GS MORTGAGE SECURITIES CORP., Depositor, OCWEN LOAN SERVICING, LLC, Servicer, Custodian, and DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee and Custodian AMENDMENT NO. 1 dated as of OCTOBER 19, 2007 TO THE POOLING AND SERVICING AGREEMENT DATED AS OF...
EXHIBIT
4.1
GS
MORTGAGE SECURITIES CORP.,
Depositor,
OCWEN
LOAN SERVICING, LLC,
Servicer,
U.S.
BANK
NATIONAL ASSOCIATION,
Custodian,
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
and Custodian
__________________________________
AMENDMENT
NO. 1 dated as of
OCTOBER
19, 2007 TO THE
DATED
AS
OF AUGUST 1, 2006
__________________________________
MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES
2006-S5
AMENDMENT
NO. 1, dated as of October 19, 2007 (this “Amendment”), among GS MORTGAGE
SECURITIES CORP., a Delaware corporation (the “Depositor”), OCWEN LOAN
SERVICING, LLC, a Delaware limited liability company (“Ocwen” or the
“Servicer”), U.S. BANK NATIONAL ASSOCIATION, a national banking association
(“U.S. Bank” and the “Custodian”), and DEUTSCHE BANK NATIONAL TRUST COMPANY, a
national banking association, as trustee (the “Trustee”) and as a custodian in
connection with the Pooling and Servicing Agreement, dated as of August 1,
2006
(the “Agreement”), among the Depositor, the Servicer, the Custodians and the
Trustee. Capitalized terms not defined herein have the meanings
assigned to them in the Agreement.
1. This
Amendment is effected pursuant to the first paragraph of Section 10.01 of the
Agreement.
2. Article
I of the Agreement is hereby amended by deleting in its entirety the definition
of “Released Loan” and replacing it with the following:
Released
Loan: Any Charged Off Loan that is released by Ocwen to the Class X-1
Certificateholder pursuant to Section 3.15(b). Any Released Loan will no longer
be an asset of any REMIC or the Trust Fund; provided that in accordance with
the
provisions of Section 3.15(b)(ii), any Repurchase Price paid by Fremont, Impac
Funding, NC Capital, Meritage, Residential Funding or the Purchaser, as
applicable, with respect to a Released Loan shall be included in Available
Funds
and treated as a Subsequent Recovery.
3. Article
I of the Agreement is hereby amended by deleting in its entirety the definition
of “Repurchase Price” and replacing it with the following:
Repurchase
Price: With respect to any Mortgage Loan (including any Released Loan
in accordance with Section 3.15(b)(ii) hereof) repurchased by the Purchaser,
an
amount equal to the sum of (i) the unpaid principal balance of such
Mortgage Loan as of the date of repurchase, (ii) interest on such unpaid
principal balance of such Mortgage Loan at the Mortgage Interest Rate from
the
last date through which interest has been paid and distributed to the Trustee
to
the date of repurchase, (iii) all unreimbursed Servicing Advances,
(iv) (a) any costs and damages incurred by the Trust in connection with any
violation by such Mortgage Loan of any predatory lending law or abusive lending
law, and (v) all expenses incurred by the Servicer, the Trust or the Trustee,
as
the case may be, in respect of a breach or defect, including, without
limitation, expenses arising out of the Trustee’s or Servicer’s enforcement of
the Purchaser’s repurchase obligations, to the extent not included in clause
(iii).
With
respect to any Mortgage Loan (including any Released Loan in accordance with
Section 3.15(b)(ii) hereof) repurchased by Fremont, Impac Funding, NC Capital,
Meritage and Residential Funding, the Repurchase Price as that term is defined
in the related Purchase Agreement.
4. Article
I of the Agreement is hereby amended by deleting in its entirety the definition
of “Subsequent Recovery” and replacing it with the following:
Subsequent
Recoveries: (a) Amounts received with respect to any Liquidated
Mortgage Loan after it has become a Liquidated Mortgage Loan and, in the case
of
a Charged Off Loan, prior to such Liquidated Mortgage Loan becoming a Released
Loan or (b) any Repurchase Price paid by Fremont, Impac Funding, NC Capital,
Meritage, Residential Funding or the Purchaser, as applicable, after a Charged
Off Loan becomes a Released Loan in accordance with Section 3.15(b)(ii)
hereof.
5. Article
II of the Agreement is hereby amended by deleting in its entirety subsection
(h)
of Section 2.03 and replacing it with the following:
(h) In
the event that a Mortgage Loan (including any Released Loan) shall have been
repurchased pursuant to this Agreement, the Fremont Agreements, the Impac
Funding Agreements, the NC Capital Agreements, the Meritage Agreements, the
Residential Funding Agreements or the Representations and Warranties Agreement,
the Repurchase Price thereof shall be deposited in the Collection Account by
the
Servicer pursuant to Section 3.10 on or before the next Remittance Date and
upon such deposit of the Repurchase Price, and receipt of a Request for Release
in the form of Exhibit J hereto, the Custodian or the Trustee, as
applicable, shall release the related Custodial File held for the benefit of
the
Certificateholders to such Person as directed by the Servicer, and the Trustee
shall execute and deliver at such Person’s direction such instruments of
transfer or assignment prepared by such Person, in each case without recourse,
as shall be necessary to transfer title from the Trustee. It is
understood and agreed that the obligation under this Agreement of any Person
to
cure, repurchase or replace any Mortgage Loan as to which a breach has occurred
and is continuing, together with satisfaction of any related indemnification
obligations, shall constitute the sole remedy against such Persons respecting
such breach available to Certificateholders, the Depositor, the Servicer or
the
Trustee on their behalf.
6. Article
III of the Agreement is hereby amended by deleting in its entirety subsection
(b) of Section 3.15 and replacing it with the following:
(b)(i) With
respect to any
Mortgage Loan that is 180 days delinquent, the Servicer shall charge off such
delinquent Mortgage Loan. Once a Mortgage Loan has been charged off,
the Servicer will discontinue making P&I Advances, the Servicer will not be
entitled to any additional servicing compensation in respect of such Charged
Off
Loan and the Charged Off Loan will give rise to a Realized
Loss. Any such Charged Off Loan will be released from the Trust Fund,
will no longer be an asset of any REMIC, and will be transferred to the Class
X-1 Certificateholders, without recourse, and thereafter, subject to clause
(b)(ii) below, (i) the Class X-1 Certificateholder will be entitled to any
amounts subsequently received in respect of any such Released Loan (other than
as set forth in clause (b)(ii) below), (ii) the Class X-1 Certificateholder
may
designate any servicer to service any such Released Loan and (iii) the Class
X-1
Certificateholder may sell any such Released Loan to a third
party. Once a Mortgage Loan is charged off and discharged from the
Trust pursuant to this Section 3.15(b)(i), the Servicer shall not be obligated
to service such Mortgage Loan. The Servicer may cease any collection
efforts with respect to such Mortgage Loan, and statements of account may no
longer be sent to such Mortgagor. The Servicer shall write off each
charged off Mortgage Loan as bad debt.
(ii)
With
respect to any Charged Off Loan that is discharged from the Trust pursuant
to
this Section 3.15(b), in the event that Fremont, Impac Funding, NC Capital,
Meritage, Residential Funding or the Purchaser, as applicable, repurchases
such
Charged Off Loan due to a breach of a representation and warranty made by
Fremont, Impac Funding, NC Capital, Meritage, Residential Funding or the
Purchaser, as applicable, with respect to such Charged Off Loan, or, due to
an
early payment default claim (to the extent such claim is held by the Trust)
with
respect to such Charged Off Loan, the Repurchase Price paid by Fremont, Impac
Funding, NC Capital, Meritage, Residential Funding or the Purchaser, as
applicable, shall be deposited in the Collection Account by the Servicer
pursuant to Section 3.10 on or before the next Remittance Date and included
in
Available Funds as a Subsequent Recovery.
7. Conditions
Precedent to this Amendment: The following conditions precedent to
the effectiveness of this Amendment have been fulfilled:
(a) The
prior
notice of this Amendment required by Section 10.01 of the Agreement has been
given by the Depositor to each of the Rating Agencies, currently Standard &
Poor's, a Division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and ▇▇▇▇▇'▇ Investors
Service, Inc., and the Trustee hereby acknowledges receipt of copies
thereof.
(b) The
opinions of counsel required by Section 10.01 of the Agreement have been
received by the Trustee.
8. This
Amendment is subject to the terms of the Agreement as modified and supplemented
herein. The Agreement continues in full force and effect as modified
herein and provided therein.
The
undersigned have executed this Amendment as of the date hereof.
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GS
MORTGAGE SECURITIES CORP.,
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as
Depositor
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By:
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/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ | |
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Name:
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▇▇▇▇▇▇▇▇ ▇▇▇▇ | |
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Title:
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Vice President | |
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DEUTSCHE
BANK NATIONAL TRUST COMPANY,
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solely
as Trustee and as a custodian
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By:
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/s/ Hang ▇▇▇ | |
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Name:
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Hang ▇▇▇ | |
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Title:
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Authorized Signer | |
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By:
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/s/ ▇▇▇ ▇▇▇▇▇ | |
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Name:
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▇▇▇ ▇▇▇▇▇ | |
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Title:
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Authorized Signer | |
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OCWEN
LOAN SERVICING, LLC,
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as
Servicer
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By:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
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Name:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
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Title:
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Authorized Representative | |
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U.S.
BANK NATIONAL ASSOCIATION,
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as
Custodian
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By:
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/s/ Saah T. Kemayah | |
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Name:
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Saah T. Kemayah | |
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Title:
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Vice President | |
PRIOR
CONSENT HERETO IS HEREBY GIVEN:
▇▇▇▇▇▇▇,
▇▇▇▇▇ & CO., as Holder of
Class
X-1
Certificates representing
a
100.00%
Percentage Interest in such Class
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By:
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/s/ ▇▇▇▇ ▇▇▇▇▇ |
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Name:
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▇▇▇▇ ▇▇▇▇▇ |
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Title:
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Managing Director |