form and substance
satisfactory to the Securities Administrator, to the effect that such
transferee is not an employee benefit plan or arrangement subject to Section
406 of ERISA, a plan or arrangement subject to Section 4975 of the Code or a
plan subject to Similar Law, or a person acting on behalf of any such plan or
arrangement or using the assets of any such plan or arrangement to effect such
transfer, which representation letter shall not be an expense of the
Securities Administrator or the Trust Fund, or, alternatively, an opinion
C-2
of counsel as described in the Agreement. In the event that such
representation is violated, or any attempt is made to transfer to a plan or
arrangement subject to Section 406 of ERISA or a plan subject to Section 4975
of the Code or a plan subject to Similar Law, or a person acting on behalf of
any such plan or arrangement or using the assets of any such plan or
arrangement, without an opinion of counsel as described in the Agreement, such
attempted transfer or acquisition shall be void and of no effect.
Each Holder of this Class [R][RC][RX] Certificate shall be deemed by the
acceptance or acquisition an Ownership Interest in this Class [R][RC][RX]
Certificate to have agreed to be bound by the following provisions, and the
rights of each Person acquiring any Ownership Interest in this Class
[R][RC][RX] Certificate are expressly subject to the following provisions: (i)
each Person holding or acquiring any Ownership Interest in this Class
[R][RC][RX] Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in its
status as a Permitted Transferee, (ii) no Ownership Interest in this Class
[R][RC][RX] Certificate may be registered on the Closing Date or thereafter
transferred, and the Securities Administrator shall not register the Transfer
of this Certificate unless, in addition to the certificates required to be
delivered to the Securities Administrator under Section 5.02(b) of the
Agreement, the Securities Administrator shall have been furnished with a
Transfer Affidavit of the initial owner or the proposed transferee in the form
attached as Exhibit G to the Agreement, (iii) each Person holding or acquiring
any Ownership Interest in this Class [R][RC][RX] Certificate shall agree (A)
to obtain a Transfer Affidavit from any other Person to whom such Person
attempts to Transfer its Ownership Interest this Class [R][RC][RX]
Certificate, (B) to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with any Transfer
of this Class [R][RC][RX] Certificate, (C) not to cause income with respect to
the Class [R][RC][RX] Certificate to be attributable to a foreign permanent
establishment or fixed base, within the meaning of an applicable income tax
treaty, of such Person or any other U.S. Person and (D) not to Transfer the
Ownership Interest in this Class [R][RC][RX] Certificate or to cause the
Transfer of the Ownership Interest in this Class [R][RC][RX] Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee and (iv) any attempted or purported Transfer of the
Ownership Interest in this Class [R][RC][RX] Certificate in violation of the
provisions herein shall be absolutely null and void and shall vest no rights
in the purported Transferee.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
C-3
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Securities
Administrator
By:
----------------------------------
Authenticated:
By:
----------------------------------
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
C-4
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-13
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2006-13 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such day is not a Business Day, the Business
Day immediately following (the "Distribution Date"), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this Certificate is registered at the close of business on the applicable
Record Date in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
Holders of Certificates of the Class to which this Certificate belongs on such
Distribution Date pursuant to the Agreement. The Record Date for each
Distribution Date is the last Business Day of the month immediately preceding
the month in which such Distribution Date occurs.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Securities Administrator in writing at least five
(5) Business Days prior to the related Record Date and such Certificateholder
shall satisfy the conditions to receive such form of payment set forth in the
Agreement, or, if not, by check mailed by first class mail to the address of
such Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office designated by the
Securities Administrator for such purposes, or such other location specified
in the notice to Certificateholders of such final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Trustee and the other parties to the Agreement with
the consent of the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Agreement.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder
C-5
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Securities Administrator upon surrender of this Certificate
for registration of transfer at the office designated by the Securities
Administrator for such purposes, accompanied by a written instrument of
transfer in form satisfactory to the Securities Administrator duly executed by
the holder hereof or such holder's attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest in the
Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, the Depositor, the Securities Administrator and any agent
of the Trustee, the Depositor or the Securities Administrator may treat the
Person in whose name this Certificate is registered as the owner hereof for
all purposes, and none of the Depositor, the Trustee or Securities
Administrator, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than or equal to 10% of the Cut-off Date Pool
Principal Balance, the Person specified in Section 10.01 of the Agreement will
have the option to effectuate the purchase, in whole, from the Trust Fund all
remaining Mortgage Loans and all property acquired in respect of the Mortgage
Loans at a purchase price determined and in the manner as provided in the
Agreement. The obligations and responsibilities created by this Agreement will
terminate as provided in Section 10.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
C-6
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
C-7
DISTRIBUTION INSTRUCTIONS
-------------------------
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to, _____________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number __________, or, if mailed by check, to _______________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or ________________________________________________,
as its agent.
C-8
EXHIBIT D
FORM OF CLASS X CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER ASSETS
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
PROPOSED TRANSFEROR DELIVERS TO THE SECURITIES ADMINISTRATOR A TRANSFEROR
CERTIFICATE (THE "TRANSFEROR CERTIFICATE") IN THE FORM OF EXHIBIT H TO THE
AGREEMENT REFERRED TO HEREIN AND EITHER (I) THE SECURITIES ADMINISTRATOR
RECEIVES A RULE 144A LETTER (THE "RULE 144A LETTER") IN THE FORM OF EXHIBIT I
TO THE AGREEMENT REFERRED TO HEREIN OR (II) THE SECURITIES ADMINISTRATOR
RECEIVES AN OPINION OF COUNSEL, DELIVERED AT THE EXPENSE OF THE TRANSFEROR,
THAT SUCH TRANSFER MAY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR A PLAN
SUBJECT TO APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR A PERSON INVESTING
ON BEHALF OF OR WITH PLAN ASSETS OF SUCH A PLAN, OR IF THE TRANSFEREE IS AN
INSURANCE COMPANY AND THE CERTIFICATE HAS BEEN THE SUBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION LETTER THAT IT IS USING THE
ASSETS OF ITS GENERAL ACCOUNT AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER SECTIONS I AND
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE, THE SECURITIES ADMINISTRATOR AND THE DEPOSITOR,
TO THE EFFECT THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING
OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE
TRUSTEE, THE DEPOSITOR OR THE SECURITIES ADMINISTRATOR TO ANY OBLIGATION IN
ADDITION TO THOSE EXPRESSLY UNDERTAKEN IN THIS AGREEMENT OR TO ANY LIABILITY.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
TITLE I OF ERISA, SECTION 4975 OF THE
D-1
CODE OR SIMILAR LAW WITHOUT THE REPRESENTATION LETTER OR OPINION OF COUNSEL
SATISFACTORY TO THE SECURITIES ADMINISTRATOR AS DESCRIBED ABOVE SHALL BE VOID
AND OF NO EFFECT.
Certificate No. : X-1
Cut-off Date : August 1, 2006
First Distribution Date : September 25, 2006
Percentage Interest of this
Certificate ("Denomination") : 100%
CUSIP :
ISIN :
D-2
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-13
Asset-Backed Certificates, Series 2006-13
Class X
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class.
Distributions in respect of this Certificate are distributable
monthly as set forth herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Securities
Administrator or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
This certifies that [_______________________] is the registered
owner of the Percentage Interest evidenced by this Certificate (obtained by
dividing the denomination of this Certificate by the aggregate of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Trust Agreement dated
as of the Cut-off Date specified above (the "Agreement") among GS Mortgage
Securities Corp., as depositor (the "Depositor"), Deutsche Bank National Trust
Company, as trustee (the "Trustee") and as a custodian, ▇▇▇▇▇ Fargo Bank,
National Association, as Securities Administrator (in such capacity, the
"Securities Administrator"), JPMorgan Chase Bank, National Association, as a
custodian and U.S. Bank National Association, as a custodian. To the extent
not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
This Certificate does not have a Pass-Through Rate and will be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the
Trust will be made only upon presentment and surrender of this Certificate at
the office designated by the Securities Administrator for such purposes or the
office or agency maintained by the Securities Administrator.
No transfer of a Certificate of this Class shall be made unless
such disposition is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and any applicable state
securities laws or is made in accordance with the 1933 Act and such laws. In
the event of any such transfer, the Securities Administrator shall require the
transferor to execute a transferor certificate (in substantially the form
attached to the Agreement) and deliver either (i) a Rule 144A Letter (in
substantially the form attached to the Agreement), or (ii) a written Opinion
of Counsel to the Securities Administrator that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act or is being made pursuant to the 1933 Act, which
Opinion of Counsel shall be an expense of the transferor. No transfer of a
Certificate of this Class shall be made unless the
D-3
Securities Administrator shall have received either (i) a representation
letter from the transferee of such Certificate, acceptable to and in form and
substance satisfactory to the Securities Administrator, to the effect that
such transferee is not an employee benefit plan subject to Section 406 of
ERISA or Section 4975 of the Code or any materially similar provisions of
applicable federal, state or local law ("Similar Law") or a person acting on
behalf of or investing plan assets of any such plan, which representation
letter shall not be an expense of the Securities Administrator, or (ii) if the
transferee is an insurance company and the certificate has been the subject of
an ERISA-Qualifying Underwriting, a representation letter that it is
purchasing such Certificates with the assets of its general account and that
the purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, or (iii) in the case
of a Certificate presented for registration in the name of an employee benefit
plan subject to ERISA, or a plan or arrangement subject to Section 4975 of the
Code (or comparable provisions of any subsequent enactments) or a plan subject
to Similar Law, or a trustee of any such plan or any other person acting on
behalf of any such plan or arrangement or using such plan's or arrangement's
assets, an Opinion of Counsel satisfactory to the Securities Administrator,
which Opinion of Counsel shall not be an expense of the Securities
Administrator, the Depositor, the Trustee or the Trust Fund, addressed to the
Securities Administrator, the Trustee and the Depositor to the effect that the
purchase and holding of such Certificate will not constitute or result in a
non-exempt prohibited transaction within the meaning of ERISA, Section 4975 of
the Code or any Similar Law and will not subject the Trustee to any obligation
in addition to those expressly undertaken in this Agreement or to any
liability.
Reference is hereby made to the further provisions of this
Certificate set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually authenticated by an
authorized signatory of the Securities Administrator.
* * *
D-4
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Securities Administrator
By:
-----------------------------------
Authenticated:
By:
-------------------------------------------------
Authorized Signatory of
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Securities Administrator
D-5
GS MORTGAGE SECURITIES CORP.
GSAA Home Equity Trust 2006-13
Asset-Backed Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as GSAA Home Equity Trust 2006-13 Asset-Backed Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the funds on deposit in the Distribution
Account for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee and the other parties to the Agreement.
Pursuant to the terms of the Agreement, a distribution will be
made on the 25th day of each month or, if such 25th day is not a Business Day,
the Business Day immediately following (the "Distribution Date"), commencing
on the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
for each Distribution Date is the last Business Day of the month immediately
preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer
of immediately available funds to the account of the Holder hereof at a bank
or other entity having appropriate facilities therefor, if such
Certificateholder shall have so notified the Securities Administrator in
writing at least five (5) Business Days prior to the related Record Date and
such Certificateholder shall satisfy the conditions to receive such form of
payment set forth in the Agreement, or, if not, by check mailed by first class
mail to the address of such Certificateholder appearing in the Certificate
Register. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
office designated by the Securities Administrator for such purposes or such
other location specified in the notice to Certificateholders of such final
distribution.
The Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Trustee and the other parties to the Agreement with the
consent of the Holders of Certificates affected by such amendment evidencing
the requisite Percentage Interest, as provided in the Agreement. Any such
consent by
D-6
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange therefor or in lieu hereof whether or
not notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register of the Securities Administrator upon surrender of this
Certificate for registration of transfer at the office designated by the
Securities Administrator for such purposes, accompanied by a written
instrument of transfer in form satisfactory to the Securities Administrator
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates
without coupons in denominations specified in the Agreement. As provided in
the Agreement and subject to certain limitations therein set forth,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Securities Administrator may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Trustee, the Depositor and the Securities Administrator and
any agent of the Trustee, the Depositor or the Securities Administrator may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Trustee, the Depositor, the
Securities Administrator, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than or equal to 10% of the Cut-off Date
Pool Principal Balance, the Person specified in Section 10.01 of the Agreement
will have the option to effectuate the purchase, in whole, from the Trust Fund
all remaining Mortgage Loans and all property acquired in respect of the
Mortgage Loans at a purchase price determined and in the manner as provided in
the Agreement. The obligations and responsibilities created by this Agreement
will terminate as provided in Section 10.01 of the Agreement.
Any term used herein that is defined in the Agreement shall have
the meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
D-7
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a
like denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
D-8
DISTRIBUTION INSTRUCTIONS
-------------------------
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to, _____________________________________________,
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number __________, or, if mailed by check, to _______________________.
Applicable statements should be mailed to ___________________________________,
_____________________________________________________________________________.
This information is provided by ________________________________________,
the assignee named above, or ________________________________________________,
as its agent.
D-9
EXHIBIT E
FORM OF INITIAL CERTIFICATION OF CUSTODIAN
[date]
[Depositor]
[Trustee]
---------------------
---------------------
Re: Trust Agreement, dated as of August 1, 2006 (the
"Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Deutsche Bank National Trust
Company, as trustee (in such capacity, the "Trustee") and as
a custodian, JPMorgan Chase Bank, National Association, as a
custodian, U.S. Bank National Association, as a custodian,
and ▇▇▇▇▇ Fargo Bank, National Association, as securities
administrator (in such capacity, the "Securities
Administrator").
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Trust
Agreement (the "Trust Agreement"), the undersigned, as Custodian, for each
Mortgage Loan listed in the Mortgage Loan Schedule for which the undersigned
is specified as the Custodian (other than any Mortgage Loan listed in the
attached exception report), it has received:
(i) the original Mortgage Note, endorsed as provided in the
following form: "Pay to the order of ________, without recourse"; and
(ii) except with respect to a MERS Loan, an executed Assignment of
Mortgage (which may be included in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Trust Agreement. The Custodian makes no representations as to: (i) the
validity, legality, sufficiency, enforceability, recordability or genuineness
of any of the documents contained in each Mortgage File of any of the Mortgage
Loans identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan or the
perfection or priority of any Mortgage. Notwithstanding anything herein to the
contrary, the Custodian has made no determination and makes no representations
as to whether (i) any endorsement is sufficient to transfer all right, title
and interest of the party so endorsing, as noteholder or assignee thereof, in
E-1
and to that Mortgage Note or (ii) any assignment is in recordable form or
sufficient to effect the assignment of and transfer to the assignee thereof,
under the Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Trust Agreement.
[DEUTSCHE BANK NATIONAL TRUST
COMPANY][JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION][U.S. BANK
NATIONAL ASSOCIATION][▇▇▇▇▇ FARGO
BANK, NATIONAL ASSOCIATION], not in its
individual capacity, but solely as
Custodian
By:_________________________________
Name:_______________________________
Title:______________________________
E-2
EXHIBIT F
FORM OF DOCUMENT CERTIFICATION
AND EXCEPTION REPORT OF CUSTODIAN
[date]
[Depositor]
[Trustee]
---------------------
---------------------
Re: Trust Agreement, dated as of August 1, 2006 (the
"Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Deutsche Bank National Trust
Company, as trustee (in such capacity, the "Trustee") and as
a custodian, JPMorgan Chase Bank, National Association, as a
custodian, U.S. Bank National Association, as a custodian,
and ▇▇▇▇▇ Fargo Bank, National Association, as securities
administrator (in such capacity, the "Securities
Administrator").
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Trust
Agreement (the "Trust Agreement"), the undersigned, as Custodian, hereby
certifies, subject to any exceptions listed on the exception report attached
hereto, that as to each Mortgage Loan listed in the Mortgage Loan Schedule for
which the undersigned is specified as the Custodian (other than any Mortgage
Loan paid in full or listed on the attached exception report) it has received:
(a) the original Mortgage Note, endorsed without recourse in blank
by the last endorsee, including all intervening endorsements showing a
complete chain of endorsement from the originator to the last endorsee;
(b) the original Assignment of Mortgage in blank, unless the
Mortgage Loan is a MERS Loan;
(c) personal endorsement and/or guaranty agreements executed in
connection with all non individual Mortgage Loans (corporations,
partnerships, trusts, estates, etc. (if provided);
(d) the related original Mortgage and evidence of its recording or
a certified copy of the mortgage with evidence of recording;
(e) except with respect to a MERS Loan, originals of any
intervening Mortgage assignment or certified copies in either case
evidencing recording; provided
F-1
that the assignment may be in the form of a blanket assignment or
assignments, a copy of which with evidence of recording shall be
acceptable;
(f) if provided, originals of all assumption, modification,
agreements or certified copies thereof, in either case with evidence of
recording if required to maintain the lien of the mortgage or if
otherwise required, or, if recordation is not required, an original or
copy of the agreement;
(g) an original or copy of a title insurance policy, a certificate
of title, or attorney's opinion of title and abstract of title;
(h) to the extent applicable, (1) an original power of attorney,
or a certified copy thereof, in either case with evidence of recordation
if the document to which such power of attorney relates is recorded, and
(2) if provided, an original or copy of any surety agreement or guaranty
agreement;
(i) for each Mortgage Loan with respect to which the Mortgagor's
name as it appears on the note does not match the borrower's name on the
mortgage loan schedule, one of the following: the original of the
assumption agreement or a certified copy thereof;
(j) a security agreement, chattel mortgage or equivalent document
executed in connection with the mortgage, if provided.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items 2, 8, 33 and 34 of
the Mortgage Loan Schedule accurately reflects information set forth in the
Custodial File.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review of the Custodial File
specifically required in the Trust Agreement. The Custodian makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such
Mortgage Loan or the perfection or priority of any Mortgage. Notwithstanding
anything herein to the contrary, the Custodian has made no determination and
makes no representations as to whether (i) any endorsement is sufficient to
transfer all right, title and interest of the party so endorsing, as
noteholder or assignee thereof, in and to that Mortgage Note or (ii) any
assignment is in recordable form or sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which the assignment
relates.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Trust Agreement.
[DEUTSCHE BANK NATIONAL TRUST
COMPANY][JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION][U.S. BANK
F-2
NATIONAL ASSOCIATION][▇▇▇▇▇ FARGO
BANK, NATIONAL ASSOCIATION], not in its
individual capacity, but solely as
Custodian
By:_________________________________
Name:_______________________________
Title:______________________________
F-3
EXHIBIT G
FORM OF RESIDUAL TRANSFER AFFIDAVIT
GSAA Home Equity Trust 2006-13,
Asset-Backed Certificates, Series 2006-13
STATE OF )
) ss.:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as
follows:
1. The undersigned is an officer of ___________________, the
proposed Transferee of an Ownership Interest in a Class [R][RC][RX]
Certificate (the "Certificate") issued pursuant to the Trust Agreement, dated
as of August 1, 2006 (the "Agreement"), among GS Mortgage Securities Corp., as
depositor (the "Depositor"), Deutsche Bank National Trust Company, as trustee
(the "Trustee") and as a custodian, ▇▇▇▇▇ Fargo Bank, National Association, as
securities administrator (in such capacity, the "Securities Administrator"),
U.S. Bank National Association, as a custodian and JPMorgan Chase Bank,
National Association, as a custodian. Capitalized terms used, but not defined
herein, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf of
the Transferee for the benefit of the Depositor, the Securities Administrator
and the Trustee.
2. The Transferee is, as of the date hereof, and will be, as of
the date of the Transfer, a Permitted Transferee. The Transferee is acquiring
its Ownership Interest in the Certificate for its own account. The Transferee
has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a
tax will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax
will be imposed on a "pass-through entity" holding the Certificate if at any
time during the taxable year of the pass through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass through entity an
affidavit that such record holder is a Permitted Transferee and the pass
through entity does not have actual knowledge that such affidavit is false.
(For this purpose, a "pass through entity" includes a regulated investment
company, a real estate investment trust or common trust fund, a
G-1
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c)
of the Agreement and understands the legal consequences of the acquisition of
an Ownership Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding voiding the
Transfer and mandatory sales. The Transferee expressly agrees to be bound by
and to abide by the provisions of Section 5.02(c) of the Agreement and the
restrictions noted on the face of the Certificate. The Transferee understands
and agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any
Person to whom the Transferee attempts to Transfer its Ownership Interest in
the Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Securities Administrator a certificate
substantially in the form set forth as Exhibit H to the Agreement (a
"Transferor Certificate") to the effect that such Transferee has no actual
knowledge that the Person to which the Transfer is to be made is not a
Permitted Transferee.
7. The Transferee has historically paid its debts as they have
come due, intends to pay its debts as they come due in the future, and
understands that the taxes payable with respect to the Certificate may exceed
the cash flow with respect thereto in some or all periods and intends to pay
such taxes as they become due. The Transferee does not have the intention to
impede the assessment or collection of any tax legally required to be paid
with respect to the Certificate.
8. The Transferee's taxpayer identification number is
__________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a
"noneconomic residual interest" within the meaning of proposed Treasury
regulations promulgated pursuant to the Code and that the transferor of a
noneconomic residual interest will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer was to impede the assessment or collection of tax.
11. The Transferee will not cause income from the Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other
U.S. person.
12. Check one of the following:
[_] The present value of the anticipated tax liabilities associated
with holding the Certificate, as applicable, does not exceed the sum of:
G-2
(i) the present value of any consideration given to the Transferee
to acquire such Certificate;
(ii) the present value of the expected future distributions on
such Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Certificate as the related REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of
the highest rate specified in Section 11(b) of the Code if the Transferee has
been subject to the alternative minimum tax under Section 55 of the Code in
the preceding two years and will compute its taxable income in the current
taxable year using the alternative minimum tax rate) and (ii) present values
are computed using a discount rate equal to the short-term Federal rate
prescribed by Section 1274(d) of the Code for the month of the transfer and
the compounding period used by the Transferee.
[_] The transfer of the Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from
the Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the
Transferee had gross assets for financial reporting purposes (excluding any
obligation of a person related to the Transferee within the meaning of U.S.
Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100 million and
net assets in excess of $10 million;
(iii) the Transferee will transfer the Certificate only to another
"eligible corporation," as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of
Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5) of the
U.S. Treasury Regulations; and
(iv) the Transferee determined the consideration paid to it to
acquire the Certificate based on reasonable market assumptions (including, but
not limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and other factors
specific to the Transferee) that it has determined in good faith.
[_] None of the above.
13. The Transferee is not an employee benefit plan that is subject
to Title I of ERISA or a plan that is subject to Section 4975 of the Code or a
plan subject to any federal, state or local law that is substantially similar
to Title I of ERISA or Section 4975 of the Code, and the Transferee is not
acting on behalf of or investing plan assets of such a plan.
G-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ____ day of _______, 20__.
-------------------------------
Print Name of Transferee
By:______________________________
Name:
Title:
[Corporate Seal]
ATTEST:
-------------------------------
[Assistant] Secretary
Personally appeared before me the above-named __________, known or
proved to me to be the same person who executed the foregoing instrument and
to be the ___________ of the Transferee, and acknowledged that he executed the
same as his free act and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ____ day of ________, 20__.
---------------------------
NOTARY PUBLIC
My Commission expires the __ day
of _________, 20__
G-4
EXHIBIT H
FORM OF TRANSFEROR CERTIFICATE
__________, 20__
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: GSAA Home Equity Trust 2006-13, Asset-Backed Certificates
Series 2006-13, Class [___]
---------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Residual Certificate, (A) we have no knowledge the Transferee is not a
Permitted Transferee and (B) after conducting a reasonable investigation of
the financial condition of the Transferee, we have no knowledge and no reason
to believe that the Transferee will not pay all taxes with respect to the
Residual Certificates as they become due and (C) we have no reason to believe
that the statements made in paragraphs 7, 10 and 11 of the Transferee's
Residual Transfer Affidavit are false.
Very truly yours,
-----------------------------------
Print Name of Transferor
By:
--------------------------------
Authorized Officer
H-1
EXHIBIT I
FORM OF RULE 144A LETTER
____________, 20__
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: GSAA Home Equity Trust 2006-13, Asset-Backed Certificates,
Series 2006-13, Class [__]
----------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we certify
that (a) we understand that the Certificates are not being registered under
the Securities Act of 1933, as amended (the "Act"), or any state securities
laws and are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c) we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) either we are purchasing a Class AV-1, Class
AF-2, Class AF-3, Class AF-4, Class AF-5, Class AF-6, Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, Class B-1 or a Class B-2 Certificate, or we
are not an employee benefit plan that is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or a plan or
arrangement that is subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a plan subject to any federal, state or
local law materially similar to the foregoing provisions of ERISA or the Code,
nor are we acting on behalf of any such plan or arrangement or using the
assets of any such plan or arrangement to effect such acquisition, or, with
respect to a Class B-3, Class X Certificate or Class P Certificate that has
been the subject of an ERISA-Qualifying Underwriting, the purchaser is an
insurance company that is purchasing this certificate with funds contained in
an "insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and the
purchase and holding of such Certificates satisfy the requirements for
exemptive relief under Sections I and III of PTCE 95-60, (e) we have not, nor
has anyone acting on our behalf offered, transferred, pledged, sold or
otherwise disposed of the Certificates, any interest in the Certificates or
any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates, any interest in the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates
or any other similar
I-1
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other
action, that would constitute a distribution of the Certificates under the
Securities Act or that would render the disposition of the Certificates a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates and (f) we are a "qualified
institutional buyer" as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us is
being made in reliance on Rule 144A. We are acquiring the Certificates for our
own account or for resale pursuant to Rule 144A and further, understand that
such Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its own account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in reliance
on Rule 144A, or (ii) pursuant to another exemption from registration under
the Securities Act.
I-2
ANNEX 1 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because (i) the Buyer owned
and/or invested on a discretionary basis $___________(1) in securities (except
for the excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance with Rule
144A and (ii) the Buyer satisfies the criteria in the category marked below.
____ Corporation, etc. The Buyer is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar
business trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
____ Bank. The Buyer (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia, the
business of which is substantially confined to banking and is supervised by
the State or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial statements, a
copy of which is attached hereto.
____ Savings and Loan. The Buyer (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto.
____ Broker-dealer. The Buyer is a dealer registered pursuant to Section 15 of
the Securities Exchange Act of 1934.
____ Insurance Company. The Buyer is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or agency of a State,
territory or the District of Columbia.
--------------------
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case, Buyer
must own and/or invest on a discretionary basis at least $10,000,000 in
securities.
I-3
____ State or Local Plan. The Buyer is a plan established and maintained by a
State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.
____ ERISA Plan. The Buyer is an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security Act of 1974.
____ Investment Advisor. The Buyer is an investment advisor registered under
the Investment Advisors Act of 1940.
____ Small Business Investment Company. Buyer is a small business investment
company licensed by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958.
____ Business Development Company. Buyer is a business development company as
defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph, except (i) where the Buyer
reports its securities holdings in its financial statements on the basis of
their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this certification is made of
any changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Buyer is a bank or savings and loan is provided above, the
Buyer agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
I-4
-----------------------------
Print Name of Transferee
By:
--------------------------
Name:
Title:
Date:
------------------------
I-5
ANNEX 2 TO EXHIBIT I
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"), because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year. For purposes of determining the amount of
securities owned by the Buyer or the Buyer's Family of Investment Companies,
the cost of such securities was used, except (i) where the Buyer or the
Buyer's Family of Investment Companies reports its securities holdings in its
financial statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been published.
If clause (ii) in the preceding sentence applies, the securities may be valued
at market. ____ The Buyer owned $___________ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule
144A). ____ The Buyer is part of a Family of Investment Companies which owned
in the aggregate $__________ in securities (other than the excluded securities
referred to below) as of the end of the Buyer's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue
of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
I-6
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to
which this certification relates of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase of the
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
----------------------------------
Print Name of Transferee
By:_______________________________
Name:
Title:
IF AN ADVISER:
----------------------------------
Print Name of Buyer
Date:_____________________________
I-7
EXHIBIT J
FORM OF BACK-UP CERTIFICATION
(Securities Administrator)
Re: Trust Agreement, dated as of August 1, 2006 (the "Agreement"),
among GS Mortgage Securities Corp., as depositor (the
"Depositor"), Deutsche Bank National Trust Company, as trustee (in
such capacity, the "Trustee") and as a custodian, JPMorgan Chase
Bank, National Association, as a custodian, U.S. Bank National
Association, as a custodian, and ▇▇▇▇▇ Fargo Bank, National
Association, as securities administrator (in such capacity, the
"Securities Administrator").
I, ________________________________, the _______________________ of
[NAME OF COMPANY] (the "Company"), certify to the Depositor, and its officers,
with the knowledge and intent that they will rely upon this certification,
that:
(1) I have reviewed the report on assessment of the Company's
compliance with the servicing criteria set forth in Item 1122(d) of
Regulation AB (the "Servicing Criteria"), provided in accordance with
Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Item 1122 of Regulation AB (the
"Servicing Assessment"), the registered public accounting firm's
attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), all reports on Form 10-D containing statements to
certificateholders filed in respect of the period included in the year
covered by the annual report of the Trust Fund (collectively, the
"Distribution Date Statements");
(2) Assuming the accuracy and completeness of the information
delivered to the Company by the Servicer as provided in the Agreement
and subject to paragraph (4) below, the distribution information
determined by the Company and set forth in the Distribution Date
Statements contained in all Form 10-D's included in the year covered by
the annual report of such Trust on Form 10-K for the calendar year 200[
], is complete and does not contain any material misstatement of fact as
of the last day of the period covered by such annual report;
(3) Based solely on the information delivered to the Company by
the Servicer as provided in the Agreement, (i) the distribution
information required under the Agreement to be contained in the Trust
Fund's Distribution Date Statements and (ii) the servicing information
required to be provided by the Servicer to the Securities Administrator
for inclusion in the Trust Fund's Distribution Date Statements, to the
extent received by the Securities Administrator from the Servicer in
accordance with the Agreement, is included in such Distribution Date
Statements;
(4) The Company is not certifying as to the accuracy, completeness
or correctness of the information which it received from the Servicer
and did not
J-1
independently verify or confirm the accuracy, completeness or
correctness of the information provided by the Servicer;
(5) I am responsible for reviewing the activities performed by the
Company as a person "performing a servicing function" under the
Agreement, and based on my knowledge and the compliance review conducted
in preparing the Servicing Assessment and except as disclosed in the
Servicing Assessment or the Attestation Report, the Company has
fulfilled its obligations under the Agreement; and
(6) The Servicing Assessment and Attestation Report required to be
provided by the Company pursuant to the Agreement, have been provided to
the Depositor. Any material instances of noncompliance described in such
reports have been disclosed to the Depositor. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such
reports.
Date: ________________________________
By: ________________________________
Name:
Title:
J-2
EXHIBIT K
FORM OF SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE STATEMENT
The assessment of compliance to be delivered by the [Securities
Administrator] [Custodian] shall address, at a minimum, the criteria
identified as below as "Applicable Servicing Criteria":
---------------------------------------------------------------------------------------------- --------------------- ---------------
Securities
Servicing Criteria Administrator Custodians
---------------------------------------------------------------------------------------------- --------------------- ---------------
Reference Criteria
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
General Servicing Considerations
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Policies and procedures are instituted to monitor
any performance or other triggers and events of X
1122(d)(1)(i) default in accordance with the transaction agreements.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
If any material servicing activities are
outsourced to third parties, policies and
procedures are instituted to monitor the third
party's performance and compliance with such
1122(d)(1)(ii) activities. servicing
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage
1122(d)(1)(iii) loans are maintained.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
A fidelity bond and errors and omissions policy
is in effect on the party participating in the
servicing function throughout the reporting
period in the amount of coverage required by and
otherwise in accordance with the terms of the
1122(d)(1)(iv) transaction agreements.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Cash Collection and Administration
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related
bank clearing accounts no more than two business X
days following receipt, or such other
1122(d)(2)(i) number of days specified in the transaction agreements.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Disbursements made via wire transfer on behalf of
an obligor or to an investor are made only by X
1122(d)(2)(ii) authorized personnel.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
K-1
---------------------------------------------------------------------------------------------- --------------------- ---------------
Securities
Servicing Criteria Administrator Custodians
---------------------------------------------------------------------------------------------- --------------------- ---------------
Reference Criteria
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Advances of funds or guarantees regarding
collections, cash flows or distributions, and any
interest or other fees charged for such advances,
are made, reviewed and approved as specified
1122(d)(2)(iii) in the transaction agreements.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
The related accounts for the transaction, such as
cash reserve accounts or accounts established as
a form of overcollateralization, are separately X
maintained (e.g., with respect to commingling of
1122(d)(2)(iv) cash) as set forth in the transaction agreements.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Each custodial account is maintained at a
federally insured depository institution as set
forth in the transaction agreements. For purposes
of this criterion, "federally insured depository X
institution" with respect to a foreign financial
institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1)
1122(d)(2)(v) of the Securities Exchange Act.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Unissued checks are safeguarded so as to prevent
1122(d)(2)(vi) unauthorized access. X
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Reconciliations are prepared on a monthly basis
for all asset-backed securities related bank
accounts, including custodial accounts and
related bank clearing accounts. These
reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the
bank statement cutoff date, or such other number X
of days specified in the transaction agreements;
(C) reviewed and approved by someone other than
the person who prepared the reconciliation; and
(D) contain explanations for reconciling items.
These reconciling items are resolved within 90
calendar days of their original identification, or
such other number of days specified in the
1122(d)(2)(vii) transaction agreements.
K-2
---------------------------------------------------------------------------------------------- --------------------- ---------------
Securities
Servicing Criteria Administrator Custodians
---------------------------------------------------------------------------------------------- --------------------- ---------------
Reference Criteria
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Investor Remittances and Reporting
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Reports to investors, including those to be filed
with the Commission, are maintained in accordance
with the transaction agreements and applicable
Commission requirements. Specifically, such
reports (A) are prepared in accordance with
timeframes and other terms set forth in the
transaction agreements; (B) provide information X
calculated in accordance with the terms specified
in the transaction agreements; (C) are filed with
the Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid
principal balance and number of
1122(d)(3)(i) mortgage loans serviced by the Servicer.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other X
1122(d)(3)(ii) terms set forth in the transaction agreements.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Disbursements made to an investor are posted
within two business days to the Servicer's X
investor records, or such other
1122(d)(3)(iii) number of days specified in the transaction agreements.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Amounts remitted to investors per the investor
reports agree with cancelled checks, or other X
1122(d)(3)(iv) form of payment, or custodial bank statements.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Pool Asset Administration
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Collateral or security on mortgage loans is maintained
as required by the transaction agreements or related X
1122(d)(4)(i) mortgage loan documents.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Mortgage loan and related documents are safeguarded
1122(d)(4)(ii) as required by the transaction agreements. X
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Any additions, removals or substitutions to the
asset pool are made, reviewed and
K-3
---------------------------------------------------------------------------------------------- --------------------- ---------------
Securities
Servicing Criteria Administrator Custodians
---------------------------------------------------------------------------------------------- --------------------- ---------------
Reference Criteria
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Investor Remittances and Reporting
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
approved in accordance with any conditions or
1122(d)(4)(iii) requirements in the transaction agreements.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Payments on mortgage loans, including any
payoffs, made in accordance with the related
mortgage loan documents are posted to the
Servicer's obligor records maintained no more
than two business days after receipt, or such
other number of days specified in the transaction
agreements, and allocated to principal, interest
or other items (e.g., escrow) in accordance
1122(d)(4)(iv) with the related mortgage loan documents.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
The Servicer's records regarding the mortgage
loans agree with the Servicer's records with
respect to an obligor's unpaid
1122(d)(4)(v) principal balance.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan
modifications or re-agings) are made, reviewed
and approved by authorized personnel in
accordance with the transaction agreements and
1122(d)(4)(vi) related pool asset documents.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds in
lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated,
conducted and concluded in accordance with the
timeframes or other requirements established by
1122(d)(4)(vii) the transaction agreements.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Records documenting collection efforts are
maintained during the period a mortgage loan is
delinquent in accordance with the transaction
agreements. Such records are maintained on at
least a monthly basis, or such other period
specified in the transaction agreements, and
describe the entity's activities in monitoring
delinquent mortgage loans including, for example,
1122(d)(4)(viii) phone calls,
K-4
---------------------------------------------------------------------------------------------- --------------------- ---------------
Securities
Servicing Criteria Administrator Custodians
---------------------------------------------------------------------------------------------- --------------------- ---------------
Reference Criteria
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Investor Remittances and Reporting
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
letters and payment rescheduling
plans in cases where delinquency is deemed
1122(d)(4)(viii) temporary (e.g., illness or unemployment).
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Adjustments to interest rates or rates of return
for mortgage loans with variable rates are
1122(d)(4)(ix) computed based on the related mortgage loan documents.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Regarding any funds held in trust for an obligor
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's
mortgage loan documents, on at least an annual
basis, or such other period specified in the
transaction agreements; (B) interest on such
funds is paid, or credited, to obligors in
accordance with applicable mortgage loan
documents and state laws; and (C) such funds are
returned to the obligor within 30 calendar days
of full repayment of the related mortgage loans,
or such other number of days specified in the
1122(d)(4)(x) transaction agreements.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Payments made on behalf of an obligor (such as
tax or insurance payments) are made on or before
the related penalty or expiration dates, as
indicated on the appropriate bills or notices for
such payments, provided that such support has
been received by the servicer at least 30
calendar days prior to these dates, or such other
number of days specified in the transaction
1122(d)(4)(xi) agreements.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Any late payment penalties in connection with any
payment to be made on behalf of an obligor are
paid from the servicer's funds and not charged to
the obligor, unless the late payment was due
1122(d)(4)(xii) to the obligor's error or omission.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Disbursements made on behalf of an obligor are
posted within two business days to the obligor's
records maintained by the servicer, or such other
number of days specified in the
K-5
---------------------------------------------------------------------------------------------- --------------------- ---------------
Securities
Servicing Criteria Administrator Custodians
---------------------------------------------------------------------------------------------- --------------------- ---------------
Reference Criteria
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Investor Remittances and Reporting
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
1122(d)(4)(xiii) transaction agreements.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Delinquencies, charge-offs and uncollectible
accounts are recognized and recorded in
1122(d)(4)(xiv) accordance with the transaction agreements.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
Any external enhancement or other support,
identified in Item 1114(a)(1) through (3) or Item
1115 of Regulation AB, is maintained as set forth in X
1122(d)(4)(xv) the transaction agreements.
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
---------------------------- ----------------------------------------------------------------- --------------------- ---------------
K-6
EXHIBIT L-1
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
To: U.S. Bank National Assoc. Attention: Document Custody Services
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇-▇▇-▇▇▇▇ FAX: (▇▇▇) ▇▇▇-▇▇▇▇ or ▇▇▇-▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Custodial Agreement between U.S. Bank National Association, a custodian,
and ___________________ as the company stated in the "agreement".
In connection with and pursuant to Section____________, of the agreement, we
request the release and acknowledge of the custodial file for the mortgage
loan described below, for the reason indicated:
FROM: Servicer:________________________________________________________,
City/State______________
SERVICER LOAN #: ___________________________,
U.S. BANK#_____________________________________,
Deal Name: ____________________,
Mortgagor's Name: ____________________________ Original loan amount: ______
Property Address: _____________________________ Payment amount: __________
City/State/Zip: _______________________________ Interest rate: ______________
REASON FOR REQUESTING DOCUMENTS (check one)
-------------------------------------------
________1. Loan paid in full
________2. Loan in foreclosure
________3. Loan being substituted
________4. Loan being liquidated by company
________5. Other (please explain) ____________________________________________
L-1-1
If box 1 or 4 above is checked, and if all or part of the Custodial File was
previously released to us, then please provide a copy of the previous release
request (RR) to us as well as any additional documents in your possession
relating to the above specified mortgage loan.
If box 2 or 5 above is checked, then upon our return to you as custodian, all
of the documents for the above specified mortgage loan, please acknowledge
your receipt by signing in the space indicated below, and returning this form
to us.
COMPANY NAME:__________________________________PHONE#_________________________
AUTHORIZED SIGNER: ______________________________________________________
NAME(TYPED):_____________________________________DATE:___________________
PHONE #:___________________________________________ DATE:_________________
________________________________________________________________________________
PLEASE MAIL DOCUMENTS BACK TO:
------------------------------
______________________________________________________________________________
______________________________________________________________________________
______________________________
________________________________________________________________________________
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
To: Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: Trust Agreement, dated as of August 1, 2006 (the "Agreement"), among GS
Mortgage Securities Corp., as depositor (the "Depositor"), Deutsche Bank
National Trust Company, as trustee (in such capacity, the "Trustee") and as a
custodian, JPMorgan Chase Bank, National Association, as a custodian, U.S.
Bank National Association, as a custodian, and ▇▇▇▇▇ Fargo Bank, National
Association, as securities administrator (in such capacity, the "Securities
Administrator").
In connection with and pursuant to Section____________, of the agreement, we
request the release and acknowledge of the custodial file for the mortgage
loan described below, for the reason indicated below. Further, any payments
received by the Servicer listed below in connection with this request for
release have been deposited into the Distribution Account for the benefit of
the Trust.
FROM: Servicer:____________________________________, City/State______________
SERVICER LOAN #: ___________________________,
DEUTSCHE BANK #_____________________________________,
Deal Name: ____________________,
Mortgagor's Name: ____________________________ Original loan amount: ________
Property Address: _____________________________ Payment amount: ____________
City/State/Zip: _______________________________ Interest rate: ________________
REASON FOR REQUESTING DOCUMENTS (check one)
________1. Loan paid in full
________2. Loan in foreclosure
________3. Loan being substituted
________4. Loan being liquidated by company
L-2-1
________5. Other (please explain) _________________________________________
If box 1 or 4 above is checked, and if all or part of the Custodial File was
previously released to us, then please provide a copy of the previous release
request (RR) to us as well as any additional documents in your possession
relating to the above specified mortgage loan.
If box 2 or 5 above is checked, then upon our return to you as custodian, all
of the documents for the above specified mortgage loan, please acknowledge
your receipt by signing in the space indicated below, and returning this form
to us.
COMPANY NAME:_______________________PHONE#__________________________________
AUTHORIZED SIGNER: ____________________________________________________
NAME(TYPED):__________________________DATE:____________________________
PHONE #:________________________________ DATE:__________________________
________________________________________________________________________________
PLEASE MAIL DOCUMENTS BACK TO:
------------------------------
______________________________________________________________________________
______________________________________________________________________________
______________________________
________________________________________________________________________________
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF REQUEST FOR RELEASE OF DOCUMENTS
To: JPMorgan Chase Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
RE: Trust Agreement, dated as of August 1, 2006 (the "Agreement"), among GS
Mortgage Securities Corp., as depositor (the "Depositor"), Deutsche Bank
National Trust Company, as trustee (in such capacity, the "Trustee") and as a
custodian, JPMorgan Chase Bank, National Association, as a custodian, U.S.
Bank National Association, as a custodian, and ▇▇▇▇▇ Fargo Bank, National
Association, as securities administrator (in such capacity, the "Securities
Administrator").
In connection with and pursuant to Section____________, of the agreement, we
request the release and acknowledge of the custodial file for the mortgage
loan described below, for the reason indicated below:
FROM: Servicer:____________________________________, City/State______________
SERVICER LOAN #: ___________________________,
JPMORGAN CHASE BANK, N.A. #_____________________________________,
Deal Name: ____________________,
Mortgagor's Name: ________________________ Original loan amount: ________
Property Address: _________________________ Payment amount: ____________
City/State/Zip: ___________________________ Interest rate: ________________
REASON FOR REQUESTING DOCUMENTS (check one)
________1. Loan paid in full
________2. Loan in foreclosure
________3. Loan being substituted
________4. Loan being liquidated by company
________5. Other (please explain) __________________________________________
L-3-1
If box 1 or 4 above is checked, and if all or part of the Custodial File was
previously released to us, then please provide a copy of the previous release
request (RR) to us as well as any additional documents in your possession
relating to the above specified mortgage loan.
If box 2 or 5 above is checked, then upon our return to you as custodian, all
of the documents for the above specified mortgage loan, please acknowledge
your receipt by signing in the space indicated below, and returning this form
to us.
COMPANY NAME:_____________________________PHONE#_______________________________
AUTHORIZED SIGNER: __________________________________________________________
NAME(TYPED):________________________________DATE:____________________________
PHONE #:_______________________________________ DATE:__________________________
________________________________________________________________________________
PLEASE MAIL DOCUMENTS BACK TO:
------------------------------
______________________________________________________________________________
______________________________________________________________________________
______________________________
________________________________________________________________________________
L-3-2
EXHIBIT M
Form 8-K Disclosure Information
------------------------------------------------------------------------------------------------------------------------------------
FORM 8-K DISCLOSURE INFORMATION
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------- ----------------------------------------------------------------
Item on Form 8-K Party Responsible
------------------------------------------------------------------- ----------------------------------------------------------------
Item 1.01-Entry into a Material Definitive Agreement The party to this Agreement entering into such
material definitive agreement (excluding the
Trustee)
Disclosure is required regarding entry into or amendment of any
definitive agreement that is material to the securitization, even if
depositor is not a party.
Examples: servicing agreement, custodial agreement.
Note: disclosure not required as to definitive agreements that are
fully disclosed in the prospectus
------------------------------------------------------------------- ----------------------------------------------------------------
Item 1.02-Termination of a Material Definitive Agreement The party to this Agreement entering into such
material definitive agreement (excluding the Trustee)
Disclosure is required regarding termination of any definitive
agreement that is material to the securitization (other than
expiration in accordance with its terms), even if depositor
is not a party.
Examples: servicing agreement, custodial agreement.
------------------------------------------------------------------- ----------------------------------------------------------------
Item 1.03- Bankruptcy or Receivership
Disclosure is required regarding the bankruptcy or receivership,
with respect to any of the following:
------------------------------------------------------------------- ----------------------------------------------------------------
o Sponsor (Seller) Depositor/Sponsor (Seller)
------------------------------------------------------------------- ----------------------------------------------------------------
o Depositor Depositor
------------------------------------------------------------------- ----------------------------------------------------------------
o Affiliated Servicer Servicer
------------------------------------------------------------------- ----------------------------------------------------------------
o Other Servicer servicing 20% or more of the pool assets at the Servicer
time of the report
------------------------------------------------------------------- ----------------------------------------------------------------
o Other material servicers Servicer
------------------------------------------------------------------- ----------------------------------------------------------------
o Trustee Trustee
------------------------------------------------------------------- ----------------------------------------------------------------
o Securities Administrator Securities Administrator
------------------------------------------------------------------- ----------------------------------------------------------------
o Significant Obligor Depositor
------------------------------------------------------------------- ----------------------------------------------------------------
o Credit Enhancer (10% or more) Depositor
------------------------------------------------------------------- ----------------------------------------------------------------
o Derivative Counterparty Depositor
------------------------------------------------------------------- ----------------------------------------------------------------
o Custodian Custodian
------------------------------------------------------------------- ----------------------------------------------------------------
M-1
----------------------------------------------------------------------------------------------
FORM 8-K DISCLOSURE INFORMATION
----------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
------------------------------------------------ ---------------------------------------------
Item 1.01- Entry into a Material Definitive The party to this Agreement entering into
Agreement such material definitive agreement
(excluding the Trustee)
Disclosure is required regarding entry into or
amendment of any definitive agreement that is
material to the securitization, even if
depositor is not a party.
Examples: servicing agreement, custodial
agreement.
Note: disclosure not required as to definitive
agreements that are fully disclosed in the
prospectus
------------------------------------------------ ---------------------------------------------
Item 1.02- Termination of a Material The party to this Agreement entering into
Definitive Agreement such material definitive agreement
(excluding the Trustee)
Disclosure is required regarding termination
of any definitive agreement that is material
to the securitization (other than expiration
in accordance with its terms), even if
depositor is not a party.
Examples: servicing agreement, custodial
agreement.
------------------------------------------------ ---------------------------------------------
Item 1.03- Bankruptcy or Receivership
Disclosure is required regarding the bankruptcy
or receivership, with respect to any of the
following:
------------------------------------------------ ---------------------------------------------
o Sponsor (Seller) Depositor/Sponsor (Seller)
------------------------------------------------ ---------------------------------------------
o Depositor Depositor
------------------------------------------------ ---------------------------------------------
o Affiliated Servicer Servicer
------------------------------------------------ ---------------------------------------------
o Other Servicer servicing 20% or more of the Servicer
pool assets at the time of the report
------------------------------------------------ ---------------------------------------------
o Other material servicers Servicer
------------------------------------------------ ---------------------------------------------
o Trustee Trustee
------------------------------------------------ ---------------------------------------------
o Securities Administrator Securities Administrator
------------------------------------------------ ---------------------------------------------
o Significant Obligor Depositor
------------------------------------------------ ---------------------------------------------
o Credit Enhancer (10% or more) Depositor
------------------------------------------------ ---------------------------------------------
o Derivative Counterparty Depositor
------------------------------------------------ ---------------------------------------------
o Custodian Custodian
------------------------------------------------ ---------------------------------------------
M-1
----------------------------------------------------------------------------------------------
FORM 8-K DISCLOSURE INFORMATION
----------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
------------------------------------------------ ---------------------------------------------
Item 2.04- Triggering Events that Accelerate Securities Administrator
or Increase a Direct Financial Obligation or
an Obligation under an Off-Balance Sheet
Arrangement
Includes an early amortization, performance
trigger or other event, including event of
default, that would materially alter the
payment priority/distribution of cash
flows/amortization schedule.
Disclosure will be made of events other than
waterfall triggers which are disclosed in the
monthly statements to the certificateholders.
------------------------------------------------ ---------------------------------------------
Item 3.03- Material Modification to Rights of Securities Administrator
Security Holders
Disclosure is required of any material
modification to documents defining the rights
of Certificateholders, including the Pooling
and Servicing Agreement.
------------------------------------------------ ---------------------------------------------
Item 5.03- Amendments of Articles of (i) Securities Administrator and (ii)
Incorporation or Bylaws; Change of Fiscal Year Depositor with respect to any information
Disclosure is required of any amendment "to relating to the Depositor
the governing documents of the issuing entity".
------------------------------------------------ ---------------------------------------------
Item 6.01- ABS Informational and Computational Depositor
Material
------------------------------------------------ ---------------------------------------------
Item 6.02- Change of Servicer or Securities Securities Administrator/
Administrator Servicer
Requires disclosure of any removal,
replacement, substitution or addition of any
affiliated servicer, other servicer servicing
10% or more of pool assets at time of report,
other material servicers or trustee.
------------------------------------------------ ---------------------------------------------
Reg AB disclosure about any new servicer is Servicer/ Depositor
also required.
------------------------------------------------ ---------------------------------------------
Reg AB disclosure about any new Trustee is also successor Trustee
required.
------------------------------------------------ ---------------------------------------------
Item 6.03- Change in Credit Enhancement or Depositor and Securities Administrator
External Support
Covers termination of any enhancement in manner
other than by its terms, the addition of an
enhancement, or a material change in the
------------------------------------------------ ---------------------------------------------
M-2
----------------------------------------------------------------------------------------------
FORM 8-K DISCLOSURE INFORMATION
----------------------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
------------------------------------------------ ---------------------------------------------
enhancement provided. Applies to external
credit enhancements as well as derivatives.
------------------------------------------------ ---------------------------------------------
Reg AB disclosure about any new enhancement Depositor
provider is also required.
------------------------------------------------ ---------------------------------------------
Item 6.04- Failure to Make a Required Securities Administrator
Distribution
------------------------------------------------ ---------------------------------------------
Item 6.05- Securities Act Updating Disclosure Depositor
If any material pool characteristic differs by
5% or more at the time of issuance of the
securities from the description in the final
prospectus, provide updated Reg AB disclosure
about the actual asset pool.
------------------------------------------------ ---------------------------------------------
If there are any new servicers or originators Depositor
required to be disclosed under Regulation AB as
a result of the foregoing, provide the
information called for in Items 1108 and 1110
respectively.
------------------------------------------------ ---------------------------------------------
Item 7.01- Reg FD Disclosure All parties (excluding the Trustee and any
Custodian)
------------------------------------------------ ---------------------------------------------
Item 8.01- Other Events Depositor
Any event, with respect to which information
is not otherwise called for in Form 8-K, that
the registrant deems of importance to
certificateholders.
------------------------------------------------ ---------------------------------------------
Item 9.01- Financial Statements and Exhibits Responsible party for reporting/disclosing
the financial statement or exhibit
------------------------------------------------ ---------------------------------------------
M-3
EXHIBIT N
Additional Form 10-D Disclosure
----------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
----------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
------------------------------------------------ ---------------------------------------------
Item 1: Distribution and Pool Performance
Information
------------------------------------------------ ---------------------------------------------
Information included in the [Monthly Statement] Servicer and Securities Administrator
------------------------------------------------ ---------------------------------------------
Any information required by 1121 which is NOT Depositor
included on the [Monthly Statement]
------------------------------------------------ ---------------------------------------------
Item 2: Legal Proceedings
Any legal proceeding pending against the
following entities or their respective
property, that is material to
Certificateholders, including any proceedings
known to be contemplated by governmental
authorities:
------------------------------------------------ ---------------------------------------------
o Issuing Entity (Trust Fund) Securities Administrator and Depositor
------------------------------------------------ ---------------------------------------------
o Sponsor (Seller) Seller (if a party to the Pooling and
Servicing Agreement) or Depositor
------------------------------------------------ ---------------------------------------------
o Depositor Depositor
------------------------------------------------ ---------------------------------------------
o Trustee Trustee
------------------------------------------------ ---------------------------------------------
o Securities Administrator Securities Administrator
------------------------------------------------ ---------------------------------------------
o Custodian Custodian
------------------------------------------------ ---------------------------------------------
o 1110(b) Originator Depositor
------------------------------------------------ ---------------------------------------------
o Any 1108(a)(2) Servicer (other than Servicer
Securities Administrator)
------------------------------------------------ ---------------------------------------------
o Any other party contemplated by 1100(d)(1) Depositor
------------------------------------------------ ---------------------------------------------
Item 3: Sale of Securities and Use of Proceeds Depositor (with respect to the Closing Date)
Information from Item 2(a) of Part II of Form
10-Q:
With respect to any sale of securities by the
sponsor, depositor or issuing entity, that are
backed by the same asset pool or are otherwise
issued by the issuing entity, whether or not
registered, provide the sales and use of
proceeds information in Item 701 of Regulation
S-K. Pricing information can be omitted if
securities were not registered.
------------------------------------------------ ---------------------------------------------
Item 4: Defaults Upon Senior Securities Securities Administrator
------------------------------------------------ ---------------------------------------------
N-1
----------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
----------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
------------------------------------------------ ---------------------------------------------
Information from Item 3 of Part II of Form
10-Q:
Report the occurrence of any Event of Default
(after expiration of any grace period and
provision of any required notice)
------------------------------------------------ ---------------------------------------------
Item 5: Submission of Matters to a Vote of Securities Administrator
Security Holders
Information from Item 4 of Part II of Form 10-Q
------------------------------------------------ ---------------------------------------------
Item 6: Significant Obligors of Pool Assets Depositor
Item 1112(b) - Significant Obligor Financial
Information*
------------------------------------------------ ---------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Item.
------------------------------------------------ ---------------------------------------------
Item 7: Significant Enhancement Provider
Information
Item 1114(b)(2) - Credit Enhancement Provider
Financial Information*
------------------------------------------------ ---------------------------------------------
o Determining applicable disclosure threshold Depositor
------------------------------------------------ ---------------------------------------------
o Requesting required financial information Depositor
(including any required accountants' consent
to the use thereof) or effecting incorporation
by reference
------------------------------------------------ ---------------------------------------------
Item 1115(b) - Derivative Counterparty
Financial Information*
------------------------------------------------ ---------------------------------------------
o Determining current maximum probable exposure Depositor
------------------------------------------------ ---------------------------------------------
o Determining current significance percentage Depositor
------------------------------------------------ ---------------------------------------------
o Requesting required financial information Depositor
(including any required accountants' consent
to the use thereof) or effecting incorporation
by reference
------------------------------------------------ ---------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to
the Items.
------------------------------------------------ ---------------------------------------------
N-2
----------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
----------------------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
------------------------------------------------ ---------------------------------------------
Item 8: Other Information Any party responsible for the applicable
disclosure items on Form 8-K
Disclose any information required to be
reported on Form 8-K during the period covered
by the Form 10-D but not reported
------------------------------------------------ ---------------------------------------------
Item 9: Exhibits
------------------------------------------------ ---------------------------------------------
Monthly Statement to Certificateholders Securities Administrator
------------------------------------------------ ---------------------------------------------
Exhibits required by Item 601 of Regulation Depositor
S-K, such as material agreements
------------------------------------------------ ---------------------------------------------
N-3
EXHIBIT O
Additional Form 10-K Disclosure
----------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
----------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
------------------------------------------------ ---------------------------------------------
Item 1B: Unresolved Staff Comments Depositor
------------------------------------------------ ---------------------------------------------
Item 9B: Other Information Any party responsible for disclosure items
Disclose any information required to be on Form 8-K
reported on Form 8-K during the fourth quarter
covered by the Form 10-K but not reported
------------------------------------------------ ---------------------------------------------
Item 15: Exhibits, Financial Statement (i) As to agreements, Securities
Schedules Administrator/Depositor and (ii) as to
financial statements, Reporting Parties (as
to themselves)
------------------------------------------------ ---------------------------------------------
Reg AB Item 1112(b): Significant Obligors of
Pool Assets
------------------------------------------------ ---------------------------------------------
Significant Obligor Financial Information* Depositor
------------------------------------------------ ---------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Item.
------------------------------------------------ ---------------------------------------------
Reg AB Item 1114(b)(2): Credit Enhancement
Provider Financial Information
------------------------------------------------ ---------------------------------------------
o Determining applicable disclosure threshold Depositor
------------------------------------------------ ---------------------------------------------
o Requesting required financial information Depositor
(including any required accountants' consent to
the use thereof) or effecting incorporation by
reference
------------------------------------------------ ---------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Items.
------------------------------------------------ ---------------------------------------------
Reg AB Item 1115(b): Derivative Counterparty
Financial Information
------------------------------------------------ ---------------------------------------------
o Determining current maximum probable exposure Depositor
------------------------------------------------ ---------------------------------------------
o Determining current significance percentage Depositor
------------------------------------------------ ---------------------------------------------
o Requesting required financial information Depositor
(including any required accountants' consent to
the use thereof) or effecting incorporation by
reference
------------------------------------------------ ---------------------------------------------
*This information need only be reported on the
Form 10-D for the distribution period in which
updated information is required pursuant to the
Items.
------------------------------------------------ ---------------------------------------------
O-1
----------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
----------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
------------------------------------------------ ---------------------------------------------
Reg AB Item 1117: Legal Proceedings
Any legal proceeding pending against the
following entities or their respective
property, that is material to
Certificateholders, including any proceedings
known to be contemplated by governmental
authorities:
------------------------------------------------ ---------------------------------------------
o Issuing Entity (Trust Fund) Securities Administrator and Depositor
------------------------------------------------ ---------------------------------------------
o Sponsor (Seller) Seller (if a party to the Trust Agreement)
or Depositor
------------------------------------------------ ---------------------------------------------
o Depositor Depositor
------------------------------------------------ ---------------------------------------------
o Trustee Trustee
------------------------------------------------ ---------------------------------------------
o Securities Administrator Securities Administrator
------------------------------------------------ ---------------------------------------------
o Custodian Custodian
------------------------------------------------ ---------------------------------------------
o 1110(b) Originator Depositor
------------------------------------------------ ---------------------------------------------
o Any 1108(a)(2) Servicer (other than the Servicer
Securities Administrator)
------------------------------------------------ ---------------------------------------------
o Any other party contemplated by 1100(d)(1) Depositor
------------------------------------------------ ---------------------------------------------
Reg AB Item 1119: Affiliations and
Relationships
------------------------------------------------ ---------------------------------------------
Whether (a) the Sponsor (Seller), Depositor or Depositor as to (a)
Issuing Entity is an affiliate of the Sponsor/Seller as to (a)
following parties, and (b) to the extent known
and material, any of the following parties are
affiliated with one another:
------------------------------------------------ ---------------------------------------------
o Securities Administrator Securities Administrator
------------------------------------------------ ---------------------------------------------
o Custodian Custodian
------------------------------------------------ ---------------------------------------------
o Any other 1108(a)(3) servicer Servicer
------------------------------------------------ ---------------------------------------------
o Any 1110 Originator Depositor/Sponsor
------------------------------------------------ ---------------------------------------------
o Any 1112(b) Significant Obligor Depositor/Sponsor
------------------------------------------------ ---------------------------------------------
o Any 1114 Credit Enhancement Provider Depositor/Sponsor
------------------------------------------------ ---------------------------------------------
o Any 1115 Derivate Counterparty Provider Depositor/Sponsor
------------------------------------------------ ---------------------------------------------
o Any other 1101(d)(1) material party Depositor/Sponsor
------------------------------------------------ ---------------------------------------------
Whether there are any "outside the ordinary Depositor as to (a)
course business arrangements" other than would Sponsor/Seller as to (a)
be obtained in an arm's length transaction
between (a) the Sponsor (Seller), Depositor or
Issuing Entity on the one hand, and (b) any of
the following parties (or their affiliates) on
the other hand, that exist currently or within
the past two years and that are material to a
Certificateholder's understanding of the
Certificates:
------------------------------------------------ ---------------------------------------------
o Securities Administrator Securities Administrator
------------------------------------------------ ---------------------------------------------
O-2
----------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
----------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
------------------------------------------------ ---------------------------------------------
o Trustee Depositor
------------------------------------------------ ---------------------------------------------
o Any other 1108(a)(3) servicer Servicer
------------------------------------------------ ---------------------------------------------
o Any 1110 Originator Depositor/Sponsor
------------------------------------------------ ---------------------------------------------
o Any 1112(b) Significant Obligor Depositor/Sponsor
------------------------------------------------ ---------------------------------------------
o Any 1114 Credit Enhancement Provider Depositor/Sponsor
------------------------------------------------ ---------------------------------------------
o Any 1115 Derivate Counterparty Provider Depositor/Sponsor
------------------------------------------------ ---------------------------------------------
o Any other 1101(d)(1) material party Depositor/Sponsor
------------------------------------------------ ---------------------------------------------
Whether there are any specific relationships Depositor as to (a)
involving the transaction or the pool assets Sponsor/Seller as to (a)
between (a) the Sponsor (Seller), Depositor or
Issuing Entity on the one hand, and (b) any of
the following parties (or their affiliates) on
the other hand, that exist currently or within
the past two years and that are material:
------------------------------------------------ ---------------------------------------------
o Securities Administrator Securities Administrator
------------------------------------------------ ---------------------------------------------
o Any other 1108(a)(3) servicer Servicer
------------------------------------------------ ---------------------------------------------
o Any 1110 Originator Depositor/Sponsor
------------------------------------------------ ---------------------------------------------
o Any 1112(b) Significant Obligor Depositor/Sponsor
------------------------------------------------ ---------------------------------------------
o Any 1114 Credit Enhancement Provider Depositor/Sponsor
------------------------------------------------ ---------------------------------------------
o Any 1115 Derivate Counterparty Provider Depositor/Sponsor
------------------------------------------------ ---------------------------------------------
o Any other 1101(d)(1) material party Depositor/Sponsor
------------------------------------------------ ---------------------------------------------
------------------------------------------------ ---------------------------------------------
O-3
EXHIBIT P
Form of Master Loan Purchase Agreement, between various sellers
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company
[See Exhibit 99.1 to Form 8-K/A filed with the Commission on
February 14, 2006, Accession No. 0000905148-06-001326]
P-1
EXHIBIT Q
Servicing Agreement, dated as of June 30, 2006, between ▇▇▇▇▇
Fargo Bank, National Association and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Company
[See Attached]
================================================================================
▇▇▇▇▇▇▇ SACHS MORTGAGE COMPANY
Owner
and
▇▇▇▇▇ FARGO BANK, N.A.
Servicer
SERVICING AGREEMENT
Dated as of June 30, 2006
Fixed and Adjustable Rate Residential Mortgage Loans
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
ARTICLE II
POSSESSION OF MORTGAGE FILES; BOOKS AND RECORDS;
CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS
Section 2.01 Possession of Mortgage Files; Maintenance of Servicing
Files........................................................11
Section 2.02 Books and Records; Transfers of Mortgage Loans................11
Section 2.03 Custodial Agreement; Delivery of Documents....................12
ARTICLE III
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section 3.01 Servicer Representations and Warranties.......................13
Section 3.02 Remedies......................................................15
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Servicer to Act as Servicer...................................15
Section 4.02 Liquidation of Mortgage Loans.................................17
Section 4.03 Collection of Mortgage Loan Payments..........................18
Section 4.04 Establishment of and Deposits to Custodial Account............18
Section 4.05 Permitted Withdrawals From Custodial Account..................19
Section 4.06 Establishment of and Deposits to Escrow Account...............20
Section 4.07 Permitted Withdrawals From Escrow Account.....................21
Section 4.08 Payment of Taxes, Insurance and Other Charges.................22
Section 4.09 Protection of Accounts........................................22
Section 4.10 Maintenance of Hazard Insurance...............................22
Section 4.11 Maintenance of Mortgage Impairment Insurance..................23
Section 4.12 Maintenance of Fidelity Bond and Errors and Omissions
Insurance....................................................24
Section 4.13 Inspections...................................................24
Section 4.14 Restoration of Mortgaged Property.............................24
Section 4.15 Maintenance of PMI Policy or LPMI Policy; Claims..............25
Section 4.16 Title, Management and Disposition of REO Property.............26
Section 4.17 Real Estate Owned Reports.....................................27
Section 4.18 Liquidation Reports...........................................27
-i-
Section 4.19 Reports of Foreclosures and Abandonments of Mortgaged
Property.....................................................27
Section 4.20 Application of Buydown Funds..................................27
Section 4.21 Notification of Adjustments...................................28
Section 4.22 Confidentiality/Protection of Customer Information............28
Section 4.23 [Due Dates other than the First Day of the Month..............28
Section 4.24 Fair Credit Reporting Act.....................................29
Section 4.25 Use of Subservicers and Subcontractors........................29
ARTICLE V
PAYMENTS TO OWNER
Section 5.01 Remittances...................................................30
Section 5.02 Statements to Owner...........................................30
Section 5.03 Reserved
Section 5.04 Repurchase....................................................31
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 Transfers of Mortgaged Property...............................32
Section 6.02 Satisfaction of Mortgages and Release of Mortgage Files.......32
Section 6.03 Servicing Compensation........................................33
Section 6.04 Annual Statements as to Compliance............................33
Section 6.05 Annual Independent Public Accountants' Servicing Report.......33
Section 6.06 Report on Assessment of Compliance and Attestation............34
Section 6.07 Remedies......................................................35
Section 6.08 Right to Examine Servicer Records.............................36
Section 6.09 Compliance with REMIC Provisions..............................36
ARTICLE VII
SERVICER TO COOPERATE
Section 7.01 Provision of Information......................................36
Section 7.02 Financial Statements; Servicing Facility......................37
ARTICLE VIII
THE SERVICER
Section 8.01 Indemnification; Third Party Claims...........................37
Section 8.02 Merger or Consolidation of the Servicer.......................38
Section 8.03 Limitation on Liability of Servicer and Others................38
Section 8.04 Limitation on Resignation and Assignment by Servicer..........38
-ii-
ARTICLE IX
SECURITIZATION TRANSACTIONS
Section 9.01 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Securitization Transaction..................39
ARTICLE X
DEFAULT
Section 10.01 Events of Default.............................................47
Section 10.02 Waiver of Defaults............................................49
ARTICLE XI
TERMINATION
Section 11.01 Termination...................................................49
Section 11.02 Termination Without Cause.....................................50
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Successor to Servicer.........................................50
Section 12.02 Amendment.....................................................51
Section 12.03 Governing Law.................................................51
Section 12.04 Duration of Agreement.........................................51
Section 12.05 Notices.......................................................51
Section 12.06 Severability of Provisions....................................52
Section 12.07 Relationship of Parties.......................................52
Section 12.08 Execution; Successors and Assigns.............................52
Section 12.09 Recordation of Assignments of Mortgage........................53
Section 12.10 Assignment by Owner...........................................53
Section 12.11 Solicitation of Mortgagor.....................................53
Section 12.12 Further Agreements............................................53
Section 12.13 Conflicts.....................................................53
Section 12.14 Third Party Beneficiaries.....................................53
EXHIBITS
Exhibit A Form of Acknowledgment Agreement
Exhibit B Form of Assignment and Assumption
Exhibit C Reserved
Exhibit D Reserved
-iii-
Exhibit E Form of Custodial Account Certification
Exhibit F Form of Escrow Account Certification
Exhibit G Form of Power or Attorney
Exhibit H Servicing Criteria
Exhibit I Sarbanes Certification
-iv-
This is a Servicing Agreement for fixed-rate and adjustable-rate
residential first or second lien mortgage loans, dated and effective as of June
30, 2006, and is executed between ▇▇▇▇▇▇▇ Sachs Mortgage Company, as owner (the
"Owner"), and ▇▇▇▇▇ Fargo Bank, N.A., as servicer (the "Servicer").
W I T N E S S E T H
WHEREAS, the Owner has agreed to sell, from time to time, and the
Servicer shall purchase, from time to time, the servicing rights pursuant to
that certain Flow Servicing Rights Purchase and Sale Agreement dated as of June
30, 2006 between the Owner and the Servicer;
WHEREAS, the parties desire to set forth the terms and conditions as
to the servicing of the Mortgage Loans in which Servicer owns the servicing
rights, pursuant to this Servicing Agreement;
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Owner and the Servicer
agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
content otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those customary mortgage servicing practices of prudent mortgage lending
institutions which service mortgage loans of the same type as the Mortgage Loans
in the jurisdiction where the related Mortgaged Property is located.
Acknowledgment Agreement: An acknowledgment agreement substantially
in the form of Exhibit A, agreed to by the parties hereto that makes specific
reference to this Agreement to be executed on or prior to each Transfer Date
with respect to servicing of Mortgage Loans by the Servicer.
Adjustment Date: As to each adjustable-rate Mortgage Loan, the date
on which the Mortgage Interest Rate is adjusted in accordance with the terms of
the related Mortgage Note and Mortgage.
Agency/Agencies: ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac or either of them as
applicable.
Agreement: This Servicing Agreement and all exhibits and amendments
hereof and supplements hereto.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the ownership of the Mortgage by the Owner, or if the related Mortgage has been
recorded in the name of MERS or its designee, such actions as are necessary to
cause the Owner to be shown as the owner of the related Mortgage on the records
of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS, including assignment of the MIN
Number which will appear either on the Mortgage or the Assignment of Mortgage to
MERS.
Assignment of Mortgage Note and Pledge Agreement: With respect to a
Cooperative Loan, an assignment of the Mortgage Note and Pledge Agreement.
Assignment of Proprietary Lease: With respect to a Cooperative Loan,
an assignment of the Proprietary Lease sufficient under the laws of the
jurisdiction wherein the related Cooperative Apartment is located to effect the
assignment of such Proprietary Lease.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a
day on which banking and savings and loan institutions in the states of
California, Iowa, Maryland, Minnesota, New York or South Carolina are authorized
or obligated by law or executive order to be closed.
Buydown Agreement: An agreement between the originator of a Mortgage
Loan and a Mortgagor, or an agreement among the originator, a Mortgagor and a
seller of a Mortgaged Property or a third party with respect to a Mortgage Loan
which provides for the application of Buydown Funds.
Buydown Funds: In respect of any Buydown Mortgage Loan, any amount
contributed by the seller of a Mortgaged Property subject to a Buydown Mortgage
Loan, the buyer of such property, or any other source, plus interest earned
thereon, in order to enable the Mortgagor to reduce the payments required to be
made from the Mortgagor's funds in the early years of a Mortgage Loan.
Buydown Mortgage Loan: Any Mortgage Loan in respect of which,
pursuant to a Buydown Agreement, (i) the Mortgagor pays less than the full
monthly payments specified in the Mortgage Note for a specified period, and (ii)
the difference between the payments required under such Buydown Agreement and
the Mortgage Note is provided from Buydown Funds.
Buydown Period: The period of time when a Buydown Agreement is in
effect with respect to a related Buydown Mortgage Loan.
Code: The Internal Revenue Code of 1986, as it may be amended from
time to time or any successor statute thereto, and applicable U.S. Department of
the Treasury regulations issued pursuant thereto.
Commission: The United States Securities and Exchange Commission.
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Commitment Letter: The commitment by Servicer to purchase the
Servicing Rights from Owner, pursuant to the Purchase Agreement.
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.
Cooperative: The entity that holds title (fee or an acceptable
leasehold estate) to all of the real property that the Project comprises,
including the land, separate dwelling units and all common areas.
Cooperative Apartment: The specific dwelling unit relating to a
Cooperative Loan.
Cooperative Loan: A Mortgage Loan that is secured by Cooperative
Shares and a Proprietary Lease granting exclusive rights to occupy the related
Cooperative Apartment.
Cooperative Shares: The shares of stock issued by a Cooperative,
owned by the Mortgagor, and allocated to a Cooperative Apartment.
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 4.04.
Custodial Agreement: The agreement governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents.
Custodian: The custodian under the Custodial Agreement, or its
successor in interest or assigns, or any successor to the Custodian under the
Custodial Agreement as provided therein.
Cut-off Date: With respect to the transfer of servicing by the Owner
to the Servicer for any group of Mortgage Loans, the date so specified in the
related Acknowledgment Agreement.
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Determination Date: The Business Day immediately preceding the
related Remittance Date.
Due Date: The first day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to each Remittance Date, the period
commencing on the second day of the month preceding the month of the Remittance
Date and ending on the first day of the month of the Remittance Date.
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Errors and Omissions Insurance Policy: An errors and omissions
insurance policy to be maintained by the Servicer pursuant to Section 4.12.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 4.06.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other related
document.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 10.01.
Exchange Act: The Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇ ▇▇▇: The entity formerly known as Federal National Mortgage
Association (FNMA), or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Fidelity Bond: A fidelity bond to be maintained by the Servicer
pursuant to Section 4.12.
▇▇▇▇▇▇▇ Mac: The entity also known as the Federal Home Loan Mortgage
Corporation (FHLMC), or any successor thereto.
HUD: The Department of Housing and Urban Development.
Indemnified Party: As defined in Section 9.01(k).
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property.
Interagency Guidelines: The Interagency Guidelines Establishing
Standards for Safeguarding Customer Information, 66 Fed. Reg. 8616.
Liquidation Proceeds: Cash (other than Insurance Proceeds or
Condemnation Proceeds) received in connection with the liquidation of a
defaulted Mortgage Loan, whether through the sale or assignment of such Mortgage
Loan, trustee's sale, foreclosure sale or otherwise, or the sale of the related
Mortgaged Property if the Mortgaged Property is acquired in satisfaction of the
Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio of the original loan amount of the Mortgage Loan at its origination
(unless otherwise indicated) to the Appraised Value of the Mortgaged Property.
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LPMI Policy: A policy of primary mortgage guaranty insurance issued
by a Qualified Insurer pursuant to which the related premium is to be paid by
the servicer of the related Mortgage Loan from payments of interest made by the
Mortgagor.
Master Servicer: With respect to any Securitization Transaction, the
"master servicer," if any, identified in the related transaction documents.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor in interest thereto.
MERS Mortgage Loan: Any Mortgage Loan as to which the related
Mortgage or Assignment of Mortgage has been registered with MERS on the MERS
System.
MERS System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number used to identify mortgage
loans registered under MERS.
Monthly Advance: The portion of each Monthly Payment that is
delinquent with respect to each Mortgage Loan at the close of business on the
Determination Date required to be advanced by the Servicer pursuant to Section
5.03 on the Business Day immediately preceding the Remittance Date of the
related month.
Monthly Payment: The scheduled monthly payment of principal and
interest or, with respect to an interest only Mortgage Loan, payments of (i)
interest, or (ii) principal and interest, if applicable, on a Mortgage Loan.
Mortgage: The mortgage, deed of trust or other instrument and riders
thereto securing a Mortgage Note, which creates a first lien on an
unsubordinated estate in fee simple in real property securing the Mortgage Note
or the Pledge Agreement securing the Mortgage Note for a Cooperative Loan.
Mortgage File: The Mortgage Loan Documents, and any additional
documents required to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note in accordance with the provisions of the Mortgage Note.
Mortgage Loan: An individual mortgage loan or a Cooperative Loan
which is the subject of this Agreement, each Mortgage Loan or a Cooperative Loan
originally sold and subject to this Agreement being identified on the Mortgage
Loan Schedule, which Mortgage Loan or a Cooperative Loan includes without
limitation the Servicing File, the Monthly Payments, Principal Prepayments,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition
Proceeds and all other rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan or a Cooperative Loan.
-5-
Mortgage Loan Documents: With respect to a Mortgage Loan, the
original related Mortgage Note with applicable addenda and riders, the original
related Mortgage and the originals of any required addenda and riders, the
original related Assignment of Mortgage and any original intervening related
Assignments of Mortgage, the original related title insurance policy and
evidence of the related PMI Policy or LPMI Policy, if any.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest remitted to the Owner, which shall be equal to the
related Mortgage Interest Rate minus the Servicing Fee Rate and minus any lender
paid PMI Policy premiums, if applicable.
Mortgage Loan Schedule: A schedule of Mortgage Loans subject to this
Agreement, annexed to each Acknowledgment Agreement.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property securing repayment of the
debt evidenced by a Mortgage Note, or with respect to a Cooperative Loan, the
Cooperative Apartment.
Mortgagor: The obligor on a Mortgage Note.
Officer's Certificate: A certificate signed by the Chairman of the
Board or the Vice Chairman of the Board or the President or a Vice President or
an Assistant Vice President and certified by the Treasurer or the Secretary or
one of the Assistant Treasurers or Assistant Secretaries of the Servicer, and
delivered to the Owner as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Servicer, reasonably acceptable to the Owner.
Owner: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company or its successor in interest
or any successor to the Owner under this Agreement as herein provided.
Person: Any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
Pledge Agreement: With respect to a Cooperative Loan, the specific
agreement creating a first lien on and pledge of the Cooperative Shares and the
appurtenant Proprietary Lease.
Pledge Instruments: With respect to a Cooperative Loan, the Stock
Power, the Assignment of the Proprietary Lease and the Assignment of the
Mortgage Note and Pledge Agreement.
PMI Policy: A policy of primary mortgage guaranty insurance
evidenced by an electronic form and certificate number issued by a Qualified
Insurer, as required by this Agreement with respect to certain Mortgage Loans.
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Prepayment Charge: Payments calculated pursuant to the Mortgage Note
and due pursuant to the terms of the Mortgage Loan Documents as the result of a
Principal Prepayment of the Mortgage Loan, not otherwise due thereon in respect
of principal or interest.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan which is received in advance of its scheduled Due Date,
including any prepayment penalty or premium thereon 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 Period: The calendar month preceding the month
in which the related Remittance Date occurs.
Project: With respect to a Cooperative Loan, all real property owned
by the related Cooperative including the land, separate dwelling units and all
common areas.
Proprietary Lease: With respect to a Cooperative Loan, a lease on a
Cooperative Apartment evidencing the possessory interest of the Mortgagor in
such Cooperative Apartment.
Purchase Agreement: The Flow Servicing Rights Purchase and Sale
Agreement dated as of June 30, 2006 between the Owner and the Servicer.
Qualified Depository: A deposit account or accounts maintained with
a federal or state chartered depository institution the deposits in which are
insured by the FDIC to the applicable limits and the short-term unsecured debt
obligations of which (or, in the case of a depository institution that is a
subsidiary of a holding company, the short-term unsecured debt obligations of
such holding company) are rated A-1 by Standard & Poor's Ratings Services or
Prime-1 by ▇▇▇▇▇'▇ Investors Service, Inc. (or a comparable rating if another
rating agency is specified by the Owner by written notice to the Servicer) at
the time any deposits are held on deposit therein; provided, however, that in
the event any of the Mortgage Loans are subject to a Securitization Transaction,
the Servicer agrees that the holding company or other entity which maintains any
accounts subject to this definition, shall satisfy the rating requirements
established by any Rating Agency which rates securities issued as part of the
Securitization Transaction.
Qualified Insurer: A mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by ▇▇▇▇▇▇ ▇▇▇.
Rating Agency: ▇▇▇▇▇'▇ Investors Service, Inc., Standard & Poor's
Ratings Group, division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Fitch, Inc (doing business
as "Fitch Ratings"), or any other nationally recognized statistical credit
rating agency rating any security issued in connection with any Securitization
Transaction.
Rating Agency Delivery Event: As defined in Section 9.1(o).
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Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Agreement: The agreement or agreements entered into
by the Servicer and the Owner and/or certain third parties on the Reconstitution
Date or Dates with respect to any or all of the Mortgage Loans serviced
hereunder, in connection with a Whole Loan Transfer or Securitization
Transaction.
Reconstitution Date: The date on which any or all of the Mortgage
Loans serviced under this Agreement may be removed from this Agreement and
reconstituted as part of a Securitization Transaction or Whole Loan Transfer
pursuant to Section 9.01 hereof. The Reconstitution Date shall be such date
which the Owner shall designate. On such date, the Mortgage Loans transferred
may cease to be covered by this Agreement and the Servicer's servicing
responsibilities may cease under this Agreement with respect to the related
transferred Mortgage Loans.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (January 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to a REMIC, which appear at Section 860A through 860G of Subchapter M of Chapter
1, Subtitle A of the Code, and related provisions, regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance Date: The 24th calendar day (or if such day is not a
Business Day, the first Business Day immediately preceding such date) of any
month, unless otherwise agreed upon in writing contained in the Securitization
Materials.
REO Disposition: The final sale by the Servicer of any REO Property.
REO Disposition Fee: The REO Disposition fee shall be the greater of
one percent (1%) of the gross sales price of the REO Property or $1,500.00 per
REO Property, unless Servicer is entitled to a rebate on the broker commission
paid, in which case the REO Disposition Fee shall be no greater than $400 per
REO Property.
REO Disposition Proceeds: All amounts received with respect to an
REO Disposition pursuant to Section 4.16.
REO Property: A Mortgaged Property acquired by the Servicer on
behalf of the Owner through foreclosure or by deed in lieu of foreclosure, as
described in Section 4.16.
-8-
Sale Date: Each date on which the Servicer acquires the right, title
and interest in and to the Servicing Rights attendant to Mortgage Loans.
Sarbanes Certification: A ▇▇▇▇▇▇▇▇-▇▇▇▇▇ certification as defined in
Section 6.06(iv).
Securities Act of 1933 or the 1933 Act: The Securities Act of 1933,
as amended.
Securitization Materials: As defined in Section 9.01(l)(i).
Securitization Transaction: Any transaction involving either (a) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or (b)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Seller: Each person who sold Mortgage Loans to the Owner.
Servicer: ▇▇▇▇▇ Fargo Bank, N.A., or its successor in interest or
assigns, or any successor to the Servicer under this Agreement appointed as
herein provided.
Servicer Information: As defined in Section 9.01(k)(i)(A).
Servicer Employees: As defined in Section 4.12.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorney's fees and
disbursements) incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any enforcement or
judicial proceedings, including foreclosures, (c) the management and liquidation
of any REO Property and (d) compliance with the obligations under Section 4.08.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
Servicing Fee: With respect to each Mortgage Loan, the amount of the
annual fee the Owner shall pay to the Servicer, which shall, for a period of one
full month, be equal to one-twelfth of the product of (a) the Servicing Fee Rate
and (b) the Stated Principal Balance of such Mortgage Loan. Such fee shall be
payable monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is received.
The obligation of the Owner to pay the Servicing Fee is limited to, and the
Servicing Fee is payable solely from, the interest portion (including recoveries
with respect to interest from Liquidation Proceeds, to the extent permitted by
Section 4.05) of such Monthly Payment collected by the Servicer, or as otherwise
provided under Section 4.05.
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Servicing Fee Rate: the percentage per annum with respect to each
Mortgage Loan set forth in the applicable Mortgage Loan Schedule.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer consisting of originals of all documents in the
Mortgage File which are not delivered to the Owner or the Custodian and copies
of the Mortgage Loan Documents listed in the Custodial Agreement, if applicable,
the originals of which are delivered to the Custodian or the Owner pursuant to
Section 2.03.
Servicing Rights: the servicing rights with respect to the Mortgage
Loans, as further defined within the applicable Commitment Letter.
Stated Principal Balance: As to each Mortgage Loan and as of any
date of determination, (i) the principal balance of the Mortgage Loan at the
Cut-off Date after giving effect to payments of principal due on or before such
date, whether or not received, minus (ii) all amounts previously distributed to
the Owner with respect to the related Mortgage Loan representing payments or
recoveries of principal.
Stock Certificate: With respect to a Cooperative Loan, a certificate
evidencing ownership of the Cooperative Shares issued by the Cooperative.
Stock Power: With respect to a Cooperative Loan, an assignment of
the Stock Certificate or an assignment of the Cooperative Shares issued by the
Cooperative.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the
Servicer or a Subservicer.
Subservicer: Any person that services Mortgage Loans on behalf of
the Servicer or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Servicer under
this Agreement or any Reconstitution Agreement that are identified in Item
1122(d) of Regulation AB.
Termination Fee: With respect to each Mortgage Loan, a fee equal to
the greater of: (i) the product of the Purchase Price Percentage (as defined in
the Commitment Letter or Purchase Agreement) multiplied by the Stated Principal
Balance of such Mortgage Loan, and (ii) the fair market value of the related
Servicing Rights, in each case as of the date of termination.
Transfer Date: Each date on which Servicing Rights are transferred
to the Servicer hereunder.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans by the Owner to a third party, which sale or transfer is not a
Securitization Transaction.
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ARTICLE II
POSSESSION OF MORTGAGE FILES; BOOKS AND RECORDS;
CUSTODIAL AGREEMENT; DELIVERY OF DOCUMENTS
Section 2.01 Possession of Mortgage Files; Maintenance of Servicing
Files. From and after each Transfer Date or Sale Date, as applicable, the
contents of each Mortgage File not delivered to the Owner or held by the
Custodian shall be held in trust by the Servicer for the benefit of the Owner as
the owner thereof. The Servicer shall maintain a Servicing File consisting of a
copy of the contents of each Mortgage File and the originals of the documents in
each Mortgage File not delivered to the Owner or the Custodian, as applicable.
The possession of each Servicing File by the Servicer is at the will of the
Owner for the sole purpose of servicing the related Mortgage Loan, and such
retention and possession by the Servicer is in a custodial capacity only. The
ownership of each Mortgage Note, the related Mortgage and the related Mortgage
File are vested in the Owner, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or which come into the
possession of the Servicer shall vest immediately in the Owner and shall be
retained and maintained by the Servicer, in trust, at the will of the Owner and
only in such custodial capacity. The Servicer shall release its custody of the
contents of any Servicing File only in accordance with written instructions from
the Owner, unless such release is required as incidental to the Servicer's
servicing of the Mortgage Loans or is in connection with a repurchase of any
Mortgage Loan. All such costs associated with the release, transfer and
re-delivery of any Servicing Files to the Servicer shall be the responsibility
of the Owner, except in the case of any transfer of Servicing Files required
pursuant to a termination of Servicer pursuant to Section 10.01, in which case
said costs shall be borne by the Servicer.
In addition, in connection with the assignment of any MERS Mortgage
Loan, the Servicer agrees that it will cause the MERS System to indicate that
such Mortgage Loan has been assigned by the Servicer to the Owner in accordance
with this Agreement by including (or deleting, in the case of a Mortgage Loan
repurchased in accordance with this Agreement) in such computer files the
information required by the MERS System to identify the Owner as the beneficial
owner of such Mortgage Loan.
Section 2.02 Books and Records; Transfers of Mortgage Loans. All
rights arising out of the Mortgage Loans, including, but not limited to, all
funds received on or in connection with the Mortgage Loans, shall be received
and held by the Servicer in trust for the benefit of the Owner as owner of the
Mortgage Loans, and the Servicer shall retain record title to the related
Mortgages for the sole purpose of facilitating the servicing and the supervision
of the servicing of the Mortgage Loans.
To the extent that original documents are not required for purposes
of realization of Liquidation Proceeds or Insurance Proceeds, documents
maintained by the Servicer may be in the form of microfilm or microfiche or such
other reliable means of recreating original documents, including but not limited
to, optical imagery techniques so long as the Servicer complies with the
requirements of the ▇▇▇▇▇▇ ▇▇▇ Selling and Servicing Guide, as amended from time
to time.
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The Servicer shall maintain with respect to each Mortgage Loan and
shall make available for inspection by any Owner or its designee the related
Servicing File during the time the Owner retains ownership of a Mortgage Loan
and thereafter in accordance with applicable laws and regulations.
The Servicer shall keep at its servicing office books and records in
which, subject to such reasonable regulations as it may prescribe, the Servicer
shall note transfers of Mortgage Loans. No transfer of a Mortgage Loan may be
made unless such transfer is in compliance with the terms hereof. For the
purposes of this Agreement, the Servicer shall be under no obligation to deal
with any Person with respect to this Agreement or the Mortgage Loans unless the
books and records show such Person as the owner of the Mortgage Loan. The Owner
may, subject to the terms of this Agreement, sell and transfer one or more of
the Mortgage Loans. Upon receipt of notice of the transfer, the Servicer shall
▇▇▇▇ its books and records to reflect the ownership of the Mortgage Loans of
such assignee, and shall release the previous Owner from its obligations
hereunder with respect to the Mortgage Loans sold or transferred. Such
notification of a transfer shall include a final loan schedule which shall be
received by the Servicer no fewer than five (5) Business Days before the last
Business Day of the month. If such notification is not received as specified
above, the Servicer's duties to remit and report as required by Section 5 shall
begin with the following Monthly Accounting Cut-off Date.
Section 2.03 Custodial Agreement; Delivery of Documents. The
Servicer shall forward to the Owner or the Custodian, as applicable, original
documents evidencing an assumption, modification, consolidation or extension of
any Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within
one week of their execution, provided, however, that the Servicer shall provide
the Owner or the Custodian, as applicable, with a certified true copy of any
such document submitted for recordation within ten (10) days of its execution,
and shall provide the original of any document submitted for recordation or a
copy of such document certified by the appropriate public recording office to be
a true and complete copy of the original within 60 days of its submission for
recordation.
In the event the public recording office is delayed in returning any
original document, the Servicer shall deliver to the Owner or the Custodian
within 240 days of its submission for recordation, a copy of such document and
an Officer's Certificate, which shall (i) identify the recorded document; (ii)
state that the recorded document has not been delivered to the Custodian due
solely to a delay by the public recording office, (iii) state the amount of time
generally required by the applicable recording office to record and return a
document submitted for recordation, and (iv) specify the date the applicable
recorded document will be delivered to the Custodian. The Servicer will be
required to deliver the document to the Owner or the Custodian by the date
specified in (iv) above. An extension of the date specified in (iv) above may be
requested from the Owner, which consent shall not be unreasonably withheld.
In the event that new, replacement, substitute or additional Stock
Certificates are issued with respect to existing Cooperative Shares, the
Servicer immediately shall deliver to the Owner or the Custodian the new Stock
Certificates, together with the related Stock Powers in blank. Such new Stock
Certificates shall be subject to the related Pledge Instruments and shall be
subject to all of the terms, covenants and conditions of this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES REMEDIES AND BREACH
Section 3.01 Servicer Representations and Warranties. The Servicer
hereby represents and warrants to the Owner that, as of each Transfer Date and
Sale Date:
(a) Due Organization and Authority. The Servicer is a national
banking association duly organized, validly existing and in good standing under
the laws of the United States and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good standing
in each state where a Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct business of the type
conducted by the Servicer, and in any event the Servicer is in compliance with
the laws of any such state to the extent necessary to ensure the enforceability
of the related Mortgage Loan and the servicing of such Mortgage Loan in
accordance with the terms of this Agreement; the Servicer has the full power and
authority to execute and deliver this Agreement and to perform in accordance
herewith; the execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this Agreement) by the
Servicer and the consummation of the transactions contemplated hereby have been
duly and validly authorized; this Agreement evidences the valid, binding and
enforceable obligation of the Servicer; and all requisite action has been taken
by the Servicer to make this Agreement valid and binding upon the Servicer in
accordance with its terms;
(b) Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Servicer, who is in the business of selling and servicing loans,
and are not subject to the bulk transfer or any similar statutory provisions in
effect in any applicable jurisdiction;
(c) No Conflicts. Neither the execution and delivery of this
Agreement, or the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions of this Agreement will conflict with or
result in a breach of any of the terms, articles of incorporation or by-laws or
any legal restriction or any agreement or instrument to which the Servicer is
now a party or by which it is bound, or constitute a default or result in the
violation of any law, rule, regulation, order, judgment or decree to which the
Servicer or its property is subject, or impair the ability of the Owner to
realize on the Mortgage Loans, or impair the value of the Mortgage Loans;
(d) Ability to Service. The Servicer is an approved seller/servicer
of conventional residential mortgage loans for ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, with
the facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans. The Servicer
is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act
and is in good standing to sell mortgage loans to and service mortgage loans for
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, and no event has occurred, including but not limited
to a change in insurance coverage, which would make the Servicer unable to
comply with ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac eligibility requirements or which would
require notification to either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
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(e) Reasonable Servicing Fee. The Servicer acknowledges and agrees
that the Servicing Fee represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by the Servicer, for
accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement;
(f) Ability to Perform. The Servicer does not believe, nor does it
have any reason or cause to believe, that it cannot perform each and every
covenant contained in this Agreement and the Servicer is solvent;
(g) No Litigation Pending. There is no action, suit, proceeding or
investigation pending or threatened against the Servicer which, either in any
one instance or in the aggregate, may result in any material adverse change in
the business, operations, financial condition, properties or assets of the
Servicer, or in any material impairment of the right or ability of the Servicer
to carry on its business substantially as now conducted, or in any material
liability on the part of the Servicer, or which would draw into question the
validity of this Agreement or of any action taken or to be contemplated herein,
or which would be likely to impair materially the ability of the Servicer to
perform under the terms of this Agreement;
(h) No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by the Servicer of or compliance by the Servicer with
this Agreement, or if required, such approval has been obtained prior to the
respective Transfer Date or Sale Date. Servicer has complied with, and is not in
default under, any law, ordinance, requirement, regulation, rule, or order
applicable to its business or properties, the violation of which would
materially and adversely affect the operations or financial condition of
Servicer or its ability to perform its obligations hereunder;
(i) No Untrue Information. Neither this Agreement nor any statement,
report or other document furnished or to be furnished pursuant to this Agreement
or in connection with the transactions contemplated hereby contains any untrue
statement of fact or omits to state a fact necessary to make the statements
contained therein not misleading;
(j) No Material Change. There has been no material adverse change in
the business, operations, financial condition or assets of the Servicer since
the date of the Servicer's most recent financial statements;
(k) No Brokers' Fees. The Servicer has not dealt with any broker,
investment banker, agent or other Person that may be entitled to any commission
or compensation in the connection with the transactions contemplated hereunder;
(l) MERS. The Servicer is a member of MERS in good standing; and
(m) Effective Agreement. The execution, delivery and performance of
this Agreement by Servicer and consummation of the transactions contemplated
hereunder have been or will be duly and validly authorized by all necessary
organizational or other action; this Agreement is valid and a legally binding
agreement of Servicer enforceable against Servicer in accordance with its terms,
subject to the effect of insolvency, liquidation, conservatorship and
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similar laws administered by the FDIC affecting the contract obligations of
insured banks and the discretion of a court to grant specific performance.
Section 3.02 Remedies. The Servicer shall indemnify and hold the
Owner, its respective present and former directors, officers, employees and
agents harmless from any and all claims, losses, damages, penalties, fines,
forfeitures (including, without limitation, any reasonable and necessary legal
fees and expenses, judgments or expenses relating to such liability, claim, loss
or damage) and related costs, judgments, and any other reasonable costs, fees
and expenses resulting from any claim, demand, defense or assertion based on or
grounded upon, or resulting from a breach of the Servicer's representations and
warranties contained in this Agreement. It is understood and agreed that the
obligations of the Servicer to indemnify the Owner as provided in this Section
3.02 constitute the sole remedies of the Owner respecting a breach of the
foregoing representations and warranties.
Any cause of action against the Servicer relating to or arising out
of the breach of any representations and warranties made in Section 3.01 shall
accrue as to any Mortgage Loan upon (i) discovery of such breach by the Owner or
notice thereof by the Servicer to the Owner, (ii) failure by the Servicer to
cure such breach, and (iii) demand upon the Servicer by the Owner for compliance
with this Agreement.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Servicer to Act as Servicer. The Servicer, as an
independent contractor, shall service and administer the Mortgage Loans and
shall have full power and authority, acting alone or through the utilization of
a Subservicer or a Subcontractor, to do any and all things in connection with
such servicing and administration which the Servicer may deem necessary or
desirable, consistent with the terms of this Agreement and with Accepted
Servicing Practices and, in the case of any Mortgage Loan transferred to a
REMIC, with the REMIC Provisions. The Servicer shall be responsible for any and
all acts of a Subservicer and a Subcontractor, and the Servicer's utilization of
a Subservicer or a Subcontractor shall in no way relieve the liability of the
Servicer under this Agreement. The Servicer shall service the Mortgage Loans,
sold or transferred pursuant to a Securitization Transaction, on a
"scheduled/scheduled" basis pursuant to this Agreement.
Consistent with the terms of this Agreement and subject to the REMIC
Provisions if a Mortgage Loan has been transferred to a REMIC, the Servicer may
waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor if in the Servicer's reasonable and prudent
determination such waiver, modification, postponement or indulgence is not
materially adverse to the Owner, provided, however, the Servicer shall not make
any future advances, other than Servicing Advances with respect to a Mortgage
Loan. The Servicer shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate, defer or forgive the
payment of principal (except for actual payments of principal), reduce or
increase the outstanding principal balance, or change the final maturity date on
such Mortgage Loan, unless the Mortgagor is in default with respect to the
Mortgage Loan or such
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default is, in the judgment of the Servicer, imminent. In the event that no
default exists or is imminent, the Servicer shall request written consent from
the Owner to permit such a modification and the Owner shall provide written
consent or notify the Servicer of its objection to such modification within
three (3) Business Days of its receipt of the Servicer's request. In the event
of any such modification which permits the deferral of interest or principal
payments on any Mortgage Loan, the Servicer shall, on the Business Day
immediately preceding the Remittance Date in any month in which any such
principal or interest payment has been deferred, deposit in the Custodial
Account from its own funds, in accordance with Section 5.03, the difference
between (a) such month's principal and one month's interest at the Mortgage Loan
Remittance Rate on the unpaid principal balance of such Mortgage Loan and (b)
the amount paid by the Mortgagor. The Servicer shall be entitled to
reimbursement for such advances to the same extent as for all other advances
made pursuant to Section 5.03. Without limiting the generality of the foregoing,
the Servicer shall continue, and is hereby authorized and empowered, to execute
and deliver on behalf of itself and the Owner, all instruments of satisfaction
or cancellation, or of partial or full release, discharge and all other
comparable instruments, with respect to the Mortgage Loans and with respect to
the Mortgaged Properties. If reasonably required by the Servicer, the Owner
shall furnish the Servicer, within five (5) Business Days of Servicer's request,
any powers of attorney and other documents necessary or appropriate to enable
the Servicer to carry out its servicing and administrative duties under this
Agreement.
The Servicer is authorized and empowered by the Owner, in its own
name, when the Servicer believes it appropriate in its reasonable judgment to
register any Mortgage Loan on the MERS System, or cause the removal from MERS
registration of any Mortgage Loan on the MERS System, to execute and deliver, on
behalf of the Owner, any and all instruments of assignment and other comparable
instruments with respect to such assignment or re-recording of a Mortgage in the
name of MERS, solely as nominee for the Owner and its successors and assigns.
In servicing and administering the Mortgage Loans, the Servicer
shall employ procedures (including collection procedures) and exercise the same
care that it customarily employs and exercises in servicing and administering
similar mortgage loans for similar investors, giving due consideration to
Accepted Servicing Practices where such practices do not conflict with the
requirements of this Agreement, and the Owner's reliance on the Servicer.
The Servicer shall cause to be maintained for each Cooperative Loan
a copy of the financing statements and shall file and such financing statements
and continuation statements as necessary, in accordance with the Uniform
Commercial Code applicable in the jurisdiction in which the related Cooperative
Apartment is located, to perfect and protect the security interest and lien of
the Owner.
The Servicer may waive any Prepayment Charge provided: (i) the
enforceability thereof shall have been limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors' rights
generally, (ii) the enforcement thereof is illegal, or any local, state or
federal agency has threatened legal action if the Prepayment Charge is enforced,
(iii) the mortgage debt has been accelerated in connection with a foreclosure or
other involuntary payment or (iv) such waiver is standard and customary in
servicing similar Mortgage Loans and
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relates to a default or a reasonably foreseeable default and would, in the
reasonable judgment of the Servicer, maximize recovery of total proceeds taking
into account the value of such Prepayment Charge and the related Mortgage Loan.
If a Prepayment Charge is waived, but does not meet the standards described
above, then the Servicer is required to pay the amount of such waived Prepayment
Charge by remitting such amount to the Owner by the Remittance Date.
Section 4.02 Liquidation of Mortgage Loans. In the event that any
payment due under any Mortgage Loan and not postponed pursuant to Section 4.01
is not paid when the same becomes due and payable, or in the event the Mortgagor
fails to perform any other covenant or obligation under the Mortgage Loan and
such failure continues beyond any applicable grace period, the Servicer shall
take such action as (1) the Servicer would take under similar circumstances with
respect to a similar mortgage loan held for its own account for investment, (2)
shall be consistent with Accepted Servicing Practices, (3) the Servicer shall
determine prudently to be in the best interest of Owner, and (4) is consistent
with any related PMI Policy or LPMI Policy or any other primary mortgage
guaranty insurance policies obtained and paid for by the Owner. In the event
that any payment due under any Mortgage Loan is not postponed pursuant to
Section 4.01 and remains delinquent for a period of 90 days or any other default
continues for a period of 90 days beyond the expiration of any grace or cure
period, the Servicer shall commence foreclosure proceedings. In such connection,
the Servicer shall from its own funds make all necessary and proper Servicing
Advances, provided, however, that the Servicer shall not be required to expend
its own funds in connection with any foreclosure or towards the restoration or
preservation of any Mortgaged Property, unless it shall determine (a) that such
preservation, restoration and/or foreclosure will increase the proceeds of
liquidation of the Mortgage Loan to Owner after reimbursement to itself for such
expenses and (b) that such expenses will be recoverable by it either through
Liquidation Proceeds (respecting which it shall have priority for purposes of
withdrawals from the Custodial Account pursuant to Section 4.05) or through
Insurance Proceeds (respecting which it shall have similar priority).
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event the Servicer has reasonable cause to believe that a Mortgaged Property
is contaminated by hazardous or toxic substances or wastes, or if the Owner
otherwise requests an environmental inspection or review of such Mortgaged
Property, such an inspection or review is to be conducted by a qualified
inspector. The cost for such inspection or review shall be borne by the Owner.
Upon completion of the inspection or review, the Servicer shall promptly provide
the Owner with a written report of the environmental inspection.
After reviewing the environmental inspection report, the Owner shall
determine how the Servicer shall 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 Owner directs the Servicer to proceed with foreclosure or acceptance
of a deed in lieu of foreclosure, the Servicer shall be reimbursed for all
reasonable costs associated with such foreclosure or acceptance of a deed in
lieu of foreclosure and any related environmental clean up costs, as applicable,
from the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Servicer, the Servicer shall be entitled to
be reimbursed from amounts in the Custodial Account pursuant to Section 4.05
hereof. In the event the Owner directs the Servicer not to proceed with
foreclosure
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or acceptance of a deed in lieu of foreclosure, the Servicer shall be reimbursed
for all Servicing Advances made with respect to the related Mortgaged Property
from the Custodial Account pursuant to Section 4.05 hereof.
Section 4.03 Collection of Mortgage Loan Payments. Continuously from
the date hereof until the principal and interest on all Mortgage Loans are paid
in full, the Servicer shall proceed diligently to collect all payments due under
each of the Mortgage Loans when the same shall become due and payable and shall
take special care in ascertaining and estimating Escrow Payments and all other
charges that will become due and payable with respect to the Mortgage Loan and
the Mortgaged Property, to the end that the installments payable by the
Mortgagors will be sufficient to pay such charges as and when they become due
and payable.
Section 4.04 Establishment of and Deposits to Custodial Account. The
Servicer shall segregate and hold all funds collected and received in connection
with a Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts, in the
form of time deposit or demand accounts, titled "▇▇▇▇▇ Fargo Bank, N.A., in
trust for the Owner and/or subsequent Owners of Mortgage Loans, and various
Mortgagors - P & I." The Custodial Account shall be established with a Qualified
Depository. Upon request of the Owner and within ten (10) days thereof, the
Servicer shall provide the Owner with written confirmation of the existence of
such Custodial Account in the form attached hereto as Exhibit E. The Custodial
Account shall at all times be insured to the fullest extent allowed by
applicable law. Funds deposited in the Custodial Account may be drawn on by the
Servicer in accordance with Section 4.05.
The Servicer shall deposit in a mortgage clearing account on a daily
basis, and in the Custodial Account within two (2) Business Days of Servicer's
receipt, and retain therein, the following collections received by the Servicer
and any other amounts required to be deposited by the Servicer pursuant to this
Agreement after the Cut-off Date, or received by the Servicer prior to the
Cut-off Date but allocable to a period subsequent thereto, other than payments
of principal and interest due on or before the Cut-off Date, as follows:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 4.10 (other than proceeds to be held in the
Escrow Account and applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with Section 4.14),
Section 4.11 and Section 4.15;
(v) all Condemnation Proceeds which are not applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 4.14;
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(vi) any amount required to be deposited in the Custodial Account
pursuant to Sections 4.01, 6.01 or 6.02;
(vii) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Section 5.04;
(viii) with respect to each Principal Prepayment an amount (to be
paid by the Servicer out of its funds) which, when added to all amounts
allocable to interest received in connection with the Principal
Prepayment, equals one month's interest on the amount of principal so
prepaid at the Mortgage Loan Remittance Rate;
(ix) any amounts required to be deposited by the Servicer pursuant
to Section 4.11 in connection with the deductible clause in any blanket
hazard insurance policy; and
(x) any amounts received with respect to or related to any REO
Property and all REO Disposition Proceeds pursuant to Section 4.16.
The foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges and assumption
fees, to the extent permitted by Section 6.01, need not be deposited by the
Servicer into the Custodial Account. Any interest paid on funds deposited in the
Custodial Account by the depository institution shall accrue to the benefit of
the Servicer and the Servicer shall be entitled to retain and withdraw such
interest from the Custodial Account pursuant to Section 4.05.
Section 4.05 Permitted Withdrawals From Custodial Account. The Servicer
shall, from time to time, withdraw funds from the Custodial Account for the
following purposes:
(i) to make payments to the Owner in the amounts and in the manner
provided for in Section 5.01;
(ii) to reimburse itself for Monthly Advances of the Servicer's
funds made pursuant to Section 5.03, the Servicer's right to reimburse
itself pursuant to this sub clause (ii) being limited to amounts received
on the related Mortgage Loan which represent late Monthly Payments,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and such
other amounts as may be collected by the Servicer respecting which any
such advance was made, it being understood that, in the case of any such
reimbursement, the Servicer's right thereto shall be prior to the rights
of Owner, and all other amounts required to be paid to the Owner with
respect to such Mortgage Loan;
(iii) to reimburse itself for unreimbursed Servicing Advances, and
for any unpaid Servicing Fees, the Servicer's right to reimburse itself
pursuant to this subclause (iii) with respect to any Mortgage Loan being
limited to related Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds and such other amounts as may be collected by the Servicer from
the Mortgagor or otherwise relating to the Mortgage Loan, it being
understood that, in the case of any such reimbursement, the Servicer's
right thereto shall be prior to the rights of Owner;
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(iv) reserved;
(v) to pay itself as additional servicing compensation any interest
on funds deposited in the Custodial Account;
(vi) to reimburse itself for expenses incurred and reimbursable to
it pursuant to Section 8.01;
(vii) to pay any amount required to be paid pursuant to Section 4.16
related to any REO Property, it being understood that, in the case of any
such expenditure or withdrawal related to a particular REO Property, the
amount of such expenditure or withdrawal from the Custodial Account shall
be limited to amounts on deposit in the Custodial Account with respect to
the related REO Property;
(viii) to reimburse itself for any Servicing Advances or REO
expenses after liquidation of the Mortgaged Property not otherwise
reimbursed above;
(ix) to remove funds inadvertently placed in the Custodial Account
by the Servicer; and
(x) to clear and terminate the Custodial Account upon the
termination of this Agreement.
In the event that the Custodial Account is interest bearing, on each
Remittance Date, the Servicer, in addition to it withdrawal rights stated above,
shall withdraw all interest earned on funds on deposit in the Custodial Account
except for those amounts which, pursuant to Section 5.01, the Servicer is not
obligated to remit on such Remittance Date. The Servicer may use such withdrawn
funds only for the purposes described in this Section 4.05.
Section 4.06 Establishment of and Deposits to Escrow Account. The
Servicer shall segregate and hold all funds collected and received pursuant to a
Mortgage Loan constituting Escrow Payments separate and apart from any of its
own funds and general assets and shall establish and maintain one or more Escrow
Accounts, in the form of time deposit or demand accounts, titled, "▇▇▇▇▇ Fargo
Bank, N.A., in trust for the Owner and/or subsequent Owners of Residential
Mortgage Loans, and various Mortgagors - T & I." The Escrow Accounts shall be
established with a Qualified Depository, in a manner which shall provide maximum
available insurance thereunder. Upon request of the Owner and within ten (10)
days thereof, the Servicer shall provide the Owner with written confirmation of
the existence of such Escrow Account in the form attached hereto as Exhibit F.
Funds deposited in the Escrow Account may be drawn on by the Servicer in
accordance with Section 4.07.
The Servicer shall deposit in the Escrow Account or Accounts within
two (2) Business Days of Servicer's receipt, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage Loans,
for the purpose of effecting timely payment of any such items as required
under the terms of this Agreement;
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(ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or repair of any
Mortgaged Property; and
(iii) all payments on account of Buydown Funds.
The Servicer shall make withdrawals from the Escrow Account only to
effect such payments as are required under this Agreement, as set forth in
Section 4.07. The Servicer shall be entitled to retain any interest paid on
funds deposited in the Escrow Account by the depository institution, other than
interest on escrowed funds required by law to be paid to the Mortgagor. To the
extent required by law, the Servicer shall pay interest on escrowed funds to the
Mortgagor notwithstanding that the Escrow Account may be non-interest bearing or
that interest paid thereon is insufficient for such purposes.
Section 4.07 Permitted Withdrawals From Escrow Account. Withdrawals
from the Escrow Account or Accounts may be made by the Servicer only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments for
the related Mortgage;
(ii) to reimburse the Servicer for any Servicing Advances made by
the Servicer pursuant to Section 4.08 with respect to a related Mortgage
Loan, but only from amounts received on the related Mortgage Loan which
represent late collections of Escrow Payments thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess of
the amounts required under the terms of the related Mortgage Loan;
(iv) for transfer to the Custodial Account for application to reduce
the principal balance of the Mortgage Loan in accordance with the terms of
the related Mortgage and Mortgage Note;
(v) for application to the restoration or repair of the Mortgaged
Property in accordance with the procedures outlined in Section 4.14;
(vi) to pay to the Servicer, or any Mortgagor to the extent required
by law, any interest paid on the funds deposited in the Escrow Account;
(vii) to remove funds inadvertently placed in the Escrow Account by
the Servicer;
(viii) to remit to Owner payments on account of Buydown Funds as
applicable; and
(ix) to clear and terminate the Escrow Account on the termination of
this Agreement.
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Section 4.08 Payment of Taxes, Insurance and Other Charges. With
respect to each Mortgage Loan, the Servicer shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates, sewer
rents, and other charges which are or may become a lien upon the Mortgaged
Property and the status of PMI Policy or LPMI Policy premiums and fire and
hazard insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges (including renewal premiums) and shall effect payment
thereof prior to the applicable penalty or termination date, employing for such
purpose deposits of the Mortgagor in the Escrow Account which shall have been
estimated and accumulated by the Servicer in amounts sufficient for such
purposes, as allowed under the terms of the Mortgage. The Servicer assumes full
responsibility for the timely payment of all such bills and shall effect timely
payment of all such charges irrespective of each Mortgagor's faithful
performance in the payment of same or the making of the Escrow Payments, and the
Servicer shall make advances from its own funds to effect such payments.
Section 4.09 Protection of Accounts. The Servicer may transfer the
Custodial Account or the Escrow Account to a different Qualified Depository from
time to time, provided that the Servicer shall give notice to the Owner of such
transfer.
Section 4.10 Maintenance of Hazard Insurance. The Servicer shall
cause to be maintained for each Mortgage Loan hazard insurance such that all
buildings upon the Mortgaged Property are insured by an insurer acceptable to
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac against loss by fire, hazards of extended coverage and
such other hazards as are customary in the area where the Mortgaged Property is
located, in an amount which is at least equal to the greater of: (i) 100% of the
insurable value on a replacement cost basis of the improvements on the related
Mortgaged Property and (ii) the greater of (a) the outstanding principal balance
of the Mortgage Loan and (b) an amount such that the proceeds of such insurance
shall be sufficient to prevent the application to the Mortgagor or the loss
payee of any coinsurance clause under the policy. In the event a hazard
insurance policy shall be in danger of being terminated, or in the event the
insurer shall cease to be acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, the Servicer
shall notify the Owner and the related Mortgagor, and shall use its best
efforts, as permitted by applicable law, to obtain from another Qualified
Insurer a replacement hazard insurance policy substantially and materially
similar in all respects to the original policy. In no event, however, shall a
Mortgage Loan be without a hazard insurance policy at any time, subject only to
Section 4.11 hereof.
If the related Mortgaged Property is located in an area identified
by the Flood Emergency Management Agency as having special flood hazards (and
such flood insurance has been made available) the Servicer shall cause to be
maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration in effect with a generally
acceptable insurance carrier acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac in an
amount representing coverage equal to the lesser of: (i) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss on a
replacement cost basis (or the unpaid balance of the mortgage if replacement
cost coverage is not available for the type of building insured) and (ii) the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of the
Mortgage Loan, the Servicer determines in accordance with applicable law and
pursuant to the ▇▇▇▇▇▇ Mae Guides that a Mortgaged Property is located in a
special flood hazard area and is not covered by flood insurance or is covered in
an amount less than the amount required by the Flood Disaster
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Protection Act of 1973, as amended, the Servicer shall notify the related
Mortgagor that the Mortgagor must obtain such flood insurance coverage, and if
said Mortgagor fails to obtain the required flood insurance coverage within 45
days after such notification, the Servicer shall immediately force place the
required flood insurance on the Mortgagor's behalf.
If a Mortgage is secured by a unit in a condominium project, the
Servicer shall use reasonable efforts to verify that the coverage required of
the owner's association, including hazard, flood, liability, and fidelity
coverage, is being maintained in accordance with then current ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac requirements, secure from the owner's association its agreement to
notify the Servicer promptly of any change in the insurance coverage or of any
condemnation or casualty loss that may have a material effect on the value of
the Mortgaged Property as security.
In the event that the Owner or the Servicer shall determine that the
Mortgaged Property should be insured against loss or damage by hazards and risks
not covered by the insurance required to be maintained by the Mortgagor pursuant
to the terms of the Mortgage, the Servicer shall communicate and consult with
the Mortgagor with respect to the need for such insurance and bring to the
Mortgagor's attention the required amount of coverage for the Mortgaged Property
and if the Mortgagor does not obtain such coverage, the Servicer shall
immediately force place the required coverage on the Mortgagor's behalf.
All policies required hereunder shall name the Servicer as loss
payee and shall be endorsed with standard or union mortgagee clauses, without
contribution, which shall provide for at least 30 days prior written notice of
any cancellation, reduction in amount or material change in coverage.
The Servicer shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Servicer shall not accept any such insurance policies from insurance
companies unless such companies are acceptable to ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac and
are licensed to do business in the jurisdiction in which the Mortgaged Property
is located. The Servicer shall determine that such policies provide sufficient
risk coverage and amounts, that they insure the property owner, and that they
properly describe the property address.
Pursuant to Section 4.04, any amounts collected by the Servicer
under any such policies (other than amounts to be deposited in the Escrow
Account and applied to the restoration or repair of the related Mortgaged
Property, or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor, in accordance with the Servicer's normal servicing
procedures as specified in Section 4.14) shall be deposited in the Custodial
Account subject to withdrawal pursuant to Section 4.05.
Section 4.11 Maintenance of Mortgage Impairment Insurance. In the
event that the Servicer shall obtain and maintain a blanket policy insuring
against losses arising from fire, flood and hazards covered under extended
coverage on all of the Mortgage Loans, then, to the extent such policy provides
coverage in an amount equal to the amount required pursuant to Section 4.10 and
otherwise complies with all other requirements of Section 4.10, it shall
conclusively be deemed to have satisfied its obligations as set forth in Section
4.10. The
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Servicer shall prepare and make any claims on the blanket policy as deemed
necessary by the Servicer in accordance with Accepted Servicing Practices. Any
amounts collected by the Servicer under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account subject to withdrawal pursuant
to Section 4.05. Such policy may contain a deductible clause, in which case, in
the event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 4.10, and there shall have been a loss
which would have been covered by such policy, the Servicer shall deposit in the
Custodial Account at the time of such loss the amount not otherwise payable
under the blanket policy because of such deductible clause, such amount to be
deposited from the Servicer's funds, without reimbursement therefore. Upon
request of the Owner, the Servicer shall cause to be delivered to such Owner a
certificate of insurance and a statement from the insurer thereunder that such
policy shall in no event be terminated or materially modified without 30 days'
prior written notice to such Owner.
Section 4.12 Maintenance of Fidelity Bond and Errors and Omissions
Insurance. The Servicer shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other Persons acting in any
capacity requiring such Persons to handle funds, money, documents or papers
relating to the Mortgage Loans ("Servicer Employees"). Any such Fidelity Bond
and Errors and Omissions Insurance Policy shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Servicer against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such Servicer Employees. Such Fidelity Bond and Errors and
Omissions Insurance Policy also shall protect and insure the Servicer against
losses in connection with the release or satisfaction of a Mortgage Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section 4.12 requiring such Fidelity Bond and Errors and
Omissions Insurance Policy shall diminish or relieve the Servicer from its
duties and obligations as set forth in this Agreement. The minimum coverage
under any such Fidelity Bond and Errors and Omissions Insurance Policy shall be
acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. Upon the request of the Owner, the
Servicer shall cause to be delivered to the Owner a certified true copy of such
Fidelity Bond and Errors and Omissions Insurance Policy and a statement from the
surety and the insurer that such Fidelity Bond and Errors and Omissions
Insurance Policy shall in no event be terminated or materially modified without
30 days' prior written notice to the Owner.
Section 4.13 Inspections. If any Mortgage Loan is more than 60 days
delinquent, the Servicer immediately shall inspect the Mortgaged Property and
shall conduct subsequent inspections in accordance with Accepted Servicing
Practices or as may be required by the primary mortgage guaranty insurer. The
Servicer shall keep a record of each such inspection and, upon request, shall
provide the Owner with such information.
Section 4.14 Restoration of Mortgaged Property. The Servicer need
not obtain the approval of the Owner prior to releasing any Insurance Proceeds
or Condemnation Proceeds to the Mortgagor to be applied to the restoration or
repair of the Mortgaged Property if such release is in accordance with Accepted
Servicing Practices. For claims greater than $20,000, at a minimum the Servicer
shall comply with the following conditions in connection with any such release
of Insurance Proceeds or Condemnation Proceeds:
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(i) the Servicer shall receive satisfactory independent verification
of completion of repairs and issuance of any required approvals with
respect thereto;
(ii) the Servicer shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens;
(iii) the Servicer shall verify that the Mortgage Loan is not in
default; and
(iv) pending repairs or restoration, the Servicer shall place the
Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
If the Owner is named as an additional loss payee, the Servicer is
hereby empowered to endorse any loss draft issued in respect of such a claim in
the name of the Owner.
Section 4.15 Maintenance of PMI Policy or LPMI Policy; Claims. With
respect to each Mortgage Loan with an LTV in excess of 80% at the time of
origination, the Servicer shall, without any cost to the Owner maintain or cause
the Mortgagor to maintain in full force and effect a PMI Policy or LPMI Policy
insuring a portion of the unpaid principal balance of the Mortgage Loan as to
payment defaults. If the Mortgage Loan is insured by a PMI Policy for which the
Mortgagor pays all premiums, the coverage will remain in place until (i) the LTV
decreases to 78% or (ii) the PMI Policy is otherwise terminated pursuant to the
Homeowners Protection Act of 1998, 12 USC ss.4901, et seq. In the event that
such PMI Policy or LPMI Policy shall be terminated other than as required by
law, the Servicer shall obtain from another Qualified Insurer a comparable
replacement policy, with a total coverage equal to the remaining coverage of
such terminated PMI Policy or LPMI Policy. If the insurer shall cease to be a
Qualified Insurer, the Servicer shall determine whether recoveries under the PMI
Policy or LPMI Policy are jeopardized for reasons related to the financial
condition of such insurer, it being understood that the Servicer shall in no
event have any responsibility or liability for any failure to recover under the
PMI Policy or LPMI Policy for such reason. If the Servicer determines that
recoveries are so jeopardized, it shall notify the Owner and the Mortgagor, if
required, and obtain from another Qualified Insurer a replacement insurance
policy. The Servicer shall not take any action which would result in noncoverage
under any applicable PMI Policy or LPMI Policy, of any loss which, but for the
actions of the Servicer would have been covered thereunder. In connection with
any assumption or substitution agreement entered into or to be entered into
pursuant to Section 6.01, the Servicer shall promptly notify the insurer under
the related PMI Policy or LPMI Policy, if any, of such assumption or
substitution of liability in accordance with the terms of such PMI Policy or
LPMI Policy and shall take all actions which may be required by the insurer as a
condition to the continuation of coverage under the PMI Policy or LPMI Policy.
If such PMI Policy or LPMI Policy is terminated as a result of such assumption
or substitution of liability, the Servicer shall obtain a replacement PMI Policy
or LPMI Policy as provided above.
In connection with its activities as servicer, the Servicer agrees
to prepare and present, on behalf of itself and the Owner, claims to the insurer
under any PMI Policy or LPMI Policy or any other primary mortgage guaranty
insurance policies obtained and paid for by the Owner, in a timely fashion in
accordance with the terms of such PMI Policy or LPMI Policy and, in this regard,
to take such action as shall be necessary to permit recovery under any PMI
Policy
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or LPMI Policy or any other primary mortgage guaranty insurance policies
obtained and paid for by the Owner respecting a defaulted Mortgage Loan.
Pursuant to Section 4.04, any amounts collected by the Servicer under any PMI
Policy or LPMI Policy shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 4.05.
Section 4.16 Title, Management and Disposition of REO Property. In
the event that title to any Mortgaged Property is acquired in foreclosure or by
deed in lieu of foreclosure, the deed or certificate of sale shall be taken in
the name of the Owner's designee (and not in the name of the Owner), or in the
event the Owner's designee is not authorized or permitted to hold title to real
property in the state where the REO Property is located, or would be adversely
affected under the "doing business" or tax laws of such state by so holding
title, the deed or certificate of sale shall be taken in the name of such Person
or Persons as shall be consistent with an Opinion of Counsel obtained by the
Servicer from any attorney duly licensed to practice law in the state where the
REO Property is located. The Person or Persons holding such title other than the
Owner shall acknowledge in writing that such title is being held as nominee for
the Owner.
The Servicer shall manage, conserve, protect and operate each REO
Property for the Owner solely for the purpose of its prompt disposition and
sale. The Servicer, either itself or through an agent selected by the Servicer,
shall manage, conserve, protect and operate the REO Property in the same manner
that it manages, conserves, protects and operates other foreclosed property for
its own account, and in the same manner that similar property in the same
locality as the REO Property is managed. The Servicer shall attempt to sell the
same on such terms and conditions as the Servicer deems to be in the best
interest of the Owner.
The Servicer shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within one (1) year after title has been taken to such REO Property (excluding
any applicable redemption periods), unless (i) a REMIC election has not been
made with respect to the arrangement under which the Mortgage Loans and the REO
Property are held, and (ii) the Servicer determines, and gives an appropriate
notice to the Owner to such effect, that a longer period is necessary for the
orderly liquidation of such REO Property. If a period longer than one (1) year
is permitted under the foregoing sentence, (i) the Servicer shall report monthly
to the Owner as to the progress being made in selling such REO Property and (ii)
if a purchase money mortgage is taken in the name of the Servicer, as mortgagee,
in connection with such sale, such purchase money mortgage shall not be held
pursuant to this Agreement.
The Servicer shall also maintain on each REO Property fire and
hazard insurance with extended coverage in amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
The disposition of REO Property shall be carried out by the Servicer
at such price, and upon such terms and conditions, as the Servicer deems to be
in the best interests of the Owner. The proceeds of sale of the REO Property
shall be promptly deposited in the Custodial Account. As soon as practical
thereafter the expenses of such sale shall be paid and the Servicer
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shall collect the related REO Disposition Fee, reimburse itself for any related
unreimbursed Servicing Advances and unpaid Servicing Fees. On the Remittance
Date immediately following the receipt of such sale proceeds, the net cash
proceeds of such sale remaining in the Custodial Account shall be distributed to
the Owner.
The Servicer shall withdraw from the Custodial Account funds
necessary for the proper operation management and maintenance of the REO
Property, including the cost of maintaining any hazard insurance pursuant to
Section 4.10 and the fees of any managing agent of the Servicer, or the Servicer
itself. The Servicer shall make monthly distributions on each Remittance Date to
the Owner of the net cash flow from the REO Property (which shall equal the
revenues from such REO Property net of the expenses described in this Section
4.16 and of any reserves reasonably required from time to time to be maintained
to satisfy anticipated liabilities for such expenses).
Section 4.17 Real Estate Owned Reports. Together with the statement
furnished pursuant to Section 5.02, the Servicer shall furnish to the Owner on
or before the Remittance Date each month a statement with respect to any REO
Property covering the operation of such REO Property for the previous month and
the Servicer's efforts in connection with the sale of such REO Property and any
rental of such REO Property incidental to the sale thereof for the previous
month. That statement shall be accompanied by such other information reasonably
available to the Servicer and as the Owner shall reasonably request.
Section 4.18 Liquidation Reports. Upon the foreclosure sale of any
Mortgaged Property or the acquisition thereof by the Owner pursuant to a deed in
lieu of foreclosure, the Servicer shall submit to the Owner a liquidation report
with respect to such Mortgaged Property.
Section 4.19 Reports of Foreclosures and Abandonments of Mortgaged
Property. Following the foreclosure sale or abandonment of any Mortgaged
Property, the Servicer shall report such foreclosure or abandonment as required
pursuant to Section 6050J of the Code. The Servicer shall file information
reports with respect to the receipt of mortgage interest received in a trade or
business and information returns relating to cancellation of indebtedness income
with respect to any Mortgaged Property as required by the Code. Such reports
shall be in form and substance sufficient to meet the reporting requirements
imposed by the Code.
Section 4.20 Application of Buydown Funds. With respect to each
Buydown Mortgage Loan, the Servicer shall have deposited into the Escrow
Account, no later than the last day of the month, Buydown Funds in an amount
equal to the aggregate undiscounted amount of payments that, when added to the
amount the Mortgagor on such Mortgage Loan is obligated to pay on all Due Dates
in accordance with the terms of the Buydown Agreement, is equal to the full
scheduled Monthly Payments which are required to be paid by the Mortgagor under
the terms of the related Mortgage Note (without regard to the related Buydown
Agreement as if the Mortgage Loan were not subject to the terms of the Buydown
Agreement). With respect to each Buydown Mortgage Loan, the Servicer will
distribute to the Owner on each Remittance Date an amount of Buydown Funds equal
to the amount that, when added to the amount required to be paid on such date by
the related Mortgagor, pursuant to and in accordance with the related Buydown
Agreement, equals the full Monthly Payment that would otherwise be required to
be
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paid on such Mortgage Loan by the related Mortgagor under the terms of the
related Mortgage Note (as if the Mortgage Loan were not a Buydown Mortgage Loan
and without regard to the related Buydown Agreement).
If the Mortgagor on a Buydown Mortgage Loan defaults on such
Mortgage Loan during the Buydown Period and the Mortgaged Property securing such
Buydown Mortgage Loan is sold in the liquidation thereof (either by the Servicer
or the insurer under any related Primary Insurance Policy) the Servicer shall,
on the Remittance Date following the date upon which Liquidation Proceeds or REO
Disposition proceeds are received with respect to any such Buydown Mortgage
Loan, distribute to the Owner all remaining Buydown Funds for such Mortgage Loan
then remaining in the Escrow Account. Pursuant to the terms of each Buydown
Agreement, any amounts distributed to the Owner in accordance with the preceding
sentence will be applied to reduce the outstanding principal balance of the
related Buydown Mortgage Loan. If a Mortgagor on a Buydown Mortgage Loan prepays
such Mortgage Loan in its entirety during the related Buydown Period, the
Servicer shall be required to withdraw from the Escrow Account any Buydown Funds
remaining in the Escrow Account with respect to such Buydown Mortgage Loan in
accordance with the related Buydown Agreement. If a Principal Prepayment by a
Mortgagor on a Buydown Mortgage Loan during the related Buydown Period, together
with any Buydown Funds then remaining in the Escrow Account related to such
Buydown Mortgage Loan, would result in a Principal Prepayment of the entire
unpaid principal balance of the Buydown Mortgage Loan, the Servicer shall
distribute to the Owner on the Remittance Date occurring in the month
immediately succeeding the month in which such Principal Prepayment is received,
all Buydown Funds related to such Mortgage Loan so remaining in the Escrow
Account, together with any amounts required to be deposited into the Custodial
Account.
Section 4.21 Notification of Adjustments. With respect to each
adjustable rate Mortgage Loan, the Servicer shall adjust the Mortgage Interest
Rate on the related Adjustment Date in compliance with the requirements of
applicable law and the related Mortgage and Mortgage Note. The Servicer shall
execute and deliver any and all necessary notices required under applicable law
and the terms of the related Mortgage Note and Mortgage regarding the Mortgage
Interest Rate adjustments. Upon the discovery by the Servicer or the receipt of
notice from the Owner that the Servicer has failed to adjust a Mortgage Interest
Rate in accordance with the terms of the related Mortgage Note, the Servicer
shall immediately deposit in the Custodial Account from its own funds the amount
of any interest loss or deferral caused the Owner thereby.
Section 4.22 Confidentiality/Protection of Customer Information.
Each party agrees that it shall comply with all applicable laws and regulations
regarding the privacy or security of Customer Information and shall maintain
appropriate administrative, technical and physical safeguards to protect the
security, confidentiality and integrity of Customer Information, including
maintaining security measures designed to meet the objectives of the Interagency
Guidelines Establishing Standards for Safeguarding Customer Information, 66 Fed.
Reg. 8616 (the "Interagency Guidelines"). For purposes of this Section, the term
"Customer Information" shall have the meaning assigned to it in the Interagency
Guidelines.
Section 4.23 Due Dates other than the First Day of the Month.
Mortgage Loans having Due Dates other than the first day of a month shall be
accounted for as described in this
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Section 4.23. Any payment due on a day other than the first day of each month
shall be considered due on the first day of the month following the month in
which that payment is due as if such payment were due on the first day of said
month. For example, a payment due on January 15 shall be considered to be due on
February 1 of said month. Any payment collected on a Mortgage Loan after the
Cut-off Date shall be deposited in the Custodial Account. For Mortgage Loans
with Due Dates on the first day of a month, deposits to the Custodial Account
begin with the payment due on the first of the month following the Cut-off Date.
Section 4.24 Fair Credit Reporting Act. The Servicer, in its
capacity as servicer for each Mortgage Loan, agrees to fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g., favorable and unfavorable) on its
borrower credit files to Equifax, Experian and Trans Union Credit Information
Company, on a monthly basis.
Section 4.25 Use of Subservicers and Subcontractors. The Servicer
shall not hire or otherwise utilize the services of any Subservicer to fulfill
any of the obligations of the Servicer under this Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions of
paragraph (a) of this Section 4.25. The Servicer shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the services of any Subcontractor, to fulfill any
of the obligations of the Servicer under this Agreement or any Reconstitution
Agreement unless the Servicer complies with the provisions of paragraph (b) of
this Section 4.25.
(a) It shall not be necessary for the Servicer to seek the consent
of the Owner, any Master Servicer or any Depositor to the utilization of any
Subservicer. The Servicer shall cause any Subservicer used by the Servicer (or
by any Subservicer) for the benefit of the Owner and any Depositor to comply
with the provisions of this Section 4.25 and with Sections 6.04, 6.06 and 9.01
of this Agreement to the same extent as if such Subservicer were the Servicer,
and to provide the information required with respect to such Subservicer under
Section 9.01 of this Agreement. The Servicer shall be responsible for obtaining
from each Subservicer and delivering to the Owner and any Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
6.04 and any assessment of compliance and attestation required to be delivered
by such Subservicer under Section 6.06 and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 6.06 as and when required to be delivered.
(b) It shall not be necessary for the Servicer to seek the consent
of the Owner, any Master Servicer or any Depositor to the utilization of any
Subcontractor. The Servicer shall promptly upon request provide to the Owner,
any Master Servicer and any Depositor (or any designee of the Depositor, such as
a master servicer or administrator) a written description (in form and substance
satisfactory to the Owner, such Master Servicer and such Depositor) of the role
and function of each Subcontractor utilized by the Servicer or any Subservicer,
specifying (i) the identity of each such Subcontractor, (ii) which (if any) of
such Subcontractors are "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB, and (iii) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by each
Subcontractor identified pursuant to clause (ii) of this paragraph.
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As a condition to the utilization of any Subcontractor determined to
be "participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Owner, any Master
Servicer and any Depositor to comply with the provisions of Sections 6.06 and
9.01 of this Agreement to the same extent as if such Subcontractor were the
Servicer. The Servicer shall be responsible for obtaining from each
Subcontractor and delivering to the Owner, any Master Servicer and any Depositor
any assessment of compliance and attestation required to be delivered by such
Subcontractor under Section 6.06, in each case as and when required to be
delivered.
ARTICLE V
PAYMENTS TO OWNER
Section 5.01 Remittances. On each Remittance Date the Servicer shall
remit by wire transfer of immediately available funds to the Owner: (a) all
amounts deposited in the Custodial Account as of the close of business on the
Determination Date, (net of charges against or withdrawals from the Custodial
Account pursuant to Section 4.05), plus (b) all amounts, if any, which the
Servicer is obligated to distribute pursuant to Section 5.03, minus (c) any
amounts attributable to Principal Prepayments received after the applicable
Principal Prepayment Period which amounts shall be remitted on the following
Remittance Date, together with any additional interest required to be deposited
in the Custodial Account in connection with such Principal Prepayment in
accordance with Section 4.04(viii); minus (d) any amounts attributable to
Monthly Payments collected but due on a Due Date or Dates subsequent to the
first day of the month of the Remittance Date, and minus (e) any amounts
attributable to Buydown Funds being held in the Custodial Account, which amounts
shall be remitted on the Remittance Date next succeeding the Due Period for such
amounts.
All cash flows from Prepayment Charges shall be passed through to
the Owner and shall not be waived by the Servicer, except pursuant to Section
4.01.
With respect to any remittance received by the Owner after the
second Business Day following the Business Day on which such payment was due,
the Servicer shall pay to the Owner interest on any such late payment at an
annual rate equal to the Prime Rate, adjusted as of the date of each change,
plus three (3) percentage points, but in no event greater than the maximum
amount permitted by applicable law. Such interest shall be deposited in the
Custodial Account by the Servicer on the date such late payment is made and
shall cover the period commencing with the day following such second Business
Day and ending with the Business Day on which such payment is made, both
inclusive. Such interest shall be remitted along with the distribution payable
on the next succeeding Remittance Date. The payment by the Servicer of any such
interest shall not be deemed an extension of time for payment or a waiver of any
Event of Default by the Servicer.
Section 5.02 Statements to Owner. Not later than the Remittance
Date, the Servicer shall furnish to the Owner, a monthly remittance advice, with
a trial balance report attached thereto, as to the remittance period ending on
the last day of the preceding month, in a form to be agreed upon by the Owner
and Servicer.
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Section 5.03 Monthly Advances by Servicer.
On the Business Day immediately preceding each Remittance
Date, the Servicer shall deposit in the Custodial Account from its own funds or
from amounts held for future distribution an amount equal to all Monthly
Payments (with interest adjusted to the Mortgage Loan Remittance Rate) which
were due on the Mortgage Loans during the applicable Due Period and which were
delinquent at the close of business on the Determination Date or which were
deferred pursuant to Section 4.01. Any amounts held for future distribution and
so used shall be replaced by the Servicer by deposit in the Custodial Account on
or before any future Remittance Date if funds in the Custodial Account on such
Remittance Date shall be less than payments to the Owner required to be made on
such Remittance Date. The Servicer's obligation to make such Monthly Advances as
to any Mortgage Loan will continue through the earlier of: (i) the last Monthly
Payment due prior to the payment in full of the Mortgage Loan or (ii) the
Remittance Date prior to the date the Mortgage Loan is converted to REO
Property, provided however, that if requested in connection with a
securitization, the Servicer shall be obligated to make such advances through
the last Remittance Date prior to the Remittance Date for the distribution of
all Liquidation Proceeds and other payments or recoveries (including REO
Disposition Proceeds, Insurance Proceeds and Condemnation Proceeds) with respect
to the Mortgage Loan; provided, however, that such obligation shall cease if the
Servicer determines, in its sole reasonable opinion, that advances with respect
to such Mortgage Loan are non-recoverable by the Servicer from Liquidation
Proceeds, REO Disposition Proceeds, Insurance Proceeds, Condemnation Proceeds,
or otherwise with respect to a particular Mortgage Loan. In the event that the
Servicer determines that any such advances are non-recoverable, the Servicer
shall provide the Owner with a certificate signed by two officers of the
Servicer evidencing such determination.
Section 5.04
Repurchase. The Servicer shall cooperate with the Owner in
facilitating the repurchase of any Mortgage Loan by the Seller. Upon receipt by
the Servicer of notice from the Owner of a breach by the Seller of a
representation or warranty contained in any agreement between the Owner and the
Seller, or a request by the Owner for the Seller to repurchase any Mortgage
Loan, the Servicer shall, at the direction of the Owner, use its best efforts to
cure and correct any such breach related to such deficiencies of the related
Mortgage Loans.
At the time of repurchase, the Owner or the Custodian, as
applicable, and the Servicer shall arrange for the reassignment of the
repurchased Mortgage Loan to the Seller according to the Owner's instructions
and the delivery of any documents held by the Servicer with respect to the
repurchased Mortgage Loan. The Servicer will facilitate the remittance of
repurchase funds between the Seller and the Owner, but shall not be required to
advance any funds for such repurchase and shall be reimbursed for any expenses
incurred due to such repurchase.
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ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 Transfers of Mortgaged Property. The Servicer shall use
its best efforts to enforce any "due-on-sale" provision contained in any
Mortgage or Mortgage Note and to deny assumption by the Person to whom the
Mortgaged Property has been or is about to be sold whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
liable on the Mortgage and the Mortgage Note. When the Mortgaged Property has
been conveyed by the Mortgagor, the Servicer shall, to the extent it has
knowledge of such conveyance, exercise its rights to accelerate the maturity of
such Mortgage Loan under the "due-on-sale" clause applicable thereto, provided,
however, that the Servicer shall not exercise such rights if prohibited by law
from doing so or if the exercise of such rights would impair or threaten to
impair any recovery under the related PMI Policy or LPMI Policy, if any.
If the Servicer reasonably believes it is unable under applicable
law to enforce such "due-on-sale" clause, the Servicer shall enter into (i) an
assumption and modification agreement with the person to whom such property has
been conveyed, pursuant to which such person becomes liable under the Mortgage
Note and the original Mortgagor remains liable thereon or (ii) in the event the
Servicer is unable under applicable law to require that the original Mortgagor
remain liable under the Mortgage Note and the Servicer has the prior consent of
the primary mortgage guaranty insurer, a substitution of liability agreement
with the purchaser of the Mortgaged Property pursuant to which the original
Mortgagor is released from liability and the purchaser of the Mortgaged Property
is substituted as Mortgagor and becomes liable under the Mortgage Note. If an
assumption fee is collected by the Servicer for entering into an assumption
agreement the fee will be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage Loan,
the outstanding principal amount of the Mortgage Loan nor any other material
terms shall be changed without Owner's consent.
To the extent that any Mortgage Loan is assumable, the Servicer
shall inquire diligently into the credit worthiness of the proposed transferee,
and shall use the underwriting criteria for approving the credit of the proposed
transferee which are used with respect to underwriting mortgage loans of the
same type as the Mortgage Loan. If the credit worthiness of the proposed
transferee does not meet such underwriting criteria, the Servicer diligently
shall, to the extent permitted by the Mortgage or the Mortgage Note and by
applicable law, accelerate the maturity of the Mortgage Loan.
Section 6.02 Satisfaction of Mortgages and Release of Mortgage
Files. Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer shall notify the Owner in the monthly
remittance advice as provided in Section 5.02, and may request the release of
any Mortgage Loan Documents. If such Mortgage Loan is a MERS Mortgage Loan, the
Servicer is authorized to cause the removal from the registration on the MERS
System of such Mortgage and to execute and deliver, on behalf of the Owner, any
and all instruments of satisfaction or cancellation or of partial or full
release.
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If the Servicer satisfies or releases a Mortgage without first
having obtained payment in full of the indebtedness secured by the Mortgage
(other than as a result of a modification of the Mortgage Loan or a liquidation
of the Mortgaged Property pursuant to the terms of this Agreement) or should the
Servicer otherwise prejudice any rights the Owner may have under the mortgage
instruments, upon written demand of the Owner, the Servicer shall deposit in the
Custodial Account the entire outstanding principal balance, plus all accrued
interest on such Mortgage Loan, on the day preceding the Remittance Date in the
month following the date of such release. The Servicer shall maintain the
Fidelity Bond and Errors and Omissions Insurance Policy as provided for in
Section 4.12 insuring the Servicer against any loss it may sustain with respect
to any Mortgage Loan not satisfied in accordance with the procedures set forth
herein.
Section 6.03 Servicing Compensation. As compensation for its
services hereunder, the Servicer shall be entitled to withdraw from the
Custodial Account the amount of its Servicing Fee. The Servicing Fee shall be
payable monthly and shall be computed on the basis of the unpaid principal
balance and for the period respecting which any related interest payment on a
Mortgage Loan is received. The obligation of the Owner to pay the Servicing Fee
is limited to, and payable solely from, the interest portion (including
recoveries with respect to interest from Liquidation Proceeds, to the extent
permitted by Section 4.05) of such Monthly Payments.
Additional servicing compensation in the form of assumption fees, to
the extent provided in Section 6.01, and late payment charges and other
ancillary fees shall be retained by the Servicer to the extent not required to
be deposited in the Custodial Account. The Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement thereof except as specifically
provided for herein.
Section 6.04 Annual Statements as to Compliance. On or before March
1 of each calendar year, commencing in 2007, the Servicer shall deliver to the
Owner or any Master Servicer or Depositor a statement of compliance addressed to
the Owner, any Master Servicer and such Depositor and signed by an authorized
officer of the Servicer, to the effect that (a) a review of the Servicer's
activities during the immediately preceding calendar year (or applicable portion
thereof) and of its performance under this Agreement and any applicable
Reconstitution Agreement during such period has been made under such officer's
supervision, and (b) to the best of such officers' knowledge, based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
and any applicable Reconstitution Agreement in all material respects throughout
such calendar year (or applicable portion thereof) or, if there has been a
failure to fulfill any such obligation in any material respect, specifically
identifying each such failure known to such officer and the nature and the
status thereof.
Section 6.05 Annual Independent Public Accountants' Servicing
Report. Except with respect to Mortgage Loans that are the subject of
Securitization Transactions, on or before March 1st, commencing in 2007, the
Servicer, at its expense, shall cause a firm of independent public accountants
which is a member of the American Institute of Certified Public Accountants to
furnish a statement to each Owner to the effect that such firm has examined
certain documents and records relating to the servicing of the mortgage loans
similar in nature
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and that such firm is of the opinion that the provisions of this or similar
agreements have been complied with, and that, on the basis of such examination
conducted substantially in compliance with the Uniform Single Attestation
Program for Mortgage Bankers, nothing has come to their attention which would
indicate that such servicing has not been conducted in compliance therewith,
except for (i) such exceptions as such firm shall believe to be immaterial, and
(ii) such other exceptions as shall be set forth in such statement. By providing
Owner a copy of a Uniform Single Attestation Program Report from their
independent public accountants on an annual basis, Servicer shall be considered
to have fulfilled its obligations under this Section 6.05.
Section 6.06 Report on Assessment of Compliance and Attestation.
With respect to any Mortgage Loans that are the subject of a Securitization
Transaction on or before March 1 of each calendar year, commencing in 2007, the
Servicer shall:
(i) deliver to the Owner, any Master Servicer or any Depositor a
report (in form and substance reasonably satisfactory to the Owner, such
Master Servicer and such Depositor) regarding the Servicer's assessment of
compliance with the Servicing Criteria during the immediately preceding
calendar year, as required under Rules 13a-18 and 15d-18 of the Exchange
Act and Item 1122 of Regulation AB. Such report shall be addressed to the
Owner, such Master Servicer and such Depositor and signed by an authorized
officer of the Servicer and shall address each of the "Applicable
Servicing Criteria" specified substantially on Exhibit H hereto (or those
Servicing Criteria otherwise mutually agreed to by the Owner and the
Servicer in response to evolving interpretations of Regulation AB);
(ii) deliver to the Owner, any Master Servicer or any Depositor a
report of a registered public accounting firm reasonably acceptable to the
Owner, such Master Servicer and such Depositor that attests to, and
reports on, the assessment of the compliance made by the Servicer and
delivered pursuant to the .preceding paragraph. Such attestation shall be
in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under
the Securities Act and the Exchange Act;
(iii) cause each Subservicer and each Subcontractor, determined by
the Servicer pursuant to Section 4.25(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, to
deliver to the Owner, any Master Servicer and any Depositor an assessment
of compliance and accountants' attestation as and when provided in
paragraphs (i) and (ii) of this Section 6.06; and
(iv) if requested by the Owner, the Master Servicer or Depositor,
deliver, and cause each Subservicer and each Subcontractor described in
clause (iii) to deliver to the Owner, any Master Servicer, any Depositor
and any other Person that will be responsible for signing the
certification (a "Sarbanes Certification") required by Rules 13a-14(d) and
15d-14(d) under the Exchange Act (pursuant to Section 302 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002) on behalf of an asset-backed issuer with
respect to a Securitization Transaction a certification in the form
attached hereto as Exhibit I.
Each assessment of compliance provided by a Subservicer pursuant to
Section 6.06(i) shall address each of the Servicing Criteria specified
substantially in the form of
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Exhibit H hereto delivered to the Owner concurrently with the execution of this
Agreement or, in the case of a Subservicer subsequently appointed as such, on or
prior to the date of such appointment. An assessment of compliance provided by a
Subcontractor pursuant to Section 6.06(iii) need not address any elements of the
Servicing Criteria other than those specified by the Servicer pursuant to
Section 4.25.
The Servicer acknowledges that the parties identified in clause (iv)
above may rely on the certification provided by the Servicer pursuant to such
clause in signing a Sarbanes Certification and filing such with the Commission.
Neither the Owner, any Master Servicer or any Depositor will request delivery of
a certification under clause (iv) above unless a Depositor is required under the
Exchange Act to file an annual report on Form 10-K with respect to an issuing
entity whose asset pool includes Mortgage Loans.
Section 6.07 Remedies. (i) Any failure by the Servicer, any
Subservicer or any Subcontractor to deliver any information, report,
certification, accountants' letter or other material when and as required under
Article IX, Section 4.25, Section 6.04, Section 6.05 or Section 6.06, or any
breach by the Servicer of a representation or warranty set forth in Section
9.01(j)(i), or in a writing furnished pursuant to Section 9.01(j)(ii) and made
as of a date prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by such closing date,
or any breach by the Servicer of a representation or warranty in a writing
furnished pursuant to Section 9.01(j)(ii) to the extent made as of a date
subsequent to such closing date, shall, except as provided in sub-clause (ii) of
this Section, immediately and automatically, without notice or grace period,
constitute an Event of Default with respect to the Servicer under this Agreement
and any applicable Reconstitution Agreement, and shall entitle the Owner, any
Master Servicer or any Depositor, as applicable, in its sole discretion to
terminate the rights and obligations of the Servicer as servicer under this
Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement or any applicable Reconstitution
Agreement to the contrary) of any compensation to the Servicer; provided that to
the extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Servicer as servicer, such provision
shall be given effect.
(ii) Any failure by the Servicer, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Section 6.04, Section 6.05
or Section 6.06, including (except as provided below) any failure by the
Servicer to identify any Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB, which
continues unremedied for ten (10) calendar days after the date on which
such information, report, certification or accountants' letter was
required to be delivered shall constitute an Event of Default with respect
to the Servicer under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Owner, any Master Servicer or Depositor,
as applicable, in its sole discretion to terminate the rights and
obligations of the Servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement to the contrary) of any compensation to the Servicer; provided
that to the extent that any provision of this Agreement and/or any
applicable Reconstitution Agreement expressly provides for the survival of
certain rights
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or obligations following termination of the Servicer as servicer, such
provision shall be given effect.
Neither the Owner nor any Depositor shall be entitled to terminate
the rights and obligations of the Servicer pursuant to this subparagraph
(ii) if a failure of the Servicer to identify a Subcontractor
"participating in the servicing function" within the meaning of Item 1122
of Regulation AB was attributable solely to the role or functions of such
Subcontractor with respect to mortgage loans other than the Mortgage
Loans.
(iii) The Servicer shall promptly reimburse the Owner (or any
designee of the Owner, including the Master Servicer) and any Depositor,
as applicable, for all reasonable expenses incurred by the Owner (or such
designee) or such Depositor, as such are incurred, in connection with the
termination of the Servicer as servicer and the transfer of servicing of
the Mortgage Loans to a successor servicer. The provisions of this
paragraph shall not limit whatever rights the Owner or any Depositor may
have under other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at law, such
as an action for damages, specific performance or injunctive relief.
Section 6.08 Right to Examine Servicer Records. The Owner, or its
designee, shall have the right to examine and audit any and all of the books,
records, or other information of the Servicer, whether held by the Servicer or
by another on its behalf, with respect to or concerning this Agreement or the
Mortgage Loans, during business hours or at such other times as may be
reasonable under applicable circumstances, upon reasonable advance notice. The
Owner shall pay its own expenses associated with such examination.
Section 6.09 Compliance with REMIC Provisions. If a REMIC election
has been made with respect to the arrangement under which any of the Mortgage
Loans and REO Property are held, the Servicer shall not take any action, cause
the REMIC to take any action or fail to take (or fail to cause to be taken) any
action that, under the REMIC Provisions, if taken or not taken, as the case may
be, could (i) endanger the status of the REMIC as a REMIC or (ii) result in the
imposition of a tax upon the REMIC (including but not limited to the tax on
"prohibited transactions" as defined in Section 860F(a) (2) of the Code and the
tax on "contributions" to a REMIC set forth in Section 860G(d) of the Code)
unless the Servicer has received an Opinion of Counsel (at the expense of the
party seeking to take such action) to the effect that the contemplated action
will not endanger such REMIC status or result in the imposition of any such tax.
ARTICLE VII
SERVICER TO COOPERATE
Section 7.01 Provision of Information. During the term of this
Agreement, the Servicer shall furnish to the Owner such periodic, special, or
other reports or information, and copies or originals of any documents contained
in the Servicing File for each Mortgage Loan provided for herein. All other
special reports or information not provided for herein as shall be necessary,
reasonable, or appropriate with respect to the Owner or any regulatory agency
will be
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provided at the Owner's expense. All such reports, documents or information
shall be provided by and in accordance with all reasonable instructions and
directions which the Owner may give.
The Servicer shall execute and deliver all such instruments and take
all such action as the Owner may reasonably request from time to time, in order
to effectuate the purposes and to carry out the terms of this Agreement.
Section 7.02 Financial Statements; Servicing Facility. In connection
with marketing the Mortgage Loans, the Owner may make available to a prospective
purchaser a Consolidated Statement of Operations of the Servicer's parent
company for the most recently completed two (2) fiscal years for which such a
statement is available, as well as a Consolidated Statement of Condition at the
end of the last two (2) fiscal years covered by such Consolidated Statement of
Operations. The Servicer, upon request, also shall make available any comparable
interim statements to the extent any such statements have been prepared by or on
behalf of the Servicer's parent company (and are available upon request to
members or stockholders of the Servicer or to the public at large).
The Servicer also shall make available to Owner or prospective
purchasers a knowledgeable financial or accounting officer for the purpose of
answering questions respecting recent developments affecting the Servicer or the
financial statements of the Servicer, and to permit any prospective purchaser to
inspect the Servicer's servicing facilities for the purpose of satisfying such
prospective purchaser that the Servicer has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE VIII
THE SERVICER
Section 8.01 Indemnification; Third Party Claims. The Servicer shall
indemnify and hold the Owner and its respective present and former directors,
officers, employees and agents 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 such
parties may sustain in any way (a) related to the failure of the Servicer to
observe and perform any or all of its duties, obligations or agreements
contained in this Agreement, or to service the Mortgage Loans in strict
compliance with the all applicable requirements contained in this Agreement, or
(b) resulting from a breach of the representations and warranties contained in
this Agreement. The Servicer immediately shall notify the Owner if a claim is
made by a third party with respect to this Agreement or the Mortgage Loans,
assume (with the prior written consent of the Owner) the defense of any such
claim and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or the Owner in respect of such claim. The Servicer shall follow any
written instructions received from the Owner in connection with such claim. The
Owner promptly shall reimburse the Servicer for all amounts advanced by it
pursuant to this paragraph except when the claim is in any way related to the
Servicer's indemnification pursuant to Section 3.02, or the failure of the
Servicer to service and administer the Mortgage Loans in strict compliance with
the terms of this Agreement.
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Section 8.02 Merger or Consolidation of the Servicer. The Servicer
shall keep in full effect its existence, rights and franchises and shall obtain
and preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform its
duties under this Agreement.
Any Person into which the Servicer may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Servicer shall be a party, or any Person succeeding to the business of the
Servicer, shall be the successor of the Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, provided,
however, that the successor or surviving Person shall be an institution which is
a ▇▇▇▇▇▇ ▇▇▇/▇▇▇▇▇▇▇ Mac-approved seller/servicer in good standing. Furthermore,
in the event the Servicer transfers or otherwise disposes of all or
substantially all of its assets to an affiliate of the Servicer, such affiliate
shall satisfy the condition above, and shall also be fully liable to the Owner
for all of the Servicer's obligations and liabilities hereunder.
Section 8.03 Limitation on Liability of Servicer and Others. Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Owner for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, provided, however, that this provision shall not protect the Servicer
or any such Person against any breach of warranties or representations made
herein, or failure to perform its obligations in strict compliance with any
standard of care set forth in this Agreement or any other liability which would
otherwise be imposed under this Agreement. The Servicer and any director,
officer, employee or agent of the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement and which in its opinion may involve it in any expense or liability,
provided, however, that the Servicer may, with the consent of the Owner,
undertake any such action which it may deem necessary or desirable in respect to
this Agreement and the rights and duties of the parties hereto. In such event,
the Servicer shall be entitled to reimbursement from the Owner of the reasonable
legal expenses and costs of such action.
Section 8.04 Limitation on Resignation and Assignment by Servicer.
The Owner has entered into this Agreement with the Servicer and subsequent
purchasers will purchase the Mortgage Loans in reliance upon the independent
status of the Servicer, and the representations as to the adequacy of its
servicing facilities, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance thereof. Therefore, the
Servicer shall neither assign this Agreement or the servicing rights hereunder
or delegate its rights or duties hereunder (other than pursuant to Sections 4.01
and 4.25) or any portion hereof or sell or otherwise dispose of all of its
property or assets without the prior written consent of the Owner, which consent
shall not be unreasonably withheld.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except by mutual consent of the Servicer and the Owner or upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by
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the Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Owner which Opinion of Counsel shall be in form and substance acceptable to the
Owner. No such resignation shall become effective until a successor shall have
assumed the Servicer's responsibilities and obligations hereunder in the manner
provided in Section 12.01.
Without in any way limiting the generality of this Section 8.04, in
the event that the Servicer either shall assign this Agreement or the servicing
responsibilities hereunder or delegate its duties hereunder (other than pursuant
to Sections 4.01 and 4.25) or any portion thereof or sell or otherwise dispose
of all or substantially all of its property or assets, without the prior written
consent of the Owner, then the Owner shall have the right to terminate this
Agreement upon notice given as set forth in Section 10.01, without any payment
of any penalty or damages and without any liability whatsoever to the Servicer
or any third party.
ARTICLE IX
SECURITIZATION TRANSACTIONS
Section 9.01 Removal of Mortgage Loans from Inclusion Under this
Agreement Upon a Securitization Transaction. The Owner and the Servicer agree
that with respect to some or all of the Mortgage Loans, the Owner, at its sole
option, may effect Whole Loan Transfers or Securitization Transactions,
retaining the Servicer as the servicer thereof or subservicer if a master
servicer is employed, or as applicable the "seller/servicer." On the
Reconstitution Date, the Mortgage Loans transferred may cease to be serviced
pursuant to this Agreement; provided, however, that, in the event that any
Mortgage Loan transferred pursuant to this Section 9.01 is rejected by the
transferee, the Servicer shall continue to service such rejected Mortgage Loan
on behalf of the Owner in accordance with the terms and provisions of this
Agreement.
The Servicer shall cooperate with the Owner in connection with each
Whole Loan Transfer or Securitization Transaction in accordance with this
Section 9.01. In connection therewith the Servicer shall:
(a) make all representations and warranties with respect to the
servicing of the Mortgage Loans and with respect to the Servicer itself as of
the closing date of each Whole Loan Transfer or Securitization Transaction;
(b) execute any documents required to service the loans in
accordance with this Agreement;
(c) represent to the Owner, the depositor, the trustee, and the
initial purchaser of the securities issued in connection with any Securitization
Transaction that the Servicer has taken no action that would, nor omitted to
take any required action the omission of which would, have the effect of
impairing the mortgage insurance or guarantee on the Mortgage Loans;
(d) deliver an opinion of counsel (which can be an opinion of
in-house counsel to the Servicer) reasonably acceptable to the Owner; provided
that any out-of-pocket,
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third party expenses incurred by the Servicer in connection with the foregoing
shall be paid by the Owner;
(e) provide such additional cooperation, in connection with a
Securitization Transaction with respect to the Mortgage Loans, as is reasonably
believed necessary by the parties, including any trustee, any Rating Agency, the
Owner, as the case may be, in connection with such Whole Loan Transfers or
Securitization Transactions. The Owner shall pay all third party costs
associated with the preparation of such information.
(f) Within five (5) Business Days following request by the Owner or
any Depositor, provide to the Owner and such Depositor (or, as applicable, cause
each Subservicer to provide), in writing and in form and substance reasonably
satisfactory to the Owner and such Depositor, the information and materials
specified in subsections (g), and (h) and as promptly as practicable following
notice to or discovery by the Servicer, provide to the Owner and any Depositor
(in writing and in form and substance reasonably satisfactory to the Owner and
such Depositor) the information specified in subsection (f).
(g) If so requested by the Owner or any Depositor, the Servicer
shall provide such information regarding the Servicer, as servicer of the
Mortgage Loans, and each Subservicer (each of the Servicer and each Subservicer,
for purposes of this Section 9.01(g), a "Servicer"), as is requested for the
purpose of compliance with Items 1108, 1117 and 1119 of Regulation AB. Such
information shall include, at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's
experience in servicing assets of any type as well as a more
detailed discussion of the Servicer's experience in, and procedures
for, the servicing function it will perform under this Agreement and
any Reconstitution Agreements; information regarding the size,
composition and growth of the Servicer's portfolio of residential
mortgage loans of a type similar to the Mortgage Loans and
information on factors related to the Servicer that may be material,
in the good faith judgment of the Owner or any Depositor, to any
analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
(1) whether any prior securitizations of mortgage loans
of a type similar to the Mortgage Loans involving the Servicer
have defaulted or experienced an early amortization or other
performance triggering event because of servicing during the
three-year period immediately preceding the related
Securitization Transaction;
(2) the extent of outsourcing the Servicer utilizes;
(3) whether there has been previous disclosure of
material noncompliance with the applicable servicing criteria
with respect to other securitizations of residential mortgage
loans involving the Servicer as a
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servicer during the three-year period immediately preceding
the related Securitization Transaction;
(4) whether the Servicer has been terminated as servicer
in a residential mortgage loan securitization, either due to a
servicing default or to application of a servicing performance
test or trigger; and
(5) such other information as the Owner or any Depositor
may reasonably request for the purpose of compliance with Item
1108(b)(2) of Regulation AB.
(C) a description of any material changes during the
three-year period immediately preceding the related Securitization
Transaction to the Servicer's policies or procedures with respect to
the servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of a type similar to
the Mortgage Loans;
(D) information regarding the Servicer's financial condition,
to the extent that there is a material risk that an adverse
financial event or circumstance involving the Servicer could have a
material adverse effect on the performance by the Servicer of its
servicing obligations under this Agreement or any Reconstitution
Agreement;
(E) information regarding advances made by the Servicer on the
Mortgage Loans and the Servicer's overall servicing portfolio of
residential mortgage loans for the three-year period immediately
preceding the related Securitization Transaction, which may be
limited to a statement by an authorized officer of the Servicer to
the effect that the Servicer has made all advances required to be
made on residential mortgage loans serviced by it during such
period, or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as required,
and the reasons for such failure to advance;
(F) a description of the Servicer's processes and procedures
designed to address any special or unique factors involved in
servicing loans of a similar type as the Mortgage Loans;
(G) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of defaulted mortgage
loans or workouts;
(H) information as to how the Servicer defines or determines
delinquencies and charge-offs, including the effect of any grace
period, re-aging, restructuring, partial payments considered current
or other practices with respect to delinquency and loss experience;
(I) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against the
Servicer; and
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(J) a description of any affiliation or relationship between
the Servicer and any of the following parties to a Securitization
Transaction, as such parties are identified to the Servicer by the
Owner or any Depositor in writing in advance of such Securitization
Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(h) For the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, the Servicer
shall (or shall cause each Subservicer to: (i) provide prompt notice to the
Owner, any Master Servicer and any Depositor in writing of (A) any material
litigation or governmental proceedings involving the Servicer or any Subservicer
, (B) any affiliations or relationships that develop following the closing date
of a Securitization Transaction between the Servicer or any Subservicer and any
of the parties specified in clause (J) of paragraph (g) of this Section (and any
other parties identified in writing by the requesting party) with respect to
such Securitization Transaction, (C) any Event of Default under the terms of
this Agreement or any Reconstitution Agreement, (D) any merger, consolidation or
sale of substantially all of the assets of the Servicer, and (E) the Servicer's
entry into an agreement with a Subservicer to perform or assist in the
performance of any of the Servicer's obligations under this Agreement or any
Reconstitution Agreement and (ii) provide to the Owner and any Depositor a
description of such proceedings, affiliations or relationships.
(i) As a condition to the succession to the Servicer or any
Subservicer as servicer or subservicer under this Agreement or any
Reconstitution Agreement by any Person (i) into which the Servicer or such
Subservicer may be merged or consolidated, or (ii) which may be appointed as a
successor to the Servicer or any Subservicer, the Servicer shall provide to the
Owner and any Depositor, at least fifteen (15) calendar days prior to the
effective date of such succession or appointment, (x) written notice to the
Owner and any Depositor of such succession or appointment and (y) in writing and
in form and substance reasonably satisfactory to the Owner and such Depositor,
all information reasonably requested by the Owner or any Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect to
any class of asset-backed securities.
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(j) (i) The Servicer shall be deemed to represent to the Owner, to
any Master Servicer and to any Depositor, as of the date on which
information is first provided to the Owner, any Master Servicer or any
Depositor under this Section 9.01(j) that, except as disclosed in writing
to the Owner, any Master Servicer or such Depositor prior to such date:
(1) the Servicer is not aware and has not received notice that any
default, early amortization or other performance triggering event has
occurred as to any other securitization due to any act or failure to act
of the Servicer; (2) the Servicer has not been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing
default or to application of a servicing performance test or trigger; (3)
no material noncompliance with the applicable servicing criteria with
respect to other securitizations of residential mortgage loans involving
the Servicer as servicer has been disclosed or reported by the Servicer;
(4) no material changes to the Servicer's policies or procedures with
respect to the servicing function it will perform under this Agreement and
any Reconstitution Agreement for mortgage loans of a type similar to the
Mortgage Loans have occurred during the three-year period immediately
preceding the related Securitization Transaction; (5) there are no aspects
of the Servicer's financial condition that could have a material adverse
effect on the performance by the Servicer of its servicing obligations
under this Agreement or any Reconstitution Agreement; (6) there are no
material legal or governmental proceedings pending (or known to be
contemplated) against the Servicer or any Subservicer; and (7) there are
no affiliations, relationships or transactions relating to the Servicer or
any Subservicer with respect to any Securitization Transaction and any
party thereto identified by the related Depositor of a type described in
Item 1119 of Regulation AB.
(ii) If so requested by the Owner, any Master Servicer or any
Depositor on any date following the date on which information is first
provided to the Owner, any Master Servicer or any Depositor under this
Section 9.01(j), the Servicer shall, within five (5) Business Days
following such request, confirm in writing the accuracy of the
representations and warranties set forth in sub clause (i) above or, if
any such representation and warranty is not accurate as of the date of
such request, provide reasonably adequate disclosure of the pertinent
facts, in writing, to the requesting party.
(iii) In addition to such information as the Servicer, as servicer,
is obligated to provide pursuant to other provisions of this Agreement, if
so requested by the Owner or any Depositor, the Servicer shall provide
such information reasonably available to the Servicer regarding the
performance or servicing of the Mortgage Loans as is reasonably required
to facilitate preparation of distribution reports in accordance with Item
1121 of Regulation AB. Such information shall be provided concurrently
with the monthly reports otherwise required to be delivered by the
Servicer under this Agreement, commencing with the first such report due
not less than ten (10) Business Days following request.
(k) The Servicer shall indemnify the Owner, each affiliate of the
Owner, and each of the following parties participating in a Securitization
Transaction: each sponsor and
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issuing entity; each Person, including any Master Servicer, if applicable,
responsible for the preparation, execution or filing of any report required to
be filed with the Commission with respect to such Securitization Transaction, or
for execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such Securitization Transaction; each
broker dealer acting as underwriter, placement agent or initial Owner, each
Person who controls any of such parties or the Depositor (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act); and the
respective present and former directors, officers, employees, affiliates and
agents of each of the foregoing and of the Depositor (each an "Indemnified
Party"), and shall hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of them may
sustain arising out of or based upon:
(i)(A) any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification, data,
accountants' letter or other material provided under Sections 4.25, 6.04,
6.06, 9.01(d), (h), (i) and (g) by or on behalf of the Servicer, or
provided under Sections 4.25, 6.04, 6.06, 9.01(d), (h), (i) and (g) by or
on behalf of any Subservicer or Subcontractor (collectively, the "Servicer
Information"), or (B) the omission or alleged omission to state in the
Servicer Information a material fact required to be stated in the Servicer
Information or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, by way of clarification, that clause (B) of this paragraph shall
be construed solely by reference to the Servicer Information and not to
any other information communicated in connection with a sale or purchase
of securities, without regard to whether the Servicer Information or any
portion thereof is presented together with or separately from such other
information;
(ii) any breach by the Servicer of its obligations under this
Section 9.01(k), including particularly any failure by the Servicer, any
Subservicer or any Subcontractor to deliver any information, report,
certification, accountants' letter or other material when and as required
under Sections 4.25, 6.04, 6.06, 9.01(d), (h) (i) and (g), including any
failure by the Servicer to identify any Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Servicer of a representation or warranty set
forth in Section 9.01(j)(i) or in a writing furnished pursuant to Section
9.01(j)(ii) and made as of a date prior to the closing date of the related
Securitization Transaction, to the extent that such breach is not cured by
such closing date, or any breach by the Servicer of a representation or
warranty in a writing furnished pursuant to Section 9.01(j)(ii) to the
extent made as of a date subsequent to such closing date; or
(iv) the negligence, bad faith or willful misconduct of the Servicer
in connection with its performance under this Section 9.01(k).
If the indemnification provided for herein is unavailable or insufficient
to hold harmless an Indemnified party, then the Servicer agrees that it
shall contribute to the amount paid or payable by such Indemnified Party
as a result of any claims, losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and any
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other costs, fees and expenses incurred by such Indemnified Party in such
proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Servicer on the other.
In the case of any failure of performance described in sub-clause (ii) of
this Section 9.01(k), the Servicer shall promptly reimburse the Owner, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with respect to such Securitization Transaction, or for execution of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction, for all
costs reasonably incurred by each such party in order to obtain the
information, report, certification, accountants' letter or other material
not delivered as required by the Servicer, any Subservicer or any
Subcontractor.
This indemnification shall survive the termination of this Agreement or
the termination of any party to this Agreement.
(l) The Owner and each Person who controls the Owner (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act)
shall indemnify the Servicer, each affiliate of the Servicer, each Person who
controls any of such parties or the Servicer (within the meaning of Section 15
of the Securities Act and Section 20 of the Exchange Act) and the respective
present and former directors, officers, employees and agents of each of the
foregoing and of the Servicer, and shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon:
(i) any untrue statement of a material fact contained or alleged to
be contained in any offering materials related to a Securitization
Transaction, including without limitation the registration statement,
prospectus, prospectus supplement, any private placement memorandum, any
offering circular, any computational materials, and any amendments or
supplements to the foregoing (collectively, the "Securitization
Materials") or
(ii) the omission or alleged omission to state in the Securitization
Materials a material fact required to be stated in the Securitization
Materials or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, but
only to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission is other than a statement or omission
arising out of, resulting from, or based upon the Servicer Information.
(m) indemnify the Owner for any material misstatements, omissions or
alleged material misstatements or omissions contained in the information
provided pursuant to (g) or (j) above; provided, that the Owner shall provide
indemnification to the Servicer, its successors or assigns, with respect to any
material misstatements, omissions or alleged material misstatements or omissions
contained in any information (other than the information provided by the
Servicer pursuant to (g) or (j) above) in any securitization offering materials;
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(n) if required at any time by the Rating Agencies in connection
with any Securitization Transaction, the Servicer shall deliver such additional
documents from its Mortgage File to the Custodian as the Rating Agencies may
require (a "Rating Agency Delivery Event");
(o) to negotiate and execute one or more servicing agreements
between the Servicer and any master servicer which is generally considered to be
a prudent master servicer in the secondary mortgage market, designated by the
Owner in its sole discretion after consultation with the Servicer and/or one or
more custodial agreements among the Owner, the Servicer and a third party
custodian/trustee which is generally considered to be a prudent
custodian/trustee in the secondary mortgage market designated by the Owner in
its sole discretion after consultation with the Servicer, in either case for the
purpose of pooling the Mortgage Loans with other mortgage loans for resale or
securitization;
(p) in connection with any securitization of any Mortgage Loans, to
execute a pooling and servicing agreement, which pooling and servicing agreement
may, at the Owner's direction, contain contractual provisions including,
servicer advances of delinquent scheduled payments of principal and interest
through liquidation (unless deemed non recoverable) and prepayment interest
shortfalls (to the extent of the monthly servicing fee payable thereto);
(q) the Servicer shall, at the Owner's expense, make available to
the Owner, its affiliates, successors or assigns an agreed-upon procedures
letter concerning the aforementioned disclosures, which letter shall be issued
by an accounting firm selected by the Servicer and acceptable to the Owner, its
affiliates, successors or assigns, for inclusion in the offering materials for
the securities created in the Securitization Transaction; and
(r) in the event the Owner appoints a credit risk manager in
connection with a Securitization Transaction, to execute a credit risk
management agreement and provide reports and information reasonably required by
the credit risk manager.
The Owner and the Servicer acknowledge and agree that the purpose of
Section 9.01 is to facilitate compliance by the Owner and any Depositor with the
provisions of Regulation AB and related rules and regulations of the Commission.
Although Regulation AB is applicable by its terms only to offerings of
asset-backed securities that are registered under the Securities Act, the
Servicer acknowledges that investors in privately offered securities may require
that the Owner or any Depositor provide comparable disclosure in unregistered
offerings. References in this Agreement to compliance with Regulation AB include
provisions of comparable disclosure in private offerings.
Neither the Owner nor any Depositor shall exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder. The Servicer acknowledges that interpretations of the requirements
of Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agrees to
comply with requests made by the Owner, any Master Servicer or any Depositor in
good faith for delivery of information under these provisions
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on the basis of evolving interpretations of Regulation AB. In connection with
any Securitization Transaction, the Servicer shall cooperate fully with the
Owner to deliver to the Owner (including any of its assignees or designees) and
any Depositor, any and all statements, reports, certifications, records and any
other information necessary in the good faith determination of the Owner, any
Master Servicer or any Depositor to permit the Owner, such Master Servicer or
such Depositor to comply with the provisions of Regulation AB, together with
such disclosures relating to the Servicer, any Subservicer, and the Mortgage
Loans, or the servicing of the Mortgage Loans, reasonably believed by the Owner
or any Depositor to be necessary in order to effect such compliance.
The Owner (including any of its assignees or designees) shall
cooperate with the Servicer by providing timely notice of requests for
information under these provisions and by reasonably limiting such request to
information required, in the Owner's reasonable judgment, to comply with
Regulation AB.
In the event the Owner has elected to have the Servicer hold record
title to the Mortgages, prior to the Reconstitution Date and after the related
Closing Date the Servicer shall prepare an Assignment of Mortgage in blank or,
at the option of the Owner, to the trustee from the Servicer (to the extent such
Assignment has not been prepared on or before the related Closing Date)
acceptable to the trustee for each Mortgage Loan that is part of the Whole Loan
Transfers or Securitization Transactions. The Owner shall pay all preparation
and recording costs associated therewith. The Servicer shall execute each
Assignment of Mortgage, track such Assignments of Mortgage to ensure they have
been recorded and deliver them as required by the trustee upon the Servicer's
receipt thereof. Additionally, the Servicer shall prepare and execute, at the
direction of the Owner, any note endorsements in connection with any and all
seller/servicer agreements.
All Mortgage Loans (i) not sold or transferred pursuant to Whole
Loan Transfers or Securitization Transactions or (ii) that are subject to a
Securitization Transaction for which the related trust is terminated for any
reason, shall remain subject to this Agreement and shall continue to be serviced
in accordance with the terms of this Agreement and with respect thereto this
Agreement shall remain in full force and effect.
ARTICLE X
DEFAULT
Section 10.01 Events of Default. Each of the following shall
constitute an Event of Default on the part of the Servicer:
(i) any failure by the Servicer to remit to the Owner any payment
required to be made under the terms of this Agreement which continues
unremedied for a period of three (3) Business Days after the date upon
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Owner; or
(ii) failure by the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Servicer set forth in this
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Agreement or in the Custodial Agreement which continues unremedied for a
period of 30 days (except that such number of days shall be fifteen in the
case of a failure to pay any premium for any insurance policy required to
be maintained under this Agreement and such number of days shall be five
Business Days in the case of a failure to deliver any reports required to
be delivered to the Owner hereunder) after the earlier of (i) the date on
which written notice of such failure, requiring the same to be remedied,
shall have been given to the Servicer by the Owner or by the Custodian and
(ii) actual knowledge of such failure by the Servicer; or
(iii) failure by the Servicer to maintain its license to do business
in any jurisdiction where the Mortgaged Property is located if such
license is required; or
(iv) a decree or order of a court or agency or supervisory authority
having jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, including bankruptcy,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(v)the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or of or relating to all or substantially all of its property; or
(vi) the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of
any applicable insolvency, bankruptcy or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations or cease its normal business operations for three (3)
Business Days; or
(vii) the Servicer ceases to meet the qualifications of a ▇▇▇▇▇▇
▇▇▇/▇▇▇▇▇▇▇ Mac servicer; or
(viii) the Servicer attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or the servicing
responsibilities hereunder in violation of Section 8.04.
(ix) failure by the Servicer to duly perform, within the required
time period, its obligations under Sections 4.25, 6.04, 6.05, 6.06 and
9.01 which failure continues unremedied for a period of fifteen (15) days
after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given to the Servicer by any party to this
Agreement or by any master servicer responsible for master servicing the
Mortgage Loans pursuant to a securitization of such Mortgage Loans.
In each and every such case, so long as an Event of Default shall
not have been remedied, in addition to whatever rights the Owner may have at law
or equity to damages, including injunctive relief and specific performance, the
Owner, by notice in writing to the
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Servicer, may terminate all the rights and obligations of the Servicer under
this Agreement and in and to the Mortgage Loans and the proceeds thereof.
Upon receipt by the Servicer of such written notice, all authority
and power of the Servicer under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 12.01. Upon written request from any Owner, the
Servicer shall prepare, execute and deliver to the successor entity designated
by the Owner any and all documents and other instruments, place in such
successor's possession all Mortgage Files, and do or cause to be done all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, including but not limited to the transfer and endorsement or
assignment of the Mortgage Loans and related documents. The Servicer shall
cooperate with the Owner and such successor in effecting the termination of the
Servicer's responsibilities and rights hereunder, including without limitation,
the transfer to such successor for administration by it of all cash amounts
which shall at the time be credited by the Servicer to the Custodial Account or
Escrow Account or thereafter received with respect to the Mortgage Loans.
If any of the Mortgage Loans are MERS Mortgage Loans, in connection
with the termination or resignation (as described in Section 8.04) of the
Servicer hereunder, either (i) the successor servicer shall represent and
warrant that it is a member of MERS in good standing and shall agree to comply
in all material respects with the rules and procedures of MERS in connection
with the servicing of the Mortgage Loans that are registered with MERS, or (ii)
the Servicer shall cooperate with the successor servicer either (x) in causing
MERS to execute and deliver an Assignment of Mortgage in recordable form to
transfer the Mortgage from MERS to the Owner and to execute and deliver such
other notices, documents and other instruments as may be necessary to effect a
transfer of such Mortgage Loan or servicing of such Mortgage Loan on the MERS(R)
System to the successor servicer or (y) in causing MERS to designate on the
MERS(R) System the successor servicer as the servicer of such Mortgage Loan.
Section 10.02 Waiver of Defaults. By a written notice, the Owner may
waive any default by the Servicer in the performance of its obligations
hereunder and its consequences. Upon any waiver of a past default, such default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent thereon
except to the extent expressly so waived.
ARTICLE XI
TERMINATION
Section 11.01 Termination. This Agreement shall terminate upon
either: (i) the later of the final payment or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan or the disposition of any REO
Property with respect to the last Mortgage Loan and the remittance of all funds
due hereunder; or (ii) mutual consent of the Servicer and the Owner in writing;
or (iii) termination pursuant to Section 10.01 or 11.02. In the event of a
termination of the Servicer under Section 10.01, no liquidated damages shall be
payable to the Servicer and the Servicer shall be required, at its own expense,
to deliver to the Custodian the
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entire contents of the Mortgage File in its possession, to the extent such
contents were not previously delivered to the Custodian pursuant to this
Agreement or the Custodial Agreement.
Section 11.02 Termination Without Cause. The Owner may terminate, at
its sole option, any rights the Servicer may have hereunder, without cause as
provided in this Section 11.02. Any such notice of termination shall be in
writing and delivered to the Servicer by registered mail as provided in Section
12.05.
For termination without cause, the Servicer shall be entitled to
receive from the Owner, with respect to each Mortgage Loan subject to
termination, pursuant to this Section 11.02, an amount equal to the sum of: (i)
2.25% of the aggregate outstanding principal amount of the Mortgage Loans as of
the termination date, unless otherwise mutually agreed upon in writing by the
parties; (ii) unreimbursed Monthly Advances and Servicing Advances; (iii) costs
to transfer the Mortgage Loans to the successor servicer; and (iv) Servicing
Fees and REO Disposition Fees earned but not yet collected.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Successor to Servicer. Prior to termination of the
Servicer's responsibilities and duties under this Agreement pursuant to Sections
8.04, 10.01, 11.01(ii) or pursuant to Section 11.02 the Owner shall, (i) succeed
to and assume all of the Servicer's responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor having the
characteristics set forth in Section 8.02 and which shall succeed to all rights
and assume all of the responsibilities, duties and liabilities of the Servicer
under this Agreement prior to the termination of Servicer's responsibilities,
duties and liabilities under this Agreement. In connection with such appointment
and assumption, the Owner may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree. In the event that the Servicer's duties, responsibilities and liabilities
under this Agreement should be terminated pursuant to the aforementioned
sections, the Servicer shall discharge such duties and responsibilities during
the period from the date it acquires knowledge of such termination until the
effective date thereof with the same degree of diligence and prudence which it
is obligated to exercise under this Agreement, and shall take no action
whatsoever that might impair or prejudice the rights or financial condition of
its successor. The resignation or removal of the Servicer pursuant to the
aforementioned sections shall not become effective until a successor shall be
appointed pursuant to this Section 12.01 and shall in no event relieve the
Servicer of the representations and warranties made pursuant to Section 3.01 and
the remedies available to the Owner under Sections 3.02 and 8.01, it being
understood and agreed that the provisions of such Sections 3.01, 3.02 and 8.01
shall be applicable to the Servicer notwithstanding any such sale, assignment,
resignation or termination of the Servicer, or the termination of this
Agreement.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Servicer and to the Owner an instrument accepting
such appointment, wherein the successor shall make the representations and
warranties set forth in Section 3.01, whereupon such successor shall become
fully vested with all the rights, powers, duties, responsibilities,
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obligations and liabilities of the Servicer, with like effect as if originally
named as a party to this Agreement. Any termination or resignation of the
Servicer or termination of this Agreement pursuant to Section 8.04, 10.01, 11.01
or 11.02 shall not affect any claims that any Owner may have against the
Servicer arising out of the Servicer's actions or failure to act prior to any
such termination or resignation.
The Servicer shall deliver promptly to the successor servicer the
funds in the Custodial Account and Escrow Account and all Mortgage Files and
related documents and statements held by it hereunder and the Servicer shall
account for all funds and shall execute and deliver such instruments and do such
other things as may reasonably be required to more fully and definitively vest
in the successor all such rights, powers, duties, responsibilities, obligations
and liabilities of the Servicer.
Upon a successor's acceptance of appointment as such, the Servicer
shall notify by mail the Owner of such appointment in accordance with the
procedures set forth in Section 12.05.
Section 12.02 Amendment. This Agreement may be amended from time to
time by written agreement signed by the Servicer and the Owner.
Section 12.03 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Each of the Servicer and the Owner hereby knowingly, voluntarily and
intentionally waives any and all rights it may have to a trial by jury in
respect or any litigation based on, or arising out of, under, or in connection
with, this Agreement, or any other documents and instruments executed in
connection herewith, or any course of conduct, course of dealing, statements
(whether oral or written), or actions of the Servicer or the Owner.
Section 12.04 Duration of Agreement. This Agreement shall continue
in existence and effect until terminated as herein provided. This Agreement
shall continue notwithstanding transfers of the Mortgage Loans by the Owner.
Section 12.05 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, postage prepaid, addressed
as follows:
(i) if to the Servicer with respect to servicing and investor
reporting issues:
▇▇▇▇▇ Fargo Bank, N.A.
1 Home ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, MAC X2302-033
Fax: 515/▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇ Fargo Bank, N.A.
1 Home Campus
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel MAC X2401-06T
or such other address as may hereafter be furnished to the Owner
in writing by the Servicer;
(ii) if to Owner:
▇▇▇▇▇▇▇ Sachs Mortgage Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇; Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ Sachs Mortgage Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇; Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished to the Servicer
in writing by the Owner.
Section 12.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 12.07 Relationship of Parties. Nothing herein contained
shall be deemed or construed to create a partnership or joint venture between
the parties hereto and the services of the Servicer shall be rendered as an
independent contractor and not as agent for the Owner.
Section 12.08 Execution; Successors and Assigns. This Agreement may
be executed in one or more counterparts and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed to be an
original; such counterparts, together, shall constitute one and the same
agreement. Subject to Section 8.04, this Agreement shall inure to the benefit of
and be binding upon, and shall be enforceable by, the Servicer and the Owner and
their respective successors and assigns, including without limitation, any
trustee or master servicer appointed by the Owner with respect any Whole
Transfer or Securitization Transaction.
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Section 12.09 Recordation of Assignments of Mortgage. To the extent
permitted by applicable law, as to each Mortgage Loan which is not a MERS
Mortgage Loan, each of the Assignments of Mortgage is subject to recordation in
all appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected at the Owner's expense in the event recordation
is either necessary under applicable law or requested by the Owner at its sole
option.
Section 12.10 Assignment by Owner. The Owner shall have the right,
without the consent of the Servicer to assign, in whole or in part, its interest
under this Agreement with respect to some or all of the Mortgage Loans, and
designate any person to exercise any rights of the Owner hereunder, by executing
an Assignment and Assumption Agreement substantially in the form attached as
Exhibit B, and the assignee or designee shall accede to the rights and
obligations hereunder of the Owner with respect to such Mortgage Loans. All
references to the Owner in this Agreement shall be deemed to include its
assignee or designee.
Section 12.11 Solicitation of Mortgagor. Neither party shall, after
the Sale Date, take any action to solicit the refinancing of any Mortgage Loan.
It is understood and agreed that neither (i) promotions undertaken by either
party or any affiliate of either party which are directed to the general public
at large, including, without limitation, mass mailings based upon commercially
acquired mailing lists, newspaper, radio, television advertisements nor (ii)
serving the refinancing needs of a Mortgagor who, without solicitation, contacts
either party in connection with the refinance of such Mortgage or Mortgage Loan,
shall constitute solicitation under this Section.
Section 12.12 Further Agreements. The Owner and the Servicer each
agree to execute and deliver to the other such additional documents, instruments
or agreements as may be necessary or appropriate to effectuate the purposes of
this Agreement.
Section 12.13 Conflicts. If any conflicting terms shall exist
between this Agreement, the Purchase Agreement, and any Commitment Letter, the
terms and conditions of the Commitment Letter shall govern over all other
documents; the Purchase Agreement shall govern over this Agreement.
Section 12.14 Third Party Beneficiaries. For purposes of Sections
4.25, 6.04, 6.05, 6.06 and 9.01 and any related provisions thereto, each Master
Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereof as if it were a direct party to
this Agreement.
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IN WITNESS WHEREOF, the Servicer and the Owner have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
▇▇▇▇▇▇▇ SACHS MORTGAGE COMPANY ▇▇▇▇▇ FARGO BANK, N.A.
Owner Servicer
By: ▇▇▇▇▇▇▇ Sachs Real Estate
Funding Corp., its General Partner
By:_______________________________ By:___________________________
Name: Name:
Title: Title:
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of _______________, 20___ before me, a Notary
Public in and for said State, personally appeared______________, known to me to
be [Vice] President of ▇▇▇▇▇ Fargo Bank, N.A., the national banking association
that executed the within instrument and also known to me to be the person who
executed it on behalf of said bank, and acknowledged to me that such bank
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
[SEAL]
My commission expires:
---------------------------------------
STATE OF )
) ss.:
COUNTY OF )
On the _____ day of _______________, 20___ before me, a Notary
Public in and for said State, personally appeared
_____________________________________, known to me to be the
______________________________ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Funding Corp., the
general partner of ▇▇▇▇▇▇▇ Sachs Mortgage Company, the partnership that executed
the within instrument and also known to me to be the person who executed it on
behalf of said partnership, and acknowledged to me that such partnership
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
[SEAL]
My commission expires:
---------------------------------------
EXHIBIT A
FORM ACKNOWLEDGMENT AGREEMENT
THIS ACKNOWLEDGMENT AGREEMENT, dated as of _____________, (the
"Acknowledgement Agreement"), between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, ("Owner"),
and ▇▇▇▇▇ Fargo Bank, N.A., ("Servicer"), (together, the "Parties").
W I T N E S S E T H:
WHEREAS, Owner has purchased certain mortgage loans on a servicing
released basis identified on Schedule I attached hereto, (the "Mortgage Loans").
WHEREAS, the Owner desires to retain Servicer to service and provide
management and disposition services for the Mortgage Loans on behalf of the
Owner pursuant to the terms of that certain Servicing Agreement by and between
the Owner and the Servicer dated as June 30, 2006 (the " Servicing Agreement");
NOW THEREFORE, for and in consideration of the mutual premises set
forth herein and other good and valuable consideration the receipt and
sufficiency of which hereby are acknowledged, and of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. Unless otherwise amended by this Acknowledgment Agreement, all
provisions of the Servicing Agreement shall apply to the servicing of the
Mortgage Loans.
2. The Servicing Fee Rate with respect to the Mortgage Loans shall
be [__]%
3. Capitalized terms not otherwise defined herein shall have the
meanings assigned under the Flow Subservicing Agreement.
4. This Agreement is entered into in the State of New York. Its
construction and rights, remedies, and obligations arising by, under, through,
or on account of it will be governed by the laws of the State of New York
excluding its conflict of laws rules and will be deemed performable in the State
of New York.
5. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
[SIGNATURES APPEAR ON NEXT PAGE]
A-1
IN WITNESS WHEREOF, the parties hereto have caused this
Acknowledgment Agreement to be duly executed on their behalf by the undersigned,
duly authorized, as of the day and year first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY
Owner
By: ▇▇▇▇▇▇▇ Sachs Real Estate
Funding Corp., its General Partner
By:____________________________________
Name:
Title:
▇▇▇▇▇ FARGO BANK, N.A.
Servicer
By:____________________________________
Name:
Title:
A-2
Schedule I
----------
A-I-1
EXHIBIT B
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
____________, 20__
ASSIGNMENT AND ASSUMPTION, dated ___________________, 20__ among
_________________, a _________________ corporation having an office at
_________________ ("Assignor") and _________________, having an office at
_________________ ("Assignee") and ▇▇▇▇▇ Fargo Bank, N.A. (the "Servicer"),
having an ▇▇▇▇▇▇ ▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇:
For and in consideration of the sum of one dollar ($1.00) and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. The Assignor hereby grants, transfers and assigns to Assignee all
of the right, title and interest of Assignor, as Owner, in, to and under that
certain Servicing Agreement, (the "Servicing Agreement"), dated as of
_________________, by and between _________________ (the "Owner"), and
_________________ (the "Servicer"), and the Mortgage Loans delivered thereunder
by the Servicer to the Assignor, and that certain Custodial Agreement, (the
"Custodial Agreement"), dated as of _________________, by and among the
Servicer, the Owner and _________________ (the "Custodian").
2. The Assignor warrants and represents to, and covenants with, the
Assignee that:
(a) The Assignor is the lawful owner of the Mortgage Loans
with the full right to transfer the Mortgage Loans free from any and all
claims and encumbrances whatsoever;
(b) The Assignor has not received notice of, and has no
knowledge of, any offsets, counterclaims or other defenses available to
the Servicer with respect to the Servicing Agreement or the Mortgage
Loans;
(c) The Assignor has not waived or agreed to any waiver under,
or agreed to any amendment or other modification of, the Servicing
Agreement, the Custodial Agreement or the Mortgage Loans, including
without limitation the transfer of the servicing obligations under the
Servicing Agreement. The Assignor has no knowledge of, and has not
received notice of, any waivers under or amendments or other modifications
of, or assignments of rights or obligations under, the Servicing Agreement
or the Mortgage Loans; and
(d) Neither the Assignor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage
Loans, any interest in the Mortgage Loans or any other similar security
to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Mortgage Loans, any interest in the Mortgage Loans or
any other similar security from, or otherwise approached or negotiated
with respect to the Mortgage Loans, any interest in the
Mortgage Loans or any other similar security with, any person in any
manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action which would constitute a
distribution of the Mortgage Loans under the Securities Act of 1933 (the
"33 Act") or which would render the disposition of the Mortgage Loans a
violation of Section 5 of the 33 Act or require registration pursuant
thereto.
3. That Assignee warrants and represent to, and covenants with, the
Assignor and the Servicer pursuant to Section 12.10 of the Servicing Agreement
that:
(a) The Assignee agrees to be bound, as Owner, by all of the terms,
covenants and conditions of the Servicing Agreement, the Mortgage Loans
and the Custodial Agreement, and from and after the date hereof, the
Assignee assumes for the benefit of each of the Servicer and the Assignor
all of the Assignor's obligations as purchaser thereunder;
(b) The Assignee understands that the Mortgage Loans have not been
registered under the 33 Act or the securities laws of any state;
(c) The purchase price being paid by the Assignee for the Mortgage
Loans are in excess of $250,000.00 and will be paid by cash remittance of
the full purchase price within 60 days of the sale;
(d) The Assignee is acquiring the Mortgage Loans for investment for
its own account only and not for any other person. In this connection,
neither the Assignee nor any person authorized to act therefor has offered
to sell the Mortgage Loans by means of any general advertising or general
solicitation within the meaning of Rule 502(c) of US Securities and
Exchange Commission Regulation D, promulgated under the 1933 Act;
(e) The Assignee considers itself a substantial sophisticated
institutional investor having such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks
of investment in the Mortgage Loans;
(f) The Assignee has been furnished with all information regarding
the Mortgage Loans that it has requested from the Assignor or the
Servicer;
(g) Neither the Assignee nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage
Loans, any interest in the Mortgage Loans or any other similar security
to, or solicited any offer to buy or accepted a transfer, pledge or other
disposition of the Mortgage Loans, any interest in the Mortgage Loans or
any other similar security from, or otherwise approached or negotiated
with respect to the Mortgage Loans, any interest in the Mortgage Loans or
any other similar security with, any person in any manner which would
constitute a distribution of the Mortgage Loans under the 33 Act or which
would render the disposition of the Mortgage Loans a violation of Section
5 of the 33 Act or require
B-2
registration pursuant thereto, nor will it act, nor has it authorized or
will it authorize any person to act, in such manner with respect to the
Mortgage Loans; and
(h) Either (1) the Assignee is not an employee benefit plan ("Plan")
within the meaning of section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or a plan (also "Plan") within
the meaning of section 4975(e)(1) of the Internal Revenue Code of 1986
("Code"), and the Assignee is not directly or indirectly purchasing the
Mortgage Loans on behalf of, investment manager of, as named fiduciary of,
as Trustee of, or with assets of, a Plan; or (2) the Assignee's purchase
of the Mortgage Loans will not result in a prohibited transaction under
section 406 of ERISA or section 4975 of the Code.
(i) The Assignee's address for purposes of all notices and
correspondence related to the Mortgage Loans and the Servicing Agreements
is:
--------------------------
--------------------------
--------------------------
Attention: _________________
The Assignee's wire transfer instructions for purposes of all
remittances and payments related to the Mortgage Loans and the Servicing
Agreement is:
--------------------------
--------------------------
--------------------------
Attention: _________________
4. From and after the date hereof, the Servicer shall note the
transfer of the Mortgage Loans to the Assignee in its books and records, the
Servicer shall recognize the Assignee as the owner of the Mortgage Loans and the
Servicer shall service the Mortgage Loans for the benefit of the Assignee
pursuant to the Servicing Agreement, the terms of which are incorporated herein
by reference. It is the intention of the Assignor, the Servicer and the Assignee
that the Servicing Agreement shall be binding upon and inure to the benefit of
the Servicer and the Assignee and their respective successors and assigns.
[Signatures Follow]
B-3
IN WITNESS WHEREOF, the parties have caused this Assignment,
Assumption and Recognition Agreement to be executed by their duly authorized
officers as of the date first above written.
------------------------------------- -------------------------------------
Assignor Assignee
By:____________________________________ By:____________________________________
Name:_______________________________ Name:_______________________________
Title:______________________________ Title:______________________________
Its:________________________________ Its:________________________________
Tax Payer Identification No.:_______ Tax Payer Identification No.:_______
▇▇▇▇▇ FARGO BANK, N.A.
By:____________________________________
Name:_______________________________
Title:______________________________
Its:________________________________
▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇
▇-▇
▇▇▇▇▇▇▇ ▇
RESERVED
D-1
EXHIBIT E
FORMS OF CUSTODIAL ACCOUNT CERTIFICATION
CUSTODIAL ACCOUNT CERTIFICATION
________________, 20__
▇▇▇▇▇ Fargo Bank, N.A. hereby certifies that it has established
the account described below as a Custodial Account pursuant to Section 4.04
of the Servicing Agreement, dated as of ____, 20___.
Title of Account: ▇▇▇▇▇ Fargo Bank, N.A. in trust for the Owner
and/or subsequent purchasers of Mortgage Loans
- P & I
Address of office or branch
of the Servicer at which
Account is maintained: ___________________________________________
___________________________________________
___________________________________________
▇▇▇▇▇ FARGO BANK, N.A.
Servicer
By:____________________________________
Name:_______________________________
Title:______________________________
E-1
EXHIBIT F
FORMS OF ESCROW ACCOUNT CERTIFICATION
ESCROW ACCOUNT CERTIFICATION
______________________, 20___
▇▇▇▇▇ Fargo Bank, N.A. hereby certifies that it has established
the account described below as an Escrow Account pursuant to Section 4.06 of
the Servicing Agreement, dated as of ______________, 20____.
Title of Account: ▇▇▇▇▇ Fargo Bank, N.A. in trust for the Owner
and/or subsequent purchasers of Mortgage Loans,
and various Mortgagors - T & I
Address of office or branch
of the Servicer at which
Account is maintained: _____________________________________________
___________________________________________
___________________________________________
▇▇▇▇▇ FARGO BANK, N.A.
Servicer
By:____________________________________
Name:
Title:
F-1
EXHIBIT G
FORM OF POWER OF ATTORNEY
When Recorded Mail To:
_____________________________________________________ Space above this line for
Recorders Use
LIMITED POWER OF ATTORNEY
Name of Servicer (hereinafter called "Owner") hereby appoints ▇▇▇▇▇ Fargo Bank,
N.A. (hereinafter called "Servicer"), as its true and lawful attorney-in-fact to
act in the name, place and stead of Owner for the purposes set forth below. This
limited power of attorney is given pursuant to a certain Servicing Agreement and
solely with respect to the assets serviced pursuant to such agreement by and
between Owner and Servicer dated Date of Agreement, to which reference is made
for the definition of all capitalized terms herein.
The said attorneys-in-fact, and said person designated by the Servicer, as the
attorney-in-fact, is hereby authorized, and empowered, as follows:
1. To execute, acknowledge, seal and deliver deed of trust/mortgage
note endorsements, lost note affidavits, assignments of deed of
trust/mortgage and other recorded documents,
satisfactions/releases/reconveyances of deed of trust/mortgage,
subordinations and modifications, tax authority notifications and
declarations, deeds, bills of sale, and other instruments of sale,
conveyance and transfer, appropriately completed, with all ordinary
or necessary endorsements, acknowledgements, affidavits, and
supporting documents as may be necessary or appropriate to effect
its execution, delivery, conveyance, recordation or filing.
2. To execute and deliver insurance filings and claims, affidavits of
debt, substitutions of trustee, substitutions of counsel,
non-military affidavits, notices of rescission, foreclosure deeds,
transfer tax affidavits, affidavits of merit, verifications of
complaints, notices to quit, bankruptcy declarations for the purpose
of filing motions to lift stays, and other documents or notice
filings on
G-1
behalf of Seller in connection with insurance, foreclosure,
bankruptcy and eviction actions.
3. To endorse any checks or other instruments received by Servicer with
respect to assets serviced pursuant to the Servicing Agreement and
made payable to Owner.
Witness: Name:
------------------------------------ ------------------------------------
Name: Name:
Title: Title:
STATE OF )
) ss.:
COUNTY OF )
Before me, ______________________, a Notary Public in and for the
jurisdiction aforesaid, on this _____ day of ____________________, _______,
personally appeared ___________________________, who is personally known to me
(or sufficiently proven) to be a __________________________________ of
_______________________________ and the person who executed the foregoing
instrument by virtue of the authority vested in him/her and he/she did
acknowledge the signing of the foregoing instrument to be his/her free and
voluntary act and deed as a _________________________________ for the uses,
purposes and consideration therein set forth.
Witness my hand and official seal this _____ day of ______________,
_______.
-----------------------------------
Notary Public
[SEAL]
My commission expires:
---------------------------------------
G-2
EXHIBIT H
IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company][Name
of Subservicer] shall address, as a minimum, the criteria identified below as
"Applicable Servicing Criteria"
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Applicable
Servicing Inapplicable
Reg AB Reference Servicing Criteria Criteria Servicing Criteria
-----------------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or X
other triggers and events of default in accordance with the
transaction agreements.
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1122(d)(1)(ii) If any material servicing activities are outsourced to third X
parties, policies and procedures are instituted to monitor the third
party's performance and compliance with such servicing activities.
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1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up X
servicer for the mortgage loans are maintained.
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1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the X
party participating in the servicing function throughout the
reporting period in the amount of coverage required by and otherwise
in accordance with the terms of the transaction agreements.
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Cash Collection and Administration
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1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate X
custodial bank accounts and related bank clearing accounts no more
than two business days following receipt, or such other number of
days specified in the transaction agreements.
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1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to X
an investor are made only by authorized personnel.
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1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or X
distributions, and any interest or other fees charged for such
advances, are made, reviewed and approved as specified in the
transaction agreements.
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1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve X
accounts or accounts established as a form of overcollateralization,
are separately maintained (e.g., with respect to commingling of
cash) as set forth in the transaction agreements.
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1122(d)(2)(v) Each custodial account is maintained at a federally insured X
depository institution as set forth in the transaction agreements.
For purposes of this criterion, "federally insured depository
institution" with respect to a foreign financial institution means a
foreign financial institution that meets the requirements of Rule
13k-1(b)(1) of the Securities Exchange Act.
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1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized X
access.
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1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed X
securities related bank accounts, including custodial accounts and
related bank clearing accounts. These reconciliations are (A)
mathematically accurate; (B) prepared
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H-1
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Applicable
Servicing Inapplicable
Reg AB Reference Servicing Criteria Criteria Servicing Criteria
-----------------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
-----------------------------------------------------------------------------------------------------------------------------------
within 30 calendar days after the bank statement cutoff date, or
such other number of days specified in the transaction agreements;
(C) reviewed and approved by someone other than the person who
prepared the reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are resolved within 90
calendar days of their original identification, or such other
number of days specified in the transaction agreements.
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Investor Remittances and Reporting
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1122(d)(3)(i) Reports to investors, including those to be filed with the X
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically,
such reports (A) are prepared in accordance with timeframes and
other terms set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms specified in the
transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with investors'
or the trustee's records as to the total unpaid principal balance
and number of mortgage loans serviced by the Servicer.
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1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance X
with timeframes, distribution priority and other terms set forth in
the transaction agreements.
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1122(d)(3)(iii) Disbursements made to an investor are posted within two business X
days to the Servicer's investor records, or such other number of
days specified in the transaction agreements.
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1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with X
cancelled checks, or other form of payment, or custodial bank
statements.
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Pool Asset Administration
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1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required X
by the transaction agreements or related mortgage loan documents.
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1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by X
the transaction agreements
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1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, X
reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
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1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in X
accordance with the related mortgage loan documents are posted to
the Servicer's obligor records maintained no more than two business
days after receipt, or such other number of days specified in the
transaction agreements, and allocated to principal, interest or
other items (e.g., escrow) in accordance with the related mortgage
loan documents.
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1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the X
Servicer's records with respect to an obligor's unpaid principal
balance.
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1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage X
loans (e.g., loan modifications or re-agings) are made, reviewed and
approved by authorized personnel in accordance with the transaction
agreements and related pool asset
-----------------------------------------------------------------------------------------------------------------------------------
H-2
-----------------------------------------------------------------------------------------------------------------------------------
Applicable
Servicing Inapplicable
Reg AB Reference Servicing Criteria Criteria Servicing Criteria
-----------------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
-----------------------------------------------------------------------------------------------------------------------------------
documents.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, X
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and concluded
in accordance with the timeframes or other requirements established
by the transaction agreements.
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1122(d)(4)(viii) Records documenting collection efforts are maintained during the X
period a mortgage loan is delinquent in accordance with the
transaction agreements. Such records are maintained on at least a
monthly basis, or such other period specified in the transaction
agreements, and describe the entity's activities in monitoring
delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is
deemed temporary (e.g., illness or unemployment).
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1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans X
with variable rates are computed based on the related mortgage loan
documents.
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1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow X
accounts): (A) such funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at least an annual basis, or
such other period specified in the transaction agreements; (B)
interest on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related mortgage loans, or such other
number of days specified in the transaction agreements.
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1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance X
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the
servicer at least 30 calendar days prior to these dates, or such
other number of days specified in the transaction agreements.
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1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made X
on behalf of an obligor are paid from the Servicer's funds and not
charged to the obligor, unless the late payment was due to the
obligor's error or omission.
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1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two X
business days to the obligor's records maintained by the servicer,
or such other number of days specified in the transaction
agreements.
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1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized X
and recorded in accordance with the transaction agreements.
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1122(d)(4)(xv) Any external enhancement or other support, identified in Item X
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained
as set forth in the transaction agreements.
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H-3
EXHIBIT I
SARBANES CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the "Agreement"), among
[IDENTIFY PARTIES]
I, ________________________________, the _______________________ of
[Name of Servicer] (the "Servicer"), certify to [the Owner], [the Depositor],
and the [Master Servicer] [Securities Administrator] [Trustee], and their
officers, with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the servicer compliance statement of the Servicer
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under Securities
Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122 of
Regulation AB (the "Servicing Assessment"), the registered public accounting
firm's attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the "Attestation
Report"), and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans by the Servicer
during 200[ ] that were delivered by the Servicer to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee] pursuant to the Agreement
(collectively, the "Servicer Servicing Information");
2. Based on my knowledge, the Servicer Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Servicer Servicing Information;
3. Based on my knowledge, all of the Servicer Servicing Information
required to be provided by the Servicer under the Agreement has been provided to
the [Depositor] [Master Servicer] [Securities Administrator] [Trustee];
4. I am responsible for reviewing the activities performed by the
Servicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Servicing Assessment or the Attestation Report,
the Servicer has fulfilled its obligations under the Agreement; and
5. The Compliance Statement required to be delivered by the Servicer
pursuant to the Agreement, and the Servicing Assessment and Attestation Report
required to be provided by the Servicer and by each Subservicer ad Subcontractor
pursuant to the Agreement have been provided to the [Depositor] [Master
Servicer]. Any material instances of noncompliance described in such reports
have been disclosed to the [Depositor] [Master
I-1
Servicer]. Any material instance of noncompliance with the Servicing Criteria
has been disclosed in such reports.
Date:
By:____________________________________
Name:_______________________________
Title:______________________________
I-2
EXHIBIT R
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Deutsche Bank National Trust Company
("Deutsche Bank"), a national banking association organized and existing under
the laws of the United States, having its principal place of business at ▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, as Trustee (the
"Trustee") pursuant to that certain Trust Agreement dated as of August 1, 2006
(the "Agreement") among GS Mortgage Securities Corp., as depositor (the
"Depositor"), Deutsche Bank, as Trustee and as a custodian, JPMorgan Chase
Bank, National Association, as a custodian, U.S. Bank National Association, as
a custodian, and ▇▇▇▇▇ Fargo Bank, National Association ("▇▇▇▇▇ Fargo"), as
securities administrator (in such capacity, the "Securities Administrator")
hereby constitutes and appoints the Servicer, by and through the Servicer's
officers, the Trustee's true and lawful Attorney-in-Fact, in the Trustee's
name, place and stead and for the Trustee's benefit, in connection with all
mortgage loans serviced by the Servicer pursuant to the Servicing Agreement
dated as of June 30, 2006 (the "Servicing Agreement") between ▇▇▇▇▇ Fargo and
▇▇▇▇▇▇▇ Sachs Mortgage Company, solely for the purpose of performing such acts
and executing such documents in the name of the Trustee necessary and
appropriate to effectuate the following enumerated transactions in respect of
any of the mortgages or deeds of trust (the "Mortgages" and the "Deeds of
Trust" respectively) and promissory notes secured thereby (the "Mortgage
Notes") for which the undersigned is acting as Trustee for various
certificateholders (whether the undersigned is named therein as mortgagee or
beneficiary or has become mortgagee by virtue of endorsement of the Mortgage
Note secured by any such Mortgage or Deed of Trust) and for which _________ is
acting as the Servicer.
This Appointment shall apply only to the following enumerated transactions and
nothing herein or in the Servicing Agreement shall be construed to the
contrary:
1 The modification or re-recording of a Mortgage or Deed of Trust,
where said modification or re-recording is solely for the
purpose of correcting the Mortgage or Deed of Trust to conform
same to the original intent of the parties thereto or to correct
title errors discovered after such title insurance was issued;
provided that (i) said modification or re-recording, in either
instance, does not adversely affect the lien of the Mortgage or
Deed of Trust as insured and (ii) otherwise conforms to the
provisions of the Servicing Agreement.
2 The subordination of the lien of a Mortgage or Deed of Trust to
an easement in favor of a public utility company of a government
agency or unit with powers of eminent domain; this section shall
include, without limitation, the execution of partial
satisfactions/releases, partial reconveyances or the execution
or requests to trustees to accomplish same.
3 The conveyance of the properties to the mortgage insurer, or the
closing of the title to the property to be acquired as real
estate owned, or conveyance of title to real estate owned.
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4 The completion of loan assumption agreements.
5 The full satisfaction/release of a Mortgage or Deed of Trust or
full conveyance upon payment and discharge of all sums secured
thereby, including, without limitation, cancellation of the
related Mortgage Note.
6 The assignment of any Mortgage or Deed of Trust and the related
Mortgage Note, in connection with the repurchase of the mortgage
loan secured and evidenced thereby.
7 The full assignment of a Mortgage or Deed of Trust upon payment
and discharge of all sums secured thereby in conjunction with
the refinancing thereof, including, without limitation, the
assignment of the related Mortgage Note.
8 With respect to a Mortgage or Deed of Trust, the foreclosure,
the taking of a deed in lieu of foreclosure, or the completion
of judicial or non-judicial foreclosure or termination,
cancellation or rescission of any such foreclosure, including,
without limitation, any and all of the following acts:
a. the substitution of trustee(s) serving under a Deed of
Trust, in accordance with state law and the Deed of Trust;
b. the preparation and issuance of statements of breach or
non-performance;
c. the preparation and filing of notices of default and/or
notices of sale;
d. the cancellation/rescission of notices of default and/or
notices of sale;
e. the taking of deed in lieu of foreclosure; and
f. the preparation and execution of such other documents and
performance of such other actions as may be necessary under
the terms of the Mortgage, Deed of Trust or state law to
expeditiously complete said transactions in paragraphs 8.a.
through 8.e. above.
9 With respect to the sale of property acquired through a
foreclosure or deed-in lieu of foreclosure, including, without
limitation, the execution of the following documentation:
a. listing agreements;
b. purchase and sale agreements;
▇. ▇▇▇▇▇/warranty/quit claim deeds or any other deed causing
the transfer of title of the property to a party contracted
to purchase same;
d. escrow instructions; and
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e. any and all documents necessary to effect the transfer of
property.
10 The modification or amendment of escrow agreements established
for repairs to the mortgaged property or reserves for
replacement of personal property.
The undersigned gives said Attorney-in-Fact full power and authority to
execute such instruments and to do and perform all and every act and thing
necessary and proper to carry into effect the power or powers granted by or
under this Limited Power of Attorney as fully as the undersigned might or
could do, and hereby does ratify and confirm to all that said Attorney-in-Fact
shall be effective as of _________.
This appointment is to be construed and interpreted as a limited power of
attorney. The enumeration of specific items, rights, acts or powers herein is
not intended to, nor does it give rise to, and it is not to be construed as a
general power of attorney.
Nothing contained herein shall (i) limit in any manner any indemnification
provided by the Servicer to the Trustee under the Servicing Agreement, or (ii)
be construed to grant the Servicer the power to initiate or defend any suit,
litigation or proceeding in the name of Deutsche Bank National Trust Company
except as specifically provided for herein. If the Servicer receives any
notice of suit, litigation or proceeding in the name of Deutsche Bank National
Trust Company, then the Servicer shall promptly forward a copy of same to the
Trustee.
This limited power of attorney is not intended to extend the powers granted to
the Servicer under the Servicing Agreement or to allow the Servicer to take
any action with respect to Mortgages, Deeds of Trust or Mortgage Notes not
authorized by the Servicing Agreement.
The Servicer hereby agrees to indemnify and hold the Trustee and its
directors, officers, employees and agents harmless from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
incurred by reason or result of or in connection with the exercise by the
Servicer of the powers granted to it hereunder. The foregoing indemnity shall
survive the termination of this Limited Power of Attorney and the Servicing
Agreement or the earlier resignation or removal of the Trustee under the
Agreement.
This Limited Power of Attorney is entered into and shall be governed by the
laws of the State of New York, without regard to conflicts of law principles
of such state.
Third parties without actual notice may rely upon the exercise of the power
granted under this Limited Power of Attorney; and may be satisfied that this
Limited Power of Attorney shall continue in full force and effect and has not
been revoked unless an instrument of revocation has been made in writing by
the undersigned.
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IN WITNESS WHEREOF, Deutsche Bank National Trust Company, as Trustee has
caused its corporate seal to be hereto affixed and these presents to be signed
and acknowledged in its name and behalf by a duly elected and authorized
signatory this ___________ day of ____________.
Deutsche Bank National Trust Company, as Trustee
By:________________________________________
Name:
Title:
Acknowledged and Agreed
[Insert Name of the Servicer]
By:_________________________
Name:
Title:
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STATE OF CALIFORNIA
COUNTY OF ____________
On ________________, _____, before me, the undersigned, a Notary Public
in and for said state, personally appeared ________________________________ of
Deutsche Bank National Trust Company, as Trustee for [INSERT REFERENCE TO
ISSUANCE], personally known to me to be the person whose name is subscribed to
the within instrument and acknowledged to me that he/she executed that same in
his/her authorized capacity, and that by his/her signature on the instrument
the entity upon behalf of which the person acted and executed the instrument.
WITNESS my hand and official seal.
(SEAL)
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Notary Public, State of California
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