EXHIBIT 4.3
================================================================================
[NAME OF SERVICER],
as Servicer
_____ TRUST SERIES ____-__,
as Issuing Entity
and
[NAME OF INDENTURE TRUSTEE]
as Indenture Trustee
--------------------------
SERVICING AGREEMENT
Dated as of ________ 1, ___
--------------------------
================================================================================
TABLE OF CONTENTS
ARTICLE I
Definitions
Section 1.01 Definitions.............................................................................
Section 1.02 Other Definitional Provisions...........................................................
Section 1.03 Interest Calculations...................................................................
ARTICLE II
Representations and Warranties
Section 2.01 Representations and Warranties Regarding the Servicer...................................
Section 2.02 Representations and Warranties of the Issuing Entity....................................
Section 2.03 Enforcement of Representations and Warranties...........................................
ARTICLE III
Administration and Servicing of Loans
Section 3.01 The Servicer............................................................................
Section 3.02 Collection of Certain Loan Payments.....................................................
Section 3.03 Withdrawals From the Custodial Account..................................................
Section 3.04 Maintenance of Hazard Insurance; Property Protection Expenses...........................
Section 3.05 Modification Agreements.................................................................
Section 3.06 Trust Estate; Related Documents.........................................................
Section 3.07 Realization Upon Defaulted Loans; Loss Mitigation.......................................
Section 3.08 Issuing Entity and Indenture Trustee to Cooperate.......................................
Section 3.09 Servicing Compensation; Payment of Certain Expenses by Servicer.........................
Section 3.10 Annual Statement as to Compliance.......................................................
Section 3.11 Annual Servicing Report.................................................................
Section 3.12 Access to Certain Documentation and Information Regarding the Loans.....................
Section 3.13 Maintenance of Certain Servicing Insurance Policies.....................................
Section 3.14 Information Required by the Internal Revenue Service and Reports of Foreclosures
and Abandonments of Mortgaged Property.................................................
Section 3.15 Optional Purchase of Loans by Servicer..................................................
ARTICLE IV
Servicing Certificate
Section 4.01 Statements to Securityholders...........................................................
Section 4.02 Tax Reporting...........................................................................
ARTICLE V
Payment Account
Section 5.01 Payment Account.........................................................................
ARTICLE VI
The Servicer
Section 6.01 Liability of the Servicer...............................................................
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations of, the Servicer...........
Section 6.03 Limitation on Liability of the Servicer and Others......................................
Section 6.04 Servicer Not to Resign..................................................................
Section 6.05 Delegation of Duties....................................................................
ARTICLE VII
Default
Section 7.01 Servicing Default.......................................................................
Section 7.02 Indenture Trustee to Act; Appointment of Successor......................................
Section 7.03 Notification to Securityholders.........................................................
ARTICLE VIII
Miscellaneous Provisions
Section 8.01 Amendment...............................................................................
Section 8.02 Governing Law...........................................................................
Section 8.03 Notices.................................................................................
Section 8.04 Severability of Provisions..............................................................
Section 8.05 Third-Party Beneficiaries...............................................................
Section 8.06 Counterparts............................................................................
Section 8.07 Effect of Headings and Table of Contents................................................
Section 8.08 Termination Upon Purchase by the Servicer or Liquidation of All Loans; Partial
Redemption.............................................................................
Section 8.09 Certain Matters Affecting the Indenture Trustee.........................................
Section 8.10 Owner Trustee Not Liable for Related Documents..........................................
EXHIBIT A - LOAN SCHEDULE....................................................................................
EXHIBIT B - POWER OF ATTORNEY................................................................................
EXHIBIT C - FORM OF REQUEST FOR RELEASE......................................................................
EXHIBIT D - CERTIFICATE PURSUANT TO SECTION 3.08 ............................................................
EXHIBIT E - SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE...................................
This is a Servicing Agreement, dated as of _________ 1, ____, among
[Name of Servicer] (the "Servicer"), the _____ Trust Series ____-__ (the
"Issuing Entity") and [Name of Indenture Trustee] (the "Indenture Trustee").
W I T N E S S E T H T H A T:
WHEREAS, pursuant to the terms of the Loan Purchase Agreement, [Name of
Sponsor] (in its capacity as Sponsor) will sell to the Depositor the Loans
together with the Related Documents on the Closing Date;
WHEREAS, the Depositor will sell the Loans and all of its rights under
the Loan Purchase Agreement to the Issuing Entity, together with the Related
Documents on the Closing Date;
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuing
Entity will issue and transfer to or at the direction of the Depositor, the
Certificates;
WHEREAS, pursuant to the terms of the Indenture, the Issuing Entity
will issue and transfer to or at the direction of the Depositor, the Notes; and
WHEREAS, pursuant to the terms of this Servicing Agreement, the
Servicer will service the Loans directly or through one or more Subservicers;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.01 Definitions. For all purposes of this Servicing Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in the Definitions contained in Appendix A to the
Indenture dated as of _______________ (the "Indenture"), between ______ Trust
Series ____-__, as issuing entity, and [Name of Indenture Trustee], as indenture
trustee, which is incorporated by reference herein. All other capitalized terms
used herein shall have the meanings specified herein.
Section 1.02 Other Definitional Provisions. (a) All terms defined in
this Servicing Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As used in this Servicing Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Servicing Agreement or in any such certificate or other
document, and accounting terms partly defined in this Servicing Agreement or in
any such certificate or other document, to the extent not defined, shall have
the respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Servicing Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Servicing Agreement or in any such
certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Servicing Agreement shall refer to this Servicing
Agreement as a whole and not to any particular provision of this Servicing
Agreement; Section and Exhibit references contained in this Servicing Agreement
are references to Sections and Exhibits in or to this Servicing Agreement unless
otherwise specified; and the term "including" shall mean "including without
limitation".
(d) The definitions contained in this Servicing Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
Section 1.03 Interest Calculations. All calculations of interest
hereunder that are made in respect of the Stated Principal Balance of a Loan
shall be made in accordance with the Mortgage Note. All calculations of interest
on the Securities (other than the Class A, M-2 and B-1 Notes) shall be made on
the basis of a 30-day month and a year assumed to consist of 360 days.
Calculation of interest on the Class A, M-2 and B-1 Notes shall be made on the
basis of the actual number of days in the Accrual Period and a year assumed to
consist of 360 days. The calculation of the Servicing Fee shall be made on the
basis of a 30-day month and a year assumed to consist of 360 days. All dollar
amounts calculated hereunder shall be rounded to the nearest ▇▇▇▇▇ with one-half
of one ▇▇▇▇▇ being rounded up.
ARTICLE II
Representations and Warranties
Section 2.01 Representations and Warranties Regarding the Servicer. The
Servicer represents and warrants to the Issuing Entity and for the benefit of
the Indenture Trustee, as pledgee of the Loans, as of the Cut-off Date:
(i) The Servicer is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of
_____________ and has the corporate power to own its assets and to
transact the business in which it is currently engaged. The Servicer is
duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such
qualification and in which the failure to so qualify would have a
material adverse effect on the business, properties, assets, or
condition (financial or other) of the Servicer;
(ii) The Servicer has the power and authority to make,
execute, deliver and perform this Servicing Agreement and all of the
transactions contemplated under this Servicing Agreement, and has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Servicing Agreement. When executed and delivered,
this Servicing Agreement will constitute the legal, valid and binding
obligation of the Servicer enforceable in accordance with its terms,
except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights generally and by the availability of equitable remedies;
(iii) The Servicer is not required to obtain the consent of
any other Person or any consent, license, approval or authorization
from, or registration or declaration with, any governmental authority,
bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Servicing Agreement,
except for such consent, license, approval or authorization, or
registration or declaration, as shall have been obtained or filed, as
the case may be;
(iv) The execution and delivery of this Servicing Agreement
and the performance of the transactions contemplated hereby by the
Servicer will not violate any provision of any existing law or
regulation or any order or decree of any court applicable to the
Servicer or any provision of the Certificate of Incorporation of the
Servicer, or constitute a material breach of any mortgage, indenture,
contract or other agreement to which the Servicer is a party or by
which the Servicer may be bound; and
(v) No litigation or administrative proceeding of or before
any court, tribunal or governmental body is currently pending, or to
the knowledge of the Servicer threatened, against the Servicer or any
of its properties or with respect to this Servicing Agreement or the
Securities which in the opinion of the Servicer has a reasonable
likelihood of resulting in a material adverse effect on the
transactions contemplated by this Servicing Agreement.
The foregoing representations and warranties shall survive any
termination of the Servicer hereunder.
Section 2.02 Representations and Warranties of the Issuing Entity. The
Issuing Entity hereby represents and warrants to the Servicer and for the
benefit of the Indenture Trustee, as pledgee of the Loans, as of the Cut-off
Date:
(i) The Issuing Entity is a business trust duly formed and in
good standing under the laws of the State of Delaware and has full
power, authority and legal right to execute and deliver this Servicing
Agreement and to perform its obligations under this Servicing
Agreement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Servicing Agreement;
and
(ii) The execution and delivery by the Issuing Entity of this
Servicing Agreement and the performance by the Issuing Entity of its
obligations under this Servicing Agreement will not violate any
provision of any law or regulation governing the Issuing Entity or any
order, writ, judgment or decree of any court, arbitrator or
governmental authority or agency applicable to the Issuing Entity or
any of its assets. Such execution, delivery, authentication and
performance will not conflict with, or result in a breach or violation
of, any mortgage, deed of trust, lease or other agreement or instrument
to which the Issuing Entity is bound.
Section 2.03 Enforcement of Representations and Warranties. The
Servicer, on behalf of and subject to the direction of the Indenture Trustee, as
pledgee of the Loans, or the Issuing Entity, shall enforce the representations
and warranties of the Sponsor pursuant to the Loan Purchase Agreement. Upon the
discovery by the Sponsor, the Depositor, the Servicer, the Indenture Trustee,
the Issuing Entity, or any Custodian of a breach of any of the representations
and warranties made in the Loan Purchase Agreement, in respect of any Loan which
materially and adversely affects the interests of the Securityholders, the party
discovering such breach or existence shall give prompt written notice to the
other parties. The Servicer shall promptly notify the Sponsor of such breach and
request that, pursuant to the terms of the Loan Purchase Agreement, the Sponsor
either (i) cure such breach in all material respects within 90 days from the
date the Sponsor was notified of such breach or (ii) purchase such Loan from the
Issuing Entity at the price and in the manner set forth in Section 4 of the Loan
Purchase Agreement; provided that the Sponsor shall, subject to compliance with
all the conditions set forth in the Loan Purchase Agreement, have the option to
substitute an Eligible Substitute Loan or Loans for such Loan. In the event that
the Sponsor elects to substitute one or more Eligible Substitute Loans pursuant
to Section 4 of the Loan Purchase Agreement, the Sponsor shall deliver to the
Issuing Entity with respect to such Eligible Substitute Loans, the original
Mortgage Note, the Mortgage, and such other documents and agreements as are
required by the Loan Purchase Agreement. Payments due with respect to Eligible
Substitute Loans in the month of substitution shall not be transferred to the
Issuing Entity and will be retained by the Servicer and remitted by the Servicer
to the Sponsor on the next succeeding Payment Date provided a payment at least
equal to the applicable Monthly Payment has been received by the Issuing Entity
for such month in respect of the Loan to be removed. The Servicer shall amend or
cause to be amended the Loan Schedule to reflect the removal of such Loan and
the substitution of the Eligible Substitute Loans and the Servicer shall
promptly deliver the amended Loan Schedule to the Owner Trustee and the
Indenture Trustee.
It is understood and agreed that the obligation of the Sponsor to cure
such breach or purchase or substitute for such Loan as to which such a breach
has occurred and is continuing shall constitute the sole remedy respecting such
breach available to the Issuing Entity and the Indenture Trustee, as pledgee of
the Loans, against the Sponsor. In connection with the purchase of or
substitution for any such Loan by the Sponsor, the Issuing Entity shall assign
to the Sponsor all of its right, title and interest in respect of the Loan
Purchase Agreement applicable to such Loan. Upon receipt of the Repurchase
Price, or upon completion of such substitution, the Servicer shall notify the
Custodian and then the Custodian shall deliver the Mortgage Files to the
Servicer, together with all relevant endorsements and assignments prepared by
the Servicer which the Indenture Trustee shall execute.
ARTICLE III
Administration and Servicing of Loans
Section 3.01 The Servicer. (a) The Servicer shall service and
administer the Loans in accordance with the terms of this Servicing Agreement,
following such procedures as it would employ in its good faith business judgment
and which are normal and usual in its general mortgage servicing activities, and
shall have full power and authority, acting alone or through a subservicer, to
do any and all things in connection with such servicing and administration which
it may deem necessary or desirable, it being understood, however, that the
Servicer shall at all times remain responsible to the Issuing Entity and the
Indenture Trustee for the performance of its duties and obligations hereunder in
accordance with the terms hereof. Without limiting the generality of the
foregoing, the Servicer shall continue, and is hereby authorized and empowered
by the Issuing Entity and the Indenture Trustee, as pledgee of the Loans, to
execute and deliver, on behalf of itself, the Issuing Entity, the Indenture
Trustee or any of them, any and all instruments of satisfaction or cancellation,
or of partial or full release or discharge, or of consent to modification in
connection with a proposed conveyance, or of assignment of any Mortgage and
Mortgage Note in connection with the repurchase of a Loan and all other
comparable instruments with respect to the Loans and with respect to the
Mortgaged Properties, or with respect to the modification or re-recording of a
Mortgage for the purpose of correcting the Mortgage, the subordination of the
lien of the Mortgage in favor of a public utility company or government agency
or unit with powers of eminent domain, the taking of a deed in lieu of
foreclosure, the commencement, prosecution or completion of judicial or
non-judicial foreclosure, the acquisition of any property acquired by
foreclosure or deed in lieu of foreclosure, or the management, marketing and
conveyance of any property acquired by foreclosure or deed in lieu of
foreclosure. The Issuing Entity, the Indenture Trustee and the Custodian, as
applicable, shall furnish the Servicer with any powers of attorney and other
documents necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder. On the Closing Date, the
Indenture Trustee shall deliver to the Servicer a limited power of attorney
substantially in the form of Exhibit B hereto.
If the Mortgage relating to a Loan did not have a lien senior to the
Loan on the related Mortgaged Property as of the Cut-off Date, then the
Servicer, in such capacity, may not consent to the placing of a lien senior to
that of the Mortgage on the related Mortgaged Property. If the Mortgage relating
to a Loan had a lien senior to the Loan on the related Mortgaged Property as of
the Cut-off Date, then the Servicer, in such capacity, may consent to the
refinancing of the prior senior lien, provided that the following requirements
are met:
(i) (A) the Mortgagor's debt-to-income ratio resulting from
such refinancing is less than the original debt-to-income ratio as set
forth on the Mortgage Loan Schedule; or
(B) the resulting Combined Loan-to-Value Ratio of such Loan is
no higher than the Combined Loan-to-Value Ratio prior to such
refinancing; provided, however, if such refinanced mortgage loan is a
"rate and term" mortgage loan (meaning, the Mortgagor does not receive
any cash from the refinancing), the Combined Loan-to-Value Ratio may
increase to the extent of the reasonable closing costs of such
refinancing;
(ii) the interest rate, or, in the case of an adjustable rate
existing senior lien, the maximum interest rate, for the loan
evidencing the refinanced senior lien is no more than 2.0% higher than
the interest rate or the maximum interest rate, as the case may be, on
the loan evidencing the existing senior lien immediately prior to the
date of such refinancing; provided, however (a) if the loan evidencing
the existing senior lien prior to the date of refinancing has an
adjustable rate and the loan evidencing the refinanced senior lien has
a fixed rate, then the current interest rate on the loan evidencing the
refinanced senior lien may be up to 2.0% higher than the then-current
loan rate of the loan evidencing the existing senior lien and (b) if
the loan evidencing the existing senior lien prior to the date of
refinancing has a fixed rate and the loan evidencing the refinanced
senior lien has an adjustable rate, then the maximum interest rate on
the loan evidencing the refinanced senior lien shall be less than or
equal to (x) the interest rate on the loan evidencing the existing
senior lien prior to the date of refinancing plus (y) 2.0%; and
(iii) the loan evidencing the refinanced senior lien is not
subject to negative amortization.
The relationship of the Servicer (and of any successor to the Servicer
as servicer under this Servicing Agreement) to the Issuing Entity under this
Servicing Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent.
(b) The Servicer may continue in effect Subservicing Agreements entered
into by the Sponsor and Subservicers prior to the execution and delivery of this
Agreement, and may enter into Subservicing Agreements with Subservicers for the
servicing and administration of certain of the Loans. Each Subservicer of a Loan
shall be entitled to receive and retain, as provided in the related Subservicing
Agreement and in Section 3.02, the related Subservicing Fee from payments of
interest received on such Loan after payment of all amounts required to be
remitted to the Servicer in respect of such Loan. For any Loan not subject to a
Subservicing Agreement, the Servicer shall be entitled to receive and retain an
amount equal to the Subservicing Fee from payments of interest. References in
this Servicing Agreement to actions taken or to be taken by the Servicer in
servicing the Loans include actions taken or to be taken by a Subservicer on
behalf of the Servicer. Each Subservicing Agreement will be upon such terms and
conditions as are not inconsistent with this Servicing Agreement and as the
Servicer and the Subservicer have agreed. With the approval of the Servicer, a
Subservicer may delegate its servicing obligations to third-party servicers, but
such Subservicers will remain obligated under the related Subservicing
Agreements. The Servicer and the Subservicer may enter into amendments to the
related Subservicing Agreements; provided, however, that any such amendments
shall not cause the Loans to be serviced in a manner that would be materially
inconsistent with the standards set forth in this Servicing Agreement. The
Servicer shall be entitled to terminate any Subservicing Agreement in accordance
with the terms and conditions thereof and without any limitation by virtue of
this Servicing Agreement; provided, however, that in the event of termination of
any Subservicing Agreement by the Servicer or the Subservicer, the Servicer
shall either act as servicer of the related Loan or enter into a Subservicing
Agreement with a successor Subservicer which will be bound by the terms of the
related Subservicing Agreement. The Servicer shall be entitled to enter into any
agreement with a Subservicer for indemnification of the Servicer and nothing
contained in this Servicing Agreement shall be deemed to limit or modify such
indemnification.
In the event that the rights, duties and obligations of the Servicer
are terminated hereunder, any successor to the Servicer in its sole discretion
may, to the extent permitted by applicable law, terminate the existing
Subservicing Agreement with any Subservicer in accordance with the terms of the
applicable Subservicing Agreement or assume the terminated Servicer's rights and
obligations under such subservicing arrangements which termination or assumption
will not violate the terms of such arrangements.
As part of its servicing activities hereunder, the Servicer, for the
benefit of the Securityholders, shall use reasonable efforts to enforce the
obligations of each Subservicer under the related Subservicing Agreement, to the
extent that the non-performance of any such obligation would have a material
adverse effect on a Loan. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Subservicing Agreements and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as the Servicer would employ in its good faith
business judgment and which are normal and usual in its general mortgage
servicing activities. The Servicer shall pay the costs of such enforcement at
its own expense, and shall be reimbursed therefor only (i) from a general
recovery resulting from such enforcement to the extent, if any, that such
recovery exceeds all amounts due in respect of the related Loan or (ii) from a
specific recovery of costs, expenses or attorneys fees against the party against
whom such enforcement is directed.
Section 3.02 Collection of Certain Loan Payments. (a) The Servicer
shall make reasonable efforts to collect all payments called for under the terms
and provisions of the Loans, and shall, to the extent such procedures shall be
consistent with this Servicing Agreement and generally consistent with any
related insurance policy, follow such collection procedures as it would employ
in its good faith business judgment and which are normal and usual in its
general mortgage servicing activities. Consistent with the foregoing, and
without limiting the generality of the foregoing, the Servicer may in its
discretion waive any late payment charge, prepayment charge or penalty interest
or other fees which may be collected in the ordinary course of servicing such
Loan. The Servicer may also extend the Due Date for payment due on a Loan,
provided, however, that the Servicer shall first determine that any such waiver
or extension will not impair the coverage of any related insurance policy or
materially adversely affect the lien of the related Mortgage (except as
described below) or the interests of the Securityholders. Consistent with the
terms of this Servicing Agreement, the Servicer may also:
(i) waive, modify or vary any term of any Loan;
(ii) consent to the postponement of strict compliance with any
such term or in any manner grant indulgence to any Mortgagor;
(iii) arrange with a Mortgagor a schedule for the payment of
principal and interest due and unpaid;
(iv) forgive any portion of the amounts contractually owed
under the Loan;
(v) capitalize past due amounts owed under the Loan by adding
any amounts in arrearage to the existing principal balance of the Loan
(a "Capitalization Workout") of which will result in an increased
Monthly Payment amount, provided that: (A) the amount added to the
existing principal balance of the Loan (the "Capitalized Amount") shall
be no greater than five times the Mortgagor's current Monthly Payment
amount; and (B) the Servicer shall not enter into a Capitalization
Workout unless the Combined Loan-to-Value Ratio of the Loan prior to
the Capitalization Workout equals or exceeds 80% and the Mortgagor has
qualified for the Capitalization Workout under the Servicer's servicing
guidelines;
(vi) reset the Due Date for the Loan, or any combination of
the foregoing;
if in the Servicer's determination such waiver, modification, postponement or
indulgence, arrangement or other action referred to above is not materially
adverse to the interests of the Securityholders and is generally consistent with
the Servicer's policies with respect to mortgage loans similar to the Loans;
provided, however, that the Servicer may not modify or permit any Subservicer to
modify any Loan (including without limitation any modification that would change
the Loan Rate, forgive the payment of any principal or interest (unless in
connection with the liquidation of the related Loan) or extend the final
maturity date of such Loan) unless such Loan is in default or, in the judgment
of the Servicer, such default is reasonably foreseeable. The general terms of
any waiver, modification, postponement or indulgence with respect to any of the
Loans will be included in the Servicing Certificate, and such Loans will not be
considered "delinquent" for the purposes of the Basic Documents so long as the
Mortgagor complies with the terms of such waiver, modification, postponement or
indulgence.
(b) The Servicer shall establish a Custodial Account, which shall be an
Eligible Account in which the Servicer shall deposit or cause to be deposited
any amounts representing payments and collections in respect of the Loans
received by it subsequent to the Cut-off Date (other than in respect of the
payments referred to in the following paragraph) within one Business Day
following receipt thereof (or otherwise on or prior to the Closing Date),
including the following payments and collections received or made by it (without
duplication):
(i) all payments of principal or interest on the Loans
received by the Servicer from the respective Subservicer, net of any
portion of the interest thereof retained by the Subservicer as
Subservicing Fees;
(ii) the aggregate Repurchase Price of the Loans purchased by
the Servicer pursuant to Section 3.15;
(iii) Net Liquidation Proceeds net of any related Foreclosure
Profit;
(iv) all proceeds of any Loans repurchased by the Sponsor
pursuant to the Loan Purchase Agreement, and all Substitution Amounts
required to be deposited in connection with the substitution of an
Eligible Substitute Loan pursuant to the Loan Purchase Agreement;
(v) insurance proceeds, other than Net Liquidation Proceeds,
resulting from any insurance policy maintained on a Mortgaged Property;
and
(vi) amounts required to be paid by the Servicer pursuant to
Sections 3.04 and 8.08.
provided, however, that with respect to each Collection Period, the Servicer
shall be permitted to retain from payments in respect of interest on the Loans,
the Servicing Fee for such Collection Period. The foregoing requirements
respecting deposits to the Custodial Account are exclusive, it being understood
that, without limiting the generality of the foregoing, the Servicer need not
deposit in the Custodial Account amounts representing Foreclosure Profits,
prepayment penalties, fees (including annual fees) or late charge penalties
payable by Mortgagors (such amounts to be retained as additional servicing
compensation in accordance with Section 3.09 hereof), or amounts received by the
Servicer for the accounts of Mortgagors for application towards the payment of
taxes, insurance premiums, assessments and similar items. In the event any
amount not required to be deposited in the Custodial Account is so deposited,
the Servicer may at any time withdraw such amount from the Custodial Account,
any provision herein to the contrary notwithstanding.
The Servicer may cause the institution maintaining the Custodial
Account to invest any funds in the Custodial Account in Permitted Investments,
which shall mature not later than the Business Day preceding the next Payment
Date and which shall not be sold or disposed of prior to its maturity. Except as
provided above, all income and gain realized from any such investment shall
inure to the benefit of the Servicer and shall be subject to its withdrawal or
order from time to time. The amount of any losses incurred in respect of the
principal amount of any such investments shall be deposited in the Custodial
Account by the Servicer out of its own funds immediately as realized.
(c) The Servicer will require each Subservicer to hold all funds
constituting collections on the Loans, pending remittance thereof to the
Servicer, in one or more accounts meeting the requirements of an Eligible
Account, and invested in Permitted Investments.
Section 3.03 Withdrawals From the Custodial Account. The Servicer
shall, from time to time as provided herein, make withdrawals from the Custodial
Account of amounts on deposit therein pursuant to Section 3.02 that are
attributable to the Loans for the following purposes:
(i) to deposit in the Payment Account, seven days prior to
each Payment Date (or if such day is not a Business Day, the
immediately preceding Business Day), an amount equal to the Interest
Remittance Amount (excluding any payments under the Yield Maintenance
Agreement that were received by the Indenture Trustee) and Principal
Remittance Amount required to be distributed on such Payment Date;
(ii) to the extent deposited to the Custodial Account, to
reimburse itself or the related Subservicer for previously unreimbursed
expenses incurred in maintaining individual insurance policies pursuant
to Section 3.04, or Liquidation Expenses, paid pursuant to Section 3.07
or otherwise reimbursable pursuant to the terms of this Servicing
Agreement (to the extent not payable pursuant to Section 3.09), such
withdrawal right being limited to amounts received on particular Loans
(other than any Repurchase Price in respect thereof) which represent
late recoveries of the payments for which such advances were made, or
from related Liquidation Proceeds or the proceeds of the purchase of
such Loan;
(iii) to pay to itself out of each payment received on account
of interest on a Loan as contemplated by Section 3.09, an amount equal
to the related Servicing Fee (to the extent not retained pursuant to
Section 3.02), and to pay to any Subservicer any Subservicing Fees not
previously withheld by the Subservicer;
(iv) to the extent deposited in the Custodial Account to pay
to itself as additional servicing compensation any interest or
investment income earned on funds deposited in the Custodial Account
and Payment Account that it is entitled to withdraw pursuant to
Sections 3.02(b) and 5.01;
(v) to pay to itself or the Sponsor, with respect to any Loan
or property acquired in respect thereof that has been purchased or
otherwise transferred to the Sponsor, the Servicer or other entity, all
amounts received thereon and not required to be distributed to
Securityholders as of the date on which the related Purchase Price or
Repurchase Price is determined; and
(vi) to withdraw any other amount deposited in the
Custodial Account that was not required to be deposited
therein pursuant to Section 3.02.
Since, in connection with withdrawals pursuant to clauses (ii), (iii), (iv) and
(v), the Servicer's entitlement thereto is limited to collections or other
recoveries on the related Loan, the Servicer shall keep and maintain separate
accounting, on a Loan by Loan basis, for the purpose of justifying any
withdrawal from the Custodial Account pursuant to such clauses. Notwithstanding
any other provision of this Servicing Agreement, the Servicer shall be entitled
to reimburse itself for any previously unreimbursed expenses incurred pursuant
to Section 3.07 or otherwise reimbursable pursuant to the terms of this
Servicing Agreement that the Servicer determines to be otherwise nonrecoverable
(except with respect to any Loan as to which the Repurchase Price has been
paid), by withdrawal from the Custodial Account of amounts on deposit therein
attributable to the Loans on any Business Day prior to the Payment Date
succeeding the date of such determination.
Section 3.04 Maintenance of Hazard Insurance; Property Protection
Expenses. The Servicershall cause to be maintained for each Loan hazard
insurance naming the Servicer or related Subservicer as loss payee thereunder
providing extended coverage in an amount which is equal to at least 100% of the
insurable value of the improvements (guaranteed replacement) or the sum of the
unpaid principal balance of the first mortgage loan and the Loan amount. The
Servicer shall also cause to be maintained on property acquired upon
foreclosure, or deed in lieu of foreclosure, of any Loan, fire insurance with
extended coverage in an amount which is at least equal to the amount necessary
to avoid the application of any coinsurance clause contained in the related
hazard insurance policy. Amounts collected by the Servicer under any such
policies (other than amounts to be applied to the restoration or repair of the
related Mortgaged Property or property thus acquired or amounts released to the
Mortgagor in accordance with the Servicer's normal servicing procedures) shall
be deposited in the Custodial Account to the extent called for by Section 3.02.
In cases in which any Mortgaged Property is located at any time during the life
of a Loan in a federally designated flood area, the hazard insurance to be
maintained for the related Loan shall include flood insurance (to the extent
available). All such flood insurance shall be in amounts equal to the lesser of
(i) the amount required to compensate for any loss or damage to the Mortgaged
Property on a replacement cost basis and (ii) the maximum amount of such
insurance available for the related Mortgaged Property under the national flood
insurance program (assuming that the area in which such Mortgaged Property is
located is participating in such program). The Servicer shall be under no
obligation to require that any Mortgagor maintain earthquake or other additional
insurance and shall be under no obligation itself to maintain any such
additional insurance on property acquired in respect of a Loan, other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance. If the Servicer shall
obtain and maintain a blanket policy consistent with its general mortgage
servicing activities insuring against hazard losses on all of the Loans, it
shall conclusively be deemed to have satisfied its obligations as set forth in
the first sentence of this Section 3.04, it being understood and agreed that
such blanket policy may contain a deductible clause, in which case the Servicer
shall, in the event that there shall not have been maintained on the related
Mortgaged Property a policy complying with the first sentence of this Section
3.04 and there shall have been a loss which would have been covered by such
policy, deposit in the Custodial Account the amount not otherwise payable under
the blanket policy because of such deductible clause. Any such deposit by the
Servicer shall be made on the last Business Day of the Collection Period in the
month in which payments under any such policy would have been deposited in the
Custodial Account. In connection with its activities as servicer of the Loans,
the Servicer agrees to present, on behalf of itself, the Issuing Entity and the
Indenture Trustee, claims under any such blanket policy.
Section 3.05 Modification Agreements. The Servicer or the related
Subservicer, as the case may be, shall be entitled to (A) execute assumption
agreements, modification agreements, substitution agreements, and instruments of
satisfaction or cancellation or of partial or full release or discharge, or any
other document contemplated by this Servicing Agreement and other comparable
instruments with respect to the Loans and with respect to the Mortgaged
Properties subject to the Mortgages (and the Issuing Entity and the Indenture
Trustee each shall promptly execute any such documents on request of the
Servicer) and (B) approve the granting of an easement thereon in favor of
another Person, any alteration or demolition of the related Mortgaged Property
or other similar matters, in each case if it has determined, exercising its good
faith business judgment in the same manner as it would if it were the owner of
the related Loan, that the security for, and the timely and full collectability
of, such Loan would not be adversely affected thereby. A partial release
pursuant to this Section 3.05 shall be permitted only if the Combined
Loan-to-Value Ratio for such Loan after such partial release does not exceed the
Combined Loan-to-Value Ratio for such Loan as of the Cut-off Date. Any fee
collected by the Servicer or the related Subservicer for processing such request
will be retained by the Servicer or such Subservicer as additional servicing
compensation.
Section 3.06 Trust Estate; Related Documents. (a) When required by the
provisions of this Servicing Agreement, the Issuing Entity or the Indenture
Trustee shall execute instruments to release property from the terms of the
Trust Agreement, Indenture or Custodial Agreement, as applicable, or convey the
Issuing Entity's or the Indenture Trustee's interest in the same, in a manner
and under circumstances which are not inconsistent with the provisions of this
Servicing Agreement. No party relying upon an instrument executed by the Issuing
Entity or the Indenture Trustee as provided in this Section 3.06 shall be bound
to ascertain the Issuing Entity's or the Indenture Trustee's authority, inquire
into the satisfaction of any conditions precedent or see to the application of
any monies.
(b) If from time to time the Servicer shall deliver to the Custodian
copies of any written assurance, assumption agreement or substitution agreement
or other similar agreement pursuant to Section 3.05, the Custodian shall check
that each of such documents purports to be an original executed copy (or a copy
of the original executed document if the original executed copy has been
submitted for recording and has not yet been returned) and, if so, shall file
such documents, and upon receipt of the original executed copy from the
applicable recording office or receipt of a copy thereof certified by the
applicable recording office shall file such originals or certified copies with
the Related Documents. If any such documents submitted by the Servicer do not
meet the above qualifications, such documents shall promptly be returned by the
Custodian to the Servicer pursuant to the related Custodial Agreement, with a
direction to the Servicer to forward the correct documentation.
(c) Upon receipt of a "Request for Release", in the form attached
hereto as Exhibit C, from the Servicer (a "Request for Release"), to the effect
that a Loan has been the subject of a final payment or a prepayment in full and
the related Loan has been terminated or that substantially all Liquidation
Proceeds which have been determined by the Servicer in its reasonable judgment
to be finally recoverable have been recovered, and upon deposit to the Custodial
Account of such final monthly payment, prepayment in full together with accrued
and unpaid interest to the date of such payment with respect to such Loan or, if
applicable, Liquidation Proceeds, the Custodian shall promptly release the
Related Documents to the Servicer pursuant to the related Custodial Agreement,
which the Indenture Trustee shall execute, along with such documents as the
Servicer or the Mortgagor may request to evidence satisfaction and discharge of
such Loan, upon request of the Servicer. If from time to time and as appropriate
for the servicing or foreclosure of any Loan, the Servicer requests the
Custodian to release the Related Documents and delivers to the Custodian a
Request for Release to the Custodian signed by a Responsible Officer of the
Servicer, the Custodian shall release the Related Documents to the Servicer
pursuant to the related Custodial Agreement. The Servicer shall return promptly
to the Custodian the Related Documents when the Servicer's need therefor no
longer exists, unless the related Loan has been liquidated. If such Loans shall
be liquidated and the Custodian receives a Request for Release from the Servicer
as provided above, then, upon request of the Servicer, the Custodian shall
release the Request for Release to the Servicer pursuant to the related
Custodial Agreement.
Section 3.07 Realization Upon Defaulted Loans; Loss Mitigation. With
respect to such of the Loans as come into and continue in default, the Servicer
will decide whether to (i) foreclose upon the Mortgaged Properties securing such
Loans, (ii) write off the unpaid principal balance of the Loans as bad debt,
(iii) take a deed in lieu of foreclosure, (iv) accept a short sale (a payoff of
the Loan for an amount less than the total amount contractually owed in order to
facilitate a sale of the Mortgaged Property by the Mortgagor) or permit a short
refinancing (a payoff of the Loan for an amount less than the total amount
contractually owed in order to facilitate refinancing transactions by the
Mortgagor not involving a sale of the Mortgaged Property), (v) arrange for a
repayment plan, (vi) agree to a modification in accordance with this Servicing
Agreement, or (vii) take an unsecured note, in connection with a negotiated
release of the lien of the Mortgage in order to facilitate a settlement with the
Mortgagor; in each case subject to the rights of any related first lien holder;
provided that in connection with the foregoing if the Servicer has actual
knowledge that any Mortgaged Property is affected by hazardous or toxic wastes
or substances and that the acquisition of such Mortgaged Property would not be
commercially reasonable, then the Servicer will not cause the Issuing Entity or
the Indenture Trustee to acquire title to such Mortgaged Property in a
foreclosure or similar proceeding. In connection with such decision, the
Servicer shall follow such practices (including, in the case of any default on a
related senior mortgage loan, the advancing of funds to correct such default if
deemed to be appropriate by the Servicer) and procedures as it shall deem
necessary or advisable and as shall be normal and usual in its general mortgage
servicing activities; provided that the Servicer shall not be liable in any
respect hereunder if the Servicer is acting in connection with any such
foreclosure or attempted foreclosure which is not completed or other conversion
in a manner that is consistent with the provisions of this Servicing Agreement.
The foregoing is subject to the proviso that the Servicer shall not be required
to expend its own funds in connection with any foreclosure or attempted
foreclosure which is not completed or towards the correction of any default on a
related senior mortgage loan or restoration of any property unless it shall
determine that such expenditure will increase Net Liquidation Proceeds. In the
event of a determination by the Servicer that any such expenditure previously
made pursuant to this Section 3.07 will not be reimbursable from Net Liquidation
Proceeds, the Servicer shall be entitled to reimbursement of its funds so
expended pursuant to Section 3.03.
Notwithstanding any provision of this Servicing Agreement, a Loan may
be deemed to be finally liquidated if substantially all amounts expected by the
Servicer to be received in connection with the related defaulted Loan have been
received; provided, however, the Servicer shall treat any Loan that is 180 days
or more delinquent as having been finally liquidated. The Servicer may retain a
Subservicer to sell or perform collection activities with respect to a Loan that
is 180 days or more delinquent, and any subsequent collections (less the
applicable subservicing fee) with respect to any such Loan shall be deposited to
the Custodial Account. For purposes of determining the amount of any Liquidation
Proceeds or Insurance Proceeds, or other unscheduled collections, the Servicer
may take into account minimal amounts of additional receipts expected to be
received or any estimated additional Liquidation Expenses expected to be
incurred in connection with the related defaulted Loan.
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 issued to the Indenture Trustee, who shall hold the same on behalf of
the Issuing Entity in accordance with Section 3.13 of the Indenture.
Notwithstanding any such acquisition of title and cancellation of the related
Loan, such Mortgaged Property shall (except as otherwise expressly provided
herein) be considered to be an outstanding Loan held as an asset of the Issuing
Entity until such time as such property shall be sold.
Any proceeds from the purchase or repurchase of any Loan pursuant to
the terms of this Servicing Agreement (including without limitation Sections
2.03 and 3.15) will be applied in the following order of priority: first, to the
Servicer or the related Subservicer, all Servicing Fees payable therefrom to the
Payment Date on which such amounts are to be deposited in the Payment Account;
second, as part of the Interest Remittance Amount, accrued and unpaid interest
on the related Loan, at the Net Loan Rate to the Payment Date on which such
amounts are to be deposited in the Payment Account; and third, as part of the
Principal Remittance Amount, as a recovery of principal on the Loan.
Liquidation Proceeds with respect to a Liquidated Loan will be applied
in the following order of priority: first, to reimburse the Servicer or the
related Subservicer in accordance with this Section 3.07 for any Liquidation
Expenses; second, to the Servicer or the related Subservicer, all unpaid
Servicing Fees through the date of receipt of the final Liquidation Proceeds;
third as part of the Interest Remittance Amount, accrued and unpaid interest on
the related Loan at the Net Loan Rate through the date of receipt of the final
Liquidation Proceeds; fourth as part of the Principal Remittance Amount, as a
recovery of principal on the Loan, up to an amount equal to the Loan Balance of
the related Loan immediately prior to the date it became a Liquidated Loan; and
fifth, to Foreclosure Profits.
Proceeds and other recoveries from a Loan after it becomes a Liquidated
Loan will be applied in the following order of priority: first, to reimburse the
Servicer or the related Subservicer in accordance with this Section 3.07 for any
expenses previously unreimbursed from Liquidation Proceeds or otherwise; second,
to the Servicer or the related Subservicer, all unpaid Servicing Fees payable
thereto through the date of receipt of the proceeds previously unreimbursed from
Liquidation Proceeds or otherwise; third, as part of the Interest Remittance
Amount, up to an amount equal to the sum of (a) the Stated Principal Balance of
the related Loan immediately prior to the date it became a Liquidated Loan, less
any Net Liquidation Proceeds previously received with respect to such Loan and
applied as a recovery of principal, and (b) accrued and unpaid interest on the
related Loan at the Net Loan Rate through the date of receipt of the proceeds;
and fourth, to Foreclosure Profits.
Section 3.08 Issuing Entity and Indenture Trustee to Cooperate. On or before
each Payment Date, the Servicer will notify the Indenture Trustee or the
Custodian, with a copy to the Issuing Entity, of the termination of or the
payment in full and the termination of any Loan during the preceding Collection
Period. Upon receipt of payment in full, the Servicer is authorized to execute,
pursuant to the authorization contained in Section 3.01, if the assignments of
Mortgage have been recorded if required under the Loan Purchase Agreement, an
instrument of satisfaction regarding the related Mortgage, which instrument of
satisfaction shall be recorded by the Servicer if required by applicable law and
be delivered to the Person entitled thereto. It is understood and agreed that
any expenses incurred in connection with such instrument of satisfaction or
transfer shall be reimbursed from amounts deposited in the Custodial Account.
From time to time and as appropriate for the servicing or foreclosure of any
Loan, the Indenture Trustee or the Custodian shall, upon request of the Servicer
and delivery to the Indenture Trustee or Custodian, with a copy to the Issuing
Entity, of a Request for Release, signed by a Servicing Officer, release or
cause to be released the related Mortgage File to the Servicer and the Issuing
Entity or Indenture Trustee shall promptly execute such documents, in the forms
provided by the Servicer, as shall be necessary for the prosecution of any such
proceedings or the taking of other servicing actions. Such trust receipt shall
obligate the Servicer to return the Mortgage File to the Indenture Trustee or
the Custodian (as specified in such receipt) when the need therefor by the
Servicer no longer exists unless the Loan shall be liquidated, in which case,
upon receipt of a certificate of a Servicing Officer similar to that hereinabove
specified, the trust receipt shall be released to the Servicer.
In order to facilitate the foreclosure of the Mortgage securing any
Loan that is in default following recordation of the assignments of Mortgage in
accordance with the provisions of the Loan Purchase Agreement, the Indenture
Trustee or the Issuing Entity shall, if so requested in writing by the Servicer,
promptly execute an appropriate assignment in the form provided by the Servicer
to assign such Loan for the purpose of collection to the Servicer (any such
assignment shall unambiguously indicate that the assignment is for the purpose
of collection only), and, upon such assignment, such assignee for collection
will thereupon bring all required actions in its own name and otherwise enforce
the terms of the Loan and deposit or credit the Net Liquidation Proceeds,
exclusive of Foreclosure Profits, received with respect thereto in the Custodial
Account. In the event that all delinquent payments due under any such Loan are
paid by the Mortgagor and any other defaults are cured, then the assignee for
collection shall promptly reassign such Loan to the Indenture Trustee and return
all Related Documents to the place where the related Mortgage File was being
maintained.
In connection with the Issuing Entity's obligation to cooperate as
provided in this Section 3.08 and all other provisions of this Servicing
Agreement requiring the Issuing Entity to authorize or permit any actions to be
taken with respect to the Loans, the Indenture Trustee, as pledgee of the Loans
and as assignee of record of the Loans on behalf of the Issuing Entity pursuant
to Section 3.13 of the Indenture, expressly agrees, on behalf of the Issuing
Entity, to take all such actions on behalf of the Issuing Entity and to promptly
execute and return all instruments reasonably required by the Servicer in
connection therewith; provided that if the Servicer shall request a signature of
the Indenture Trustee, on behalf of the Issuing Entity, the Servicer will
deliver to the Indenture Trustee an Officer's Certificate stating that such
signature is necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties under this Servicing Agreement. Section 3.09
Servicing Compensation; Payment of Certain Expenses by Servicer. The Servicer
shall be entitled to receive the Servicing Fee in accordance with Sections 3.02
and 3.03 as compensation for its services in connection with servicing the
Loans. Moreover, additional servicing compensation in the form of late payment
charges, prepayment charges, investment income on amounts in the Custodial
Account or the Payment Account and other receipts not required to be deposited
in the Custodial Account as specified in Section 3.02 shall be retained by the
Servicer. The Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor.
Section 3.10 Annual Statement as to Compliance. (a) The Servicer will
deliver to the Issuing Entity, the Underwriters and the Indenture Trustee on or
before February 28 of each year, beginning February 28, ____, an Officer's
Certificate (an "Annual Statement of Compliance") stating, as to each signatory
thereof, that (i) a review of the activities of the Servicer during the
preceding calendar year and of performance under this Servicing Agreement and
other applicable servicing agreements has been made under such officer's
supervision and (ii) to the best of such officers' knowledge, based on such
review, the Servicer has complied in all respects with its obligations under
this Agreement or other applicable servicing agreements in all material respects
throughout such year, or, if there has been failure to fulfill such obligation
in any material respect, such statement shall include a description of such
noncompliance or specify each such default, as the case may be, known to such
officer and the nature and status or cure provisions thereof. Such Annual
Statement of Compliance shall contain no restrictions or limitations on its use.
In the event that the Servicer has delegated any servicing responsibilities with
respect to the Mortgage Loans to a subservicer, the Servicer shall deliver a
similar Annual Statement of Compliance by that subservicer to the Indenture
Trustee as described above as and when required with respect to the Servicer.
If the Servicer cannot deliver the related Annual Statement of
Compliance by February 28th of such year, the Indenture Trustee, at its sole
option, may permit a cure period for the Servicer to deliver such Annual
Statement of Compliance, but in no event later than March 10th of such year.
Failure of the Servicer to timely comply with this Section 3.10 shall
be deemed a Servicing Default, and the Indenture Trustee may, in addition to
whatever rights the Indenture Trustee may have under this Servicing Agreement
and at law or equity or to damages, including injunctive relief and specific
performance, upon notice immediately terminate all the rights and obligations of
the Servicer under this Servicing Agreement and in and to the Mortgage Loans and
the proceeds thereof without compensating the Servicer for the same. This
paragraph shall supercede any other provision in this Servicing Agreement or any
other agreement to the contrary.
(b) The Servicer shall deliver to the Issuing Entity and the Indenture Trustee,
promptly after having obtained knowledge thereof, but in no event later than
five Business Days thereafter, written notice by means of an Officer's
Certificate of any event which with the giving of notice or the lapse of time or
both, would become a Servicing Default.
Section 3.11 Assessments of Compliance and Attestation Reports. On and
after January 1, 2006, the Servicer shall service and administer the Loans in
accordance with all applicable requirements of the Servicing Criteria. Pursuant
to Rules 13a-18 and 15d-18 of the Exchange Act and Item 1123 of Regulation AB,
the Servicer shall deliver to the Depositor, the Issuing Entity, the Indenture
Trustee, the Depositor, the credit enhancer and each Rating Agency on or before
February 28 of each calendar year beginning in 2007, a report regarding the
Servicer's assessment of compliance (an "Assessment of Compliance") with the
Servicing Criteria during the preceding calendar year. The Assessment of
Compliance must be reasonably satisfactory to the Indenture Trustee, and as set
forth in Regulation AB, the Assessment of Compliance must contain the following:
(a) A statement by such officer of its responsibility for assessing
compliance with the Servicing Criteria applicable to the Servicer;
(b) A statement by such officer that such officer used the Servicing
Criteria attached as Exhibit A hereto, and which will also be attached to the
Assement of Compliance, to assess compliance with the Servicing Criteria
applicable to the Servicer;
(c) An assessment by such officer of the Servicer's compliance with the
applicable Servicing Criteria for the period consisting of the preceding
calendar year, including disclosure of any material instance of noncompliance
with respect thereto during such period, which assessment shall be based on the
activities it performs with respect to asset-backed securities transactions
taken as a whole involving the Servicer, that are backed by the same asset type
as the Loans;
(d) A statement that a registered public accounting firm has issued an
attestation report on the Servicer's Assessment of Compliance for the period
consisting of the preceding calendar year; and
(e) A statement as to which of the Servicing Criteria, if any, are not
applicable to the Servicer, which statement shall be based on the activities it
performs with respect to asset-backed securities transactions taken as a whole
involving the Servicer, that are backed by the same asset type as the Mortgage
Loans.
Such report at a minimum shall address each of the Servicing Criteria
specified on Exhibit A hereto which are indicated as applicable to the Servicer.
On or before February 28 of each calendar year beginning in 2007, the
Servicer shall furnish to the Depositor, the Issuing Entity, the Indenture
Trustee, the Depositor, the credit enhancer and each Rating Agency a report (an
"Attestation Report") by a registered public accounting firm that attests to,
and reports on, the Assessment of Compliance made by the Depositor, as required
by Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122(b) of Regulation
AB, which Attestation Report must be made in accordance with standards for
attestation reports issued or adopted by the Public Company Accounting Oversight
Board.
The Servicer shall cause any subservicer, and each subcontractor
determined by the Servicer to be "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB, to deliver to the Depositor,
the Issuing Entity, the Indenture Trustee, the Depositor, the credit enhancer
and each Rating Agency an Assessment of Compliance and Attestation Report as and
when provided above.
Such Assessment of Compliance, as to any subservicer, shall at a
minimum address each of the Servicing Criteria specified on Exhibit A hereto
which are indicated as applicable to any "primary servicer." Notwithstanding the
foregoing, as to any subcontractor, an Assessment of Compliance is not required
to be delivered unless it is required as part of a Form 10-K with respect to the
trust fund.
If the Servicer cannot deliver any Assessment of Compliance or
Attestation Report by February 28th of such year, the Indenture Trustee, at its
sole option, may permit a cure period for the Servicer to deliver such
Assessment of Compliance or Attestation Report, but in no event later than March
10th of such year.
Failure of the Master Servicer to timely comply with this Section 3.11
shall be deemed a Servicing Default, and the Indenture Trustee may, in addition
to whatever rights the Indenture Trustee may have under this Agreement and at
law or equity or to damages, including injunctive relief and specific
performance, upon notice immediately terminate all the rights and obligations of
the Servicer under this Agreement and in and to the Mortgage Loans and the
proceeds thereof without compensating the Servicer for the same. This paragraph
shall supercede any other provision in this Agreement or any other agreement to
the contrary.
The Indenture Trustee shall also provide an Assessment of Compliance
and Attestation Report, as and when provided above, which shall at a minimum
address each of the Servicing Criteria specified on Exhibit A hereto which are
indicated as applicable to the "indenture trustee" or "securities
administrator." In addition, the Indenture Trustee shall cause the Custodian to
deliver to the Indenture Trustee and the Depositor an Assessment of Compliance
and Attestation Report, as and when provided above, which shall at a minimum
address each of the Servicing Criteria specified on Exhibit A hereto which are
indicated as applicable to a "custodian." Notwithstanding the foregoing, as to
any Custodian, an Assessment of Compliance is not required to be delivered
unless it is required as part of a Form 10-K with respect to the trust fund.
Section 3.12 Access to Certain Documentation and Information Regarding
the Loans. Whenever required by statute or regulation, the Servicer shall
provide to any Securityholder upon reasonable request (or a regulator for a
Securityholder) or the Indenture Trustee, reasonable access to the documentation
regarding the Loans such access being afforded without charge but only upon
reasonable request and during normal business hours at the offices of the
Servicer. Nothing in this Section 3.12 shall derogate from the obligation of the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Mortgagors and the failure of the Servicer to provide access as
provided in this Section 3.12 as a result of such obligation shall not
constitute a breach of this Section 3.12.
Section 3.13 Maintenance of Certain Servicing Insurance Policies. The
Servicer shall during the term of its service as servicer maintain in force (i)
a policy or policies of insurance covering errors and omissions in the
performance of its obligations as Servicer hereunder and (ii) a fidelity bond in
respect of its officers, employees or agents. Each such policy or policies and
bond shall be at least equal to the coverage that would be required by FNMA or
FHLMC, whichever is greater, for Persons performing servicing for loans similar
to the Loans purchased by such entity.
Section 3.14 Information Required by the Internal Revenue Service and
Reports of Foreclosures and Abandonments of Mortgaged Property. The Servicer
shall prepare and deliver all federal and state information reports when and as
required by all applicable state and federal income tax laws. In particular,
with respect to the requirement under Section 6050J of the Code to the effect
that the Servicer or Subservicer shall make reports of foreclosures and
abandonments of any mortgaged property for each year beginning in ____, the
Servicer or Subservicer shall file reports relating to each instance occurring
during the previous calendar year in which the Servicer (i) on behalf of the
Issuing Entity, acquires an interest in any Mortgaged Property through
foreclosure or other comparable conversion in full or partial satisfaction of a
Loan, or (ii) knows or has reason to know that any Mortgaged Property has been
abandoned. The reports from the Servicer or Subservicer shall be in form and
substance sufficient to meet the reporting requirements imposed by Section 6050J
and Section 6050H (reports relating to mortgage interest received) of the Code.
Section 3.15 Optional Purchase of Loans by Servicer. The Servicer may,
at its option, repurchase a Loan which becomes 60 or more days delinquent. The
Servicer shall not use any procedure in selecting Loans to be repurchased which
is materially adverse to the interests of the Securityholders. The Servicer
shall purchase such delinquent Loan at a price equal to the Repurchase Price.
Any such repurchase of a Loan pursuant to this Section 3.15 shall be
accomplished by delivery to the Indenture Trustee for deposit in the Payment
Account of the amount of the Repurchase Price. The Indenture Trustee shall
immediately effectuate the conveyance of such delinquent Loan to the Servicer to
the extent necessary, including the prompt delivery of all documentation to the
Servicer.
Section 3.16 Intention of the Parties and Interpretation. Each of the
parties acknowledges and agrees that the purpose of Sections 3.10 and 3.11 of
this Servicing Agreement is to facilitate compliance with the provisions of
Regulation AB promulgated by the SEC under the 1934 Act (17 C.F.R. ▇▇.▇▇.
229.1100 - 229.1123), as such may be amended from time to time and subject to
clarification and interpretive advice as may be issued by the staff of the SEC
from time to time. Therefore, each of the parties agrees that (a) the
obligations of the parties hereunder shall be interpreted in such a manner as to
accomplish that purpose, (b) the parties' obligations hereunder will be
supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance, convention or consensus among
active participants in the asset-backed securities markets, advice of counsel,
or otherwise in respect of the requirements of Regulation AB, (c) the parties
shall comply with requests made by the Indenture Trustee or the Depositor for
delivery of additional or different information as the Indenture Trustee or the
Depositor may determine in good faith is necessary to comply with the provisions
of Regulation AB, and (d) no amendment of this Servicing Agreement shall be
required to effect any such changes in the parties' obligations as are necessary
to accommodate evolving interpretations of the provisions of Regulation AB.
ARTICLE IV
Servicing Certificate
Section 4.01 Statements to Securityholders. (a) With respect to each
Payment Date, on the Business Day following the related Determination Date, the
Servicer shall forward to the Indenture Trustee the Loan information reasonably
available to the Servicer with respect to the Loans as the Indenture Trustee may
reasonably request in order for the Indenture Trustee to perform the
calculations necessary to prepare the statements contemplated by this Section
4.01 (the "Servicing Certificate"). The Indenture Trustee pursuant to Section
3.23 of the Indenture shall forward or cause to be forwarded by mail to each
Certificateholder, the Depositor, the Owner Trustee, the Certificate Paying
Agent and each Rating Agency, a statement setting forth the following
information as to the Notes and Certificates, to the extent applicable:
(i) the aggregate amount of (a) Interest Remittance Amount,
(b) Principal Remittance Amount and (c) Substitution Amounts;
(ii) the amount of such distribution as principal to the
Noteholders;
(iii) the amount of such distribution as interest to the
Noteholders, separately stating the portion thereof in respect of
overdue accrued interest;
(iv) the number and Aggregate Loan Balance of the Loans as of
the end of the related Collection Period;
(v) the weighted average Net Loan Rate for the related
Collection Period and the weighted average Net Loan Rate for the
aggregate of the stated Principal Balance of (A) all of the Loans and
(B) the adjustable rate Loans, for the following Collection Period;
(vi) the weighted average Loan Rate for the related Collection
Period;
(vii) the Class Principal Balance after giving effect to the
distribution of principal on such Payment Date;
(viii) the Certificate Distribution Amount immediately
following such Payment Date;
(ix) the aggregate Servicing Fees for the related Collection
Period;
(x) the Overcollateralization Amount and the Targeted
Overcollateralization Amount immediately following such Payment Date;
(xi) the number and principal amount of Capitalization
Workouts pursuant to Section 3.02(a)(v) entered into since the Closing
Date;
(xii) the aggregate amount recovered during the related
Collection Period consisting of all subsequent recoveries on any Loan
that was 180 days or more delinquent;
(xiii) the related Basis Risk Shortfall for the Class A, Class
M-1 and Class B-1 Notes and the Available Funds Shortfall for the Class
B-2 Notes on each Payment Date;
(xiv) the applicable record dates, accrual periods,
determination dates for calculating distributions and general
distribution dates;
(xv) the total cash flows received and the general sources
thereof;
(xvi) the related amount of the Servicing Fees paid to or
retained by the Servicer for the related Due Period;
(xvii) the amount of any net swap payment payable to the
derivative administrator, any net swap payment payable to the Swap
Provider, any swap termination payment payable to the derivative
administrator and any swap termination payment payable to the Swap
Provider;
(xviii) the interest carry forward amount and any Basis Risk
Shortfall Carry Forward Amount for each Class of Notes;
(xix) the Note Principal Balance or Note Notional Amount, as
applicable, of each Class after giving effect (i) to all distributions
allocable to principal on such Distribution Date and (ii) the
allocation of any Applied Loss Amounts for such Distribution Date;
(xx) the number and Stated Principal Balance of the Loans in
each loan group in respect of which (A) one Scheduled Payment is
Delinquent, (B) two Scheduled Payments are delinquent, (C) three or
more Scheduled Payments are delinquent and (D) foreclosure proceedings
have been commenced, in each case as of the close of business on the
last day of the calendar month preceding such Distribution Date and
separately identifying such information for the (1) first lien Mortgage
Loans, (2) second lien Mortgage Loans, and (3) adjustable rate Loans,
in each such loan group; provided, however, that such information will
not be provided on the statements relating to the first Payment Date;
(xxi) the amount of advances included in the distribution on
such Distribution Date (including the general purpose of such
advances), the aggregate amount of unreimbursed advances at the close
of business on the Distribution Date, and the general source of funds
for reimbursements;
(xxii) the cumulative amount of Applied Loss Amounts to date;
(xxiii) if applicable, material modifications, extensions or
waivers to Loan terms, fees, penalties or payments during the preceding
calendar month or that have become material over time;
(xxiv) with respect to any Loan that was liquidated during the
preceding calendar month, the loan number and Stated Principal Balance
of, and Realized Loss on, such Loan as of the close of business on the
Determination Date preceding such Distribution Date;
(xxv) the total number and principal balance of any real
estate owned or REO properties as of the close of business on the
Determination Date preceding such Distribution Date;
(xxvi) the three month rolling average of the percent
equivalent of a fraction, the numerator of which is the aggregate
Stated Principal Balance of the Mortgage Loans that are 60 days or more
delinquent or are in bankruptcy or foreclosure or are REO properties,
and the denominator of which is the aggregate Stated Principal Balance
of all of the Loans in each case as of the close of business on the
last day of the calendar month preceding such Distribution Date and
separately identifying such information for the (1) first lien Loans,
and (2) adjustable rate Loans;
(xxvii) the Realized Losses during the related Prepayment
Period and the cumulative Realized Losses through the end of the
preceding month;
(xxviii) whether a trigger event exists;
(xxix) updated pool composition data including the following
with respect to each loan group: average loan balance, weighted average
mortgage rate, weighted average loan-to-value ratio at origination,
weighted average FICO at origination weighted average remaining term;
[NOTE - Item 1121(a)(8) requires updated pool composition information,
the foregoing is a suggestion of what to provide]
(xxx) information about any additions of, substitutions for or
removal of any Loans from the trust fund, and any changes in the
underwriting, acquisition or selection criteria as to any Mortgage
Loans added to the trust fund;
(xxxi) the amount, if any of fees or expenses accrued and
paid, with an identification of the payee and the general purpose of
such fees;
(xxxii) the amount of, if any, of excess cash flow or excess
spread and the application of such excess cash flow;
(xxxiii) interest rates, as applicable, to the pool assets and
securities;
(xxxiv) the beginning and ending balance of the reserve fund
or similar account, if any together with any material activity;
(xxxv) if applicable, material modifications, extensions or
waivers to pool asset terms, fees penalties or payments during the
distribution period or that have become material overtime;
(xxxvi) material breaches of pool asset representation or
warranties or transaction covenants;
(xxxvii) Information regarding any new issuance of securities
backed by the same asset pool, any pool asset changes, such as
additions or removals in connection with a prefunding and pool asset
substitutions and repurchases, and cash flows available for future
purchases, such as the balances of any prefunding, if applicable;
(xxxviii) The Special Hazard Amount, Fraud Loss Amount and
Bankruptcy Amount, if applicable, as of the close of business on the
applicable distribution date and a description of any change in the
calculation of these amount; and
(xxxix) With respect to any series of securities as to which
the trust fund includes mortgage securities, additional information as
required under this Agreement and specified in the related prospectus
supplement.
In the case of information furnished pursuant to clauses (ii) and (iii)
above, the amounts shall be expressed as an aggregate dollar amount per Note or
Certificate, as applicable, with a $1,000 denomination.
(b) In addition, with respect to each Payment Date, on the Business Day
following the related Determination Date, the Servicer shall forward to the
Rating Agencies the following information for each Capitalization Workout
entered into during the related Collection Period:
(i) the original Loan amount;
(ii) the Loan amount after the Capitalization Workout;
(iii) the original Monthly Payment amount;
(iv) the Monthly Payment amount after the Capitalization
Workout;
(v) the Capitalized Amount as defined in Section 3.02(a)(v)
herein;
(vi) the Combined Loan-to-Value Ratio prior to the
Capitalization Workout;
(vii) the Combined Loan-to-Value Ratio after the
Capitalization Workout; and
(viii) if an appraisal was used in determining the Combined
Loan-to-Value Ratio referred to in (vii) above, the type and date of
appraisal.
The Servicer shall also forward to the Indenture Trustee any other
information reasonably requested by the Indenture Trustee necessary to make
distributions pursuant to Section 3.05 of the Indenture. Prior to the close of
business on the Business Day next succeeding each Determination Date, the
Servicer shall furnish a written statement to the Certificate Paying Agent and
the Indenture Trustee setting forth the aggregate amounts required to be
withdrawn from the Custodial Account and deposited into the Payment Account on
the Business Day preceding the related Payment Date pursuant to Section 3.03.
The determination by the Servicer of such amounts shall, in the absence of
obvious error, be presumptively deemed to be correct for all purposes hereunder
and the Owner Trustee and Indenture Trustee shall be protected in relying upon
the same without any independent check or verification. In addition, upon the
Issuing Entity's written request, the Servicer shall promptly furnish
information reasonably requested by the Issuing Entity that is reasonably
available to the Servicer to enable the Issuing Entity to perform its federal
and state income tax reporting obligations.
Section 4.02 Tax Reporting. So long as 100% of the Certificates are
owned by the same person, then no separate federal and state income tax returns
and information returns or reports will be filed with respect to the Issuing
Entity, and the Issuing Entity will be treated as an entity disregarded from the
100% Certificateholder.
ARTICLE V
Payment Account
Section 5.01 Payment Account. The Indenture Trustee shall establish and
maintain a Payment Account titled "[Name of Indenture Trustee], as Indenture
Trustee, for the benefit of the Securityholders and the Certificate Paying Agent
pursuant to the Indenture, dated as of __________________, between _____ Trust
Series ____-__ and [Name of Indenture Trustee]". The Payment Account shall be an
Eligible Account. On each Payment Date, amounts on deposit in the Payment
Account will be distributed by the Indenture Trustee in accordance with Section
3.05 of the Indenture. The Indenture Trustee may invest or cause the institution
maintaining the Payment Account to invest the funds in the Payment Account in
Permitted Investments designated in the name of the Indenture Trustee, which
shall mature not later than the Business Day next preceding the Payment Date
next following the date of such investment. All income and gain realized from
any such investment shall be for the benefit of the Indenture Trustee and shall
be subject to its withdrawal or order from time to time. The amount of any
losses incurred in respect of any such investments shall be deposited in the
Payment Account by the Indenture Trustee out of its own funds immediately as
realized.
ARTICLE VI
The Servicer
Section 6.01 Liability of the Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
upon and undertaken by the Servicer herein.
Section 6.02 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer. Any corporation into which the Servicer 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 Servicer
shall be a party, or any corporation 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.
The Servicer may assign its rights and delegate its duties and
obligations under this Servicing Agreement; provided that the Person accepting
such assignment or delegation shall be a Person which is qualified to service
mortgage loans similar to those in the Trust Estate, is reasonably satisfactory
to the Indenture Trustee (as pledgee of the Loans) and the Issuing Entity, is
willing to service the Loans and executes and delivers to the Indenture Trustee
and the Issuing Entity an agreement, in form and substance reasonably
satisfactory to the Indenture Trustee and the Issuing Entity, which contains an
assumption by such Person of the due and punctual performance and observance of
each covenant and condition to be performed or observed by the Servicer under
this Servicing Agreement; provided further that each Rating Agency's rating of
the Securities in effect immediately prior to such assignment and delegation
will not be qualified, reduced, or withdrawn as a result of such assignment and
delegation (as evidenced by a letter to such effect from each Rating Agency);
and provided further that the Owner Trustee receives an Opinion of Counsel to
the effect that such assignment or delegation shall not cause the Owner Trust to
be treated as a corporation for federal or state income tax purposes.
Section 6.03 Limitation on Liability of the Servicer and Others.
Neither the Servicer nor any of the directors or officers or employees or agents
of the Servicer shall be under any liability to the Issuing Entity, the Owner
Trustee, the Indenture Trustee or the Securityholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Servicing Agreement, provided, however, that this provision shall not protect
the Servicer or any such Person against any liability which would otherwise be
imposed by reason of its willful misfeasance, bad faith or gross negligence in
the performance of its duties hereunder or by reason of its reckless disregard
of its obligations and duties hereunder. The Servicer and any director or
officer or 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 and any director or
officer or employee or agent of the Servicer shall be indemnified by the Issuing
Entity and held harmless against any loss, liability or expense incurred in
connection with any legal action relating to this Servicing Agreement or the
Securities, other than any loss, liability or expense incurred by reason of its
willful misfeasance, bad faith or gross negligence in the performance of its
duties hereunder or by reason of its reckless disregard of its obligations and
duties 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 Loans in accordance with this Servicing Agreement, and which in its
opinion may involve it in any expense or liability; provided, however, that the
Servicer may in its sole discretion undertake any such action which it may deem
necessary or desirable in respect of this Servicing Agreement, and the rights
and duties of the parties hereto and the interests of the Securityholders. In
such event, the reasonable legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Issuing Entity, and the Servicer shall be entitled to be reimbursed therefor.
The Servicer's right to indemnity or reimbursement pursuant to this Section 6.03
shall survive any resignation or termination of the Servicer pursuant to Section
6.04 or 7.01 with respect to any losses, expenses, costs or liabilities arising
prior to such resignation or termination (or arising from events that occurred
prior to such resignation or termination).
Section 6.04 Servicer Not to Resign. Subject to the provisions of
Section 6.02, the Servicer shall not resign from the obligations and duties
hereby imposed on it except (i) upon determination that the performance of its
obligations or duties hereunder are no longer permissible under applicable law
or are in material conflict by reason of applicable law with any other
activities carried on by it or its subsidiaries or Affiliates, the other
activities of the Servicer so causing such a conflict being of a type and nature
carried on by the Servicer or its subsidiaries or Affiliates at the date of this
Servicing Agreement or (ii) upon satisfaction of the following conditions: (a)
the Servicer has proposed a successor servicer to the Issuing Entity and the
Indenture Trustee in writing and such proposed successor servicer is reasonably
acceptable to the Issuing Entity and the Indenture Trustee; and (b) each Rating
Agency shall have delivered a letter to the Issuing Entity and the Indenture
Trustee prior to the appointment of the successor servicer stating that the
proposed appointment of such successor servicer as Servicer hereunder will not
result in the reduction or withdrawal of the then current rating of the
Securities; provided, however, that no such resignation by the Servicer shall
become effective until such successor servicer or, in the case of (i) above, the
Indenture Trustee, as pledgee of the Loans, shall have assumed the Servicer's
responsibilities and obligations hereunder or the Indenture Trustee, as pledgee
of the Loans, shall have designated a successor servicer in accordance with
Section 7.02. Any such resignation shall not relieve the Servicer of
responsibility for any of the obligations specified in Sections 7.01 and 7.02 as
obligations that survive the resignation or termination of 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 Indenture Trustee.
Section 6.05 Delegation of Duties. In the ordinary course of business,
the Servicer at any time may delegate any of its duties hereunder to any Person,
including any of its Affiliates, who agrees to conduct such duties in accordance
with standards comparable to those with which the Servicer complies pursuant to
Section 3.01. Such delegation shall not relieve the Servicer of its liabilities
and responsibilities with respect to such duties and shall not constitute a
resignation within the meaning of Section 6.04.
ARTICLE VII
Default
Section 7.01 Servicing Default. If any one of the following events
("Servicing Default") shall occur and be continuing:
(i) Any failure by the Servicer to deposit in the Custodial
Account or Payment Account any deposit required to be made under the
terms of this Servicing Agreement which continues unremedied for a
period of three Business Days after the date upon which written notice
of such failure shall have been given to the Servicer by the Issuing
Entity or the Indenture Trustee; or
(ii) Failure on the part of the Servicer duly to observe or
perform in any material respect any other covenants or agreements of
the Servicer set forth in the Securities or in this Servicing
Agreement, which failure, in each case, materially and adversely
affects the interests of Securityholders and which continues unremedied
for a period of 45 days after the date on which written notice of such
failure, requiring the same to be remedied, and stating that such
notice is a "Notice of Default" hereunder, shall have been given to the
Servicer by the Issuing Entity or the Indenture Trustee; or
(iii) The entry against the Servicer of a decree or order by a
court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a trustee, conservator, receiver or
liquidator in any insolvency, conservatorship, receivership,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order undischarged or unstayed
and in effect for a period of 60 consecutive days; or
(iv) The Servicer shall voluntarily go into liquidation,
consent to the appointment of a conservator, receiver, liquidator or
similar person in any insolvency, readjustment of debt, marshalling 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 a decree or order of a court, agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator,
receiver, liquidator or similar person in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs, shall have been
entered against the Servicer and such decree or order shall have
remained in force undischarged, unbonded or unstayed for a period of 60
days; or 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 or reorganization statute, make an
assignment for the benefit of its creditors or voluntarily suspend
payment of its obligations.
Then, and in every such case, so long as a Servicing Default shall not have been
remedied by the Servicer, either the Issuing Entity or the Indenture Trustee, by
notice then given in writing to the Servicer shall terminate all of the rights
and obligations of the Servicer as servicer under this Servicing Agreement other
than its right to receive servicing compensation and expenses for servicing the
Loans hereunder during any period prior to the date of such termination and the
Issuing Entity or the Indenture Trustee, may exercise any and all other remedies
available at law or equity. Any such notice to the Servicer shall also be given
to each Rating Agency and the Issuing Entity. On or after the receipt by the
Servicer of such written notice, all authority and power of the Servicer under
this Servicing Agreement, whether with respect to the Securities or the Loans or
otherwise, shall, subject to Section 7.02 of this Agreement, pass to and be
vested in the Indenture Trustee, pursuant to and under this Section 7.01; and,
without limitation, the Indenture Trustee is hereby authorized and empowered to
execute and 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 of each
Loan and related documents, or otherwise. The Servicer agrees to cooperate with
the Indenture Trustee in effecting the termination of the responsibilities and
rights of the Servicer hereunder, including, without limitation, the transfer to
the Indenture Trustee for the administration by it of all cash amounts relating
to the Loans that shall at the time be held by the Servicer and to be deposited
by it in the Custodial Account, or that have been deposited by the Servicer in
the Custodial Account or thereafter received by the Servicer with respect to the
Loans. All reasonable costs and expenses (including, but not limited to,
attorneys' fees) incurred in connection with amending this Servicing Agreement
to reflect such succession as Servicer pursuant to this Section 7.01 shall be
paid by the predecessor Servicer (or if the predecessor Servicer is the
Indenture Trustee, the initial Servicer) upon presentation of reasonable
documentation of such costs and expenses.
Notwithstanding any termination of the activities of the Servicer
hereunder, the Servicer shall be entitled to receive, out of any late collection
of a payment on a Loan which was due prior to the notice terminating the
Servicer's rights and obligations hereunder and received after such notice, that
portion to which the Servicer would have been entitled pursuant to Sections 3.03
and 3.09 as well as its Servicing Fee in respect thereof, and any other amounts
payable to the Servicer hereunder the entitlement to which arose prior to the
termination of its activities hereunder.
Notwithstanding the foregoing, a delay in or failure of performance
under Section 7.01(i) or under Section 7.01(ii) after the applicable grace
periods specified in such Sections, shall not constitute a Servicing Default if
such delay or failure could not be prevented by the exercise of reasonable
diligence by the Servicer and such delay or failure was caused by an act of God
or the public enemy, acts of declared or undeclared war, public disorder,
rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes,
earthquakes, floods or similar causes. The preceding sentence shall not relieve
the Servicer from using reasonable efforts to perform its respective obligations
in a timely manner in accordance with the terms of this Servicing Agreement and
the Servicer shall provide the Indenture Trustee and the Securityholders with
notice of such failure or delay by it, together with a description of its
efforts to so perform its obligations. The Servicer shall immediately notify the
Indenture Trustee and the Owner Trustee in writing of any Servicing Default.
Section 7.02 Indenture Trustee to Act; Appointment of Successor. (a) On
and after the time the Servicer receives a notice of termination pursuant to
Section 7.01 or sends a notice pursuant to Section 6.04, the Indenture Trustee
shall be the successor in all respects to the Servicer in its capacity as
servicer under this Servicing Agreement and the transactions set forth or
provided for herein and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof. Nothing in this Servicing Agreement or in the Trust Agreement shall be
construed to permit or require the Indenture Trustee to (i) succeed to the
responsibilities, duties and liabilities of the initial Servicer in its capacity
as Sponsor under the Loan Purchase Agreement, (ii) be responsible or accountable
for any act or omission of the Servicer prior to the issuance of a notice of
termination hereunder, (iii) require or obligate the Indenture Trustee, in its
capacity as successor Servicer, to purchase, repurchase or substitute any Loan,
(iv) fund any losses on any Permitted Investment directed by any other Servicer
or (v) be responsible for the representations and warranties of the Servicer. As
compensation therefor, the Indenture Trustee shall be entitled to such
compensation as the Servicer would have been entitled to hereunder if no such
notice of termination had been given. Notwithstanding the above, (i) if the
Indenture Trustee is unwilling to act as successor Servicer, or (ii) if the
Indenture Trustee is legally unable so to act, the Indenture Trustee may (in the
situation described in clause (i)) or shall (in the situation described in
clause (ii)) appoint or petition a court of competent jurisdiction to appoint
any established housing and home finance institution, bank or other mortgage
loan or home equity loan servicer having a net worth of not less than
$10,000,000 as the successor to the Servicer hereunder in the assumption of all
or any part of the responsibilities, duties or liabilities of the Servicer
hereunder; provided that the appointment of any such successor Servicer will not
result in the qualification, reduction or withdrawal of the ratings assigned to
the Securities by the Rating Agencies. Pending appointment of a successor to the
Servicer hereunder, unless the Indenture Trustee is prohibited by law from so
acting, the Indenture Trustee shall act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the successor
shall be entitled to receive compensation out of payments on Loans in an amount
equal to the compensation which the Servicer would otherwise have received
pursuant to Section 3.09 (or such lesser compensation as the Indenture Trustee
and such successor shall agree). The appointment of a successor Servicer shall
not affect any liability of the predecessor Servicer which may have arisen under
this Servicing Agreement prior to its termination as Servicer (including,
without limitation, the obligation to purchase Loans pursuant to Section 3.01 or
to pay any deductible under an insurance policy pursuant to Section 3.04), nor
shall any successor Servicer be liable for any acts or omissions of the
predecessor Servicer or for any breach by such Servicer of any of its
representations or warranties contained herein or in any related document or
agreement. The Indenture Trustee and such successor shall take such action,
consistent with this Servicing Agreement, as shall be necessary to effectuate
any such succession.
(b) Any successor, including the Indenture Trustee, to the Servicer as
servicer shall during the term of its service as servicer (i) continue to
service and administer the Loans for the benefit of the Securityholders and (ii)
maintain in force a policy or policies of insurance covering errors and
omissions in the performance of its obligations as Servicer hereunder and a
fidelity bond in respect of its officers, employees and agents to the same
extent as the Servicer is so required pursuant to Section 3.13.
(c) Any successor Servicer, including the Indenture Trustee, shall not
be deemed in default or to have breached its duties hereunder if the predecessor
Servicer shall fail to deliver any required deposit to the Custodial Account or
otherwise cooperate with any required servicing transfer or succession
hereunder.
Section 7.03 Notification to Securityholders. Upon any termination of
or appointment of a successor to the Servicer pursuant to this Article VII or
Section 6.04, the Indenture Trustee shall give prompt written notice thereof to
the Securityholders, the Issuing Entity and each Rating Agency.
ARTICLE VIII
Miscellaneous Provisions
Section 8.01 Amendment. This Servicing Agreement may be amended from
time to time by the parties hereto, provided that any amendment be accompanied
by a letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to the Securities, and the
consent of the Indenture Trustee. Promptly after the execution by the Servicer,
the Issuing Entity and the Indenture Trustee of any amendment of this Servicing
Agreement pursuant to this Section 8.01, the Indenture Trustee shall provide the
Custodian with written copies thereof. Any failure of the Indenture Trustee to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amendment.
Section 8.02 Governing Law. THIS SERVICING 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.
Section 8.03 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 certified mail, return receipt requested, to (a) in
the case of the Servicer, [Name of Servicer],
__________________________________, Attention: ___________, (b) in the case of
▇▇▇▇▇'▇, Home Mortgage Loan Monitoring Group, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (c) in the case of Standard & Poor's, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ st 10041, Attention: Residential Mortgage Surveillance
Group, (d) in the case of the Owner Trustee, [Name of Owner Trustee],
____________________________________, Attention: _______ Trust Series ____-__,
(e) in the case of the Issuing Entity, to ______ Trust Series ____-__, c/o Owner
Trustee, [Name of Owner Trustee], ______________________________________,
Attention: ______ Trust Series ____- __, (f) in the case of the Indenture
Trustee, [Name of Indenture Trustee], ___________________________, Attention:
_______________ and (g) in the case of the Underwriter, at [Name of
Underwriter], _____________________________, Attention: ________________; or, as
to each party, at such other address as shall be designated by such party in a
written notice to each other party. Any notice required or permitted to be
mailed to a Securityholder shall be given by first class mail, postage prepaid,
at the address of such Securityholder as shown in the Register. Any notice so
mailed within the time prescribed in this Servicing Agreement shall be
conclusively presumed to have been duly given, whether or not the Securityholder
receives such notice. Any notice or other document required to be delivered or
mailed by the Indenture Trustee to any Rating Agency shall be given on a
reasonable efforts basis and only as a matter of courtesy and accommodation and
the Indenture Trustee shall have no liability for failure to delivery such
notice or document to any Rating Agency.
Section 8.04 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Servicing 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 Servicing Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Servicing
Agreement or of the Securities or the rights of the Securityholders thereof.
Section 8.05 Third-Party Beneficiaries. This Servicing Agreement will
inure to the benefit of and be binding upon the parties hereto, the
Securityholders, the Owner Trustee and their respective successors and permitted
assigns. Except as otherwise provided in this Servicing Agreement, no other
Person will have any right or obligation hereunder.
Section 8.06 Counterparts. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 8.07 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 8.08 Termination Upon Purchase by the Servicer or Liquidation
of All Loans; Partial Redemption. (a) The respective obligations and
responsibilities of the Servicer, the Issuing Entity and the Indenture Trustee
created hereby shall terminate upon the last action required to be taken by the
Issuing Entity pursuant to the Trust Agreement and by the Indenture Trustee
pursuant to the Indenture following the earlier of:
(i) the date on or before which the Indenture or Trust
Agreement is terminated, or
(ii) the purchase by the Servicer from the Issuing Entity of
all Loans and all property acquired in respect of any Loan at a price
equal to the Termination Price.
The right of the Servicer to purchase the assets of the Issuing Entity
pursuant to clause (ii) above on any Payment Date is conditioned upon the
Aggregate Loan Balance (after applying payments received in the related
Collection Period) as of such Payment Date being less than ten percent of the
Aggregate Loan Balance as of the Cut-off Date. If such right is exercised by the
Servicer, the Servicer shall deposit the Termination Price calculated pursuant
to clause (ii) above with the Indenture Trustee pursuant to Section 4.10 of the
Indenture and, upon the receipt of such deposit, the Indenture Trustee or
Custodian shall release to the Servicer, the files pertaining to the Loans being
purchased.
(b) The Servicer, at its expense, shall prepare and deliver to the
Indenture Trustee for execution, at the time the Loans are to be released to the
Servicer, appropriate documents assigning each such Loan from the Indenture
Trustee or the Issuing Entity to the Servicer or the appropriate party.
(c) The Servicer shall give the Indenture Trustee not less than seven
Business Days' prior written notice of the Payment Date on which the Servicer
anticipates that the final distribution will be made to Noteholders. Notice of
any termination, specifying the anticipated Final Scheduled Payment Date or
other Payment Date (which shall be a date that would otherwise be a Payment
Date) upon which the Noteholders may surrender their Notes to the Indenture
Trustee (if so required by the terms hereof) for payment of the final
distribution and cancellation, shall be given promptly by the Servicer to the
Indenture Trustee specifying:
(i) the anticipated Final Scheduled Payment Date or other
Payment Date upon which final payment of the Notes is anticipated to be
made upon presentation and surrender of Notes at the office or agency
of the Indenture Trustee therein designated; and
(ii) the amount of any such final payment, if known.
Section 8.09 Certain Matters Affecting the Indenture Trustee. For all
purposes of this Servicing Agreement, in the performance of any of its duties or
in the exercise of any of its powers hereunder, the Indenture Trustee shall be
subject to and entitled to the benefits of Article VI of the Indenture.
Section 8.10 Owner Trustee Not Liable for Related Documents. The
recitals contained herein shall be taken as the statements of the Depositor, and
the Owner Trustee assumes no responsibility for the correctness thereof. The
Owner Trustee makes no representations as to the validity or sufficiency of this
Servicing Agreement, of any Basic Document or of the Certificates (other than
the signatures of the Owner Trustee on the Certificates) or the Notes, or of any
Related Documents. The Owner Trustee shall at no time have any responsibility or
liability with respect to the sufficiency of the Owner Trust Estate or its
ability to generate the payments to be distributed to Certificateholders under
the Trust Agreement or the Noteholders under the Indenture, including, the
compliance by the Depositor or the Sponsor with any warranty or representation
made under any Basic Document or in any related document or the accuracy of any
such warranty or representation, or any action of the Certificate Paying Agent,
the Certificate Registrar or the Indenture Trustee taken in the name of the
Owner Trustee.
It is expressly understood and agreed by the parties hereto that with
respect to the execution of this Agreement by [Name of Owner Trustee] (the
"Trust Company") for the Issuing Entity (a) this Agreement is executed and
delivered by the Trust Company, not individually or personally, but solely as
Owner Trustee, in the exercise of the powers and authority conferred and vested
in it, pursuant to the Owner Trust Agreement, (b) each of the representations,
undertakings and agreements herein made on the part of the Issuing Entity is
made and intended not as personal representations, undertakings and agreements
by the Trust Company but is made and intended for the purpose for binding only
the Issuing Entity, (c) nothing herein contained shall be construed as creating
any liability on the Trust Company, individually or personally, to perform any
covenant either expressed or implied contained herein, all such liability, if
any, being expressly waived by the parties hereto and by any person claiming by,
through or under the parties hereto, and (d) under no circumstances shall the
Trust Company be personally liable for the payment of any indebtedness or
expenses of the Issuing Entity or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
Issuing Entity under this Agreement or any other related documents.
IN WITNESS WHEREOF, the Servicer, the Indenture Trustee and the Issuing
Entity have caused this Servicing Agreement to be duly executed by their
respective officers or representatives all as of the day and year first above
written.
[NAME OF SERVICER],
as Servicer
By:________________________________
Name:
Title:
TRUST SERIES
___________________________________
By: [NAME OF OWNER TRUSTEE], not in its
individual capacity but solely as Owner Trustee
By:________________________________
Name:
Title:
[NAME OF INDENTURE TRUSTEE],
as Indenture Trustee
By:________________________________
Name:
Title:
EXHIBIT A
LOAN SCHEDULE
(TO BE PROVIDED UPON REQUEST)
EXHIBIT B
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PREMISES:
That [Name of Indenture Trustee], as Indenture Trustee (the "Trustee"), under
the Indenture (the "Indenture") among ________________________________________
and the Indenture Trustee, a national banking association organized and existing
under the laws of the State of ________, and having its principal office located
at_____________________________________________, hath made, constituted and
appointed, and does by these presents make, constitute and appoint
________________________, a corporation organized and existing under the laws of
the State of ______________, its true and lawful Attorney-in-Fact, with full
power and authority to sign, execute, acknowledge, deliver, file for record, and
record any instrument on its behalf and to perform such other act or acts as may
be customarily and reasonably 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) creating a trust,
second lien, third lien or an estate in fee simple interest in real property
securing a Loan and promissory notes secured thereby (the "Mortgage Notes") for
which the undersigned is acting as Indenture Trustee for various Securityholders
(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 [Name of Servicer] is acting as
Servicer pursuant to a Servicing Agreement, dated as of ____________ 1, ____
(the "Servicing Agreement").
This appointment shall apply only to transactions which the Trustee is
authorized to enter into under the Indenture, but in no event shall apply to any
transactions other than the following enumerated transactions only:
(1) The modification or re-recording of a Mortgage or Deed of Trust,
where said modification or rerecording is 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 and said modification or re-recording, in either instance, does not
adversely affect the lien of the Mortgage or Deed of Trust as insured.
(2) The subordination of the lien of a Mortgage or Deed of Trust to an
easement in favor of a public utility company or 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 of requests to trustees to accomplish same.
(3) 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) Statements of breach or non-performance;
c) Notices of default;
d) Cancellations/rescissions of notices of default and/or notices
of sale;
e) The taking of a deed in lieu of foreclosure; and
f) Such other documents and actions as may be necessary under the
terms of the Mortgage, Deed of Trust or state law to
expeditiously complete said transactions.
(4) 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.
(5) The completion of loan assumption agreements.
(6) The full satisfaction/release of a Mortgage or Deed of Trust
or full reconveyance upon payment and discharge of all sums
secured thereby, including, without limitation, cancellation
of the related Mortgage Note.
(7) The assignment of any Mortgage or Deed of Trust and the
related Mortgage Note, in connection with the repurchase of
the Loan secured and evidenced thereby.
(8) 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 endorsement of the related Mortgage Note.
(9) The modification or re-recording of a Mortgage or Deed of
Trust, where said modification or rerecording is for the
purpose of any modification pursuant to Section 3.01 of the
Servicing Agreement.
(10) The subordination of the lien of a Mortgage or Deed of Trust,
where said subordination is in connection with any
modification pursuant to Section 3.01 of the Servicing
Agreement, and the execution of partial satisfactions/releases
in connection with such same Section 3.01.
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 lawfully do or cause
to be done by authority hereof.
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 has not been
revoked unless an instrument of revocation has been made in writing by the
undersigned.
[NAME OF INDENTURE TRUSTEE], not in its
individual capacity, but solely as Indenture
Trustee under the Agreements and the
Indentures.
Name: __________________________ Name: ____________________________
Title:__________________________ Title: ___________________________
STATE OF )
S.
COUNTY OF )
On this __ day of ____________, ____, before me the undersigned, Notary
Public of said State, personally appeared _______________________________ and
_____________________ personally known to me to be duly authorized officers of
[Name of Indenture Trustee] that executed the within instrument and personally
known to me to be the persons who executed the within instrument on behalf of
[Name of Indenture Trustee] therein named, and acknowledged to me such [Name of
Indenture Trustee] executed the within instrument pursuant to its by-laws.
WITNESS my hand and official seal.
___________________________________
Notary Public in and for the
State of __________________________
After recording, please mail to:
_______________________________
_______________________________
_______________________________
Attn:
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: [Custodian]
Re: Servicing Agreement, dated as of ____________ 1, ____, among
[Name of Indenture Trustee], as Indenture Trustee, ______
Trust Series ____-__, as Issuing Entity, and [Name of
Servicer], as Servicer
In connection with the administration of the Loans held by you as the
Custodian on behalf of the Indenture Trustee under the Custodial Agreement,
dated as of _________ 1, ____, among the Indenture Trustee, and [Name of
Custodian], we request the release, and acknowledge receipt, of the (Custodial
File/[specify documents]) for the Loan described below, for the reason
indicated.
Mortgagor's Name Address & ZIP Code:
Loan Number:
Reason For Requesting Documents (check one)
___ 1. Loan Paid in Full (The undersigned hereby certifies
that all amounts received in connection therewith
have been credited to the account of the Indenture
Trustee.)
___ 2. Loan Liquidated by ____________________ (The
undersigned hereby certifies that all proceeds of
foreclosure, insurance, condemnation or other
liquidation have been finally received and credited
to the Custodial Account.)
___ 3. Loan in Foreclosure
___ 4. Other (explain)
If box 1 or 2 above is checked, and if all or part of the Custodial
File was previously released to us, please release to us our previous request
and receipt on file with you, as well as any additional documents in your
possession relating to the specified Loan.
If box 3 or 4 above is checked, upon our return of all of the above
documents to you as the Custodian, please acknowledge your receipt by signing in
the space indicated below, and returning this form.
[NAME OF SERVICER], as Servicer
______________________________________
By:
Name:
Title:
Date:
Acknowledgment of Documents returned to the Custodian:
[NAME OF CUSTODIAN], as Custodian
______________________________________
By:
Name:
Title:
Date:
EXHIBIT D
CERTIFICATE PURSUANT TO SECTION 3.08
(Provided Upon Request)
EXHIBIT E
SERVICING CRITERIA TO BE ADDRESSED
IN ASSESSMENT OF COMPLIANCE
Definitions
Primary Servicer - transaction party having borrower contact Master Servicer -
aggregator of pool assets
Securities Administrator - waterfall calculator (may be the Trustee, or may be
the Master Servicer) Back-up Servicer - named in the transaction (in the event a
Back up Servicer becomes the Primary Servicer, follow Primary Servicer
obligations) Custodian - safe keeper of pool assets Paying Agent - distributor
of funds to ultimate investor Trustee - fiduciary of the transaction
Note: The definitions above describe the essential function that the party
performs, rather than the party's title. So, for example, in a particular
transaction, the trustee may perform the "paying agent" and "securities
administrator" functions, while in another transaction, the securities
administrator may perform these functions.
Where there are multiple checks for criteria the attesting party will identify
in their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
Key: X - obligation
[X] - under consideration for obligation
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Reg AB Reference Servicing Criteria Primary Master Securities Custodian Paying Trustee
Servicer Servicer Admin Agent
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
General Servicing Considerations
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Policies and procedures are instituted X X X X
to monitor any performance or other (Sec. 9.01)
triggers and events of default in
accordance with the transaction
1122(d)(1)(i) agreements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
If any material servicing activities X X X
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) servicing activities.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Any requirements in the transaction
agreements to maintain a back-up
servicer for the Pool Assets are
1122(d)(1)(iii) maintained.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
A fidelity bond and errors and X X
omissions policy is in effect on the
party participating in the servicing
function throughout the reporting
period in the amount of coverage
required by and otherwise in accordance
with the terms of the transaction
1122(d)(1)(iv) agreements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Cash Collection and Administration
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Payments on pool assets are deposited X X X X
into the appropriate custodial bank
accounts and related bank clearing
accounts no more than two business days
following receipt, or such other number
of days specified in the transaction
1122(d)(2)(i) agreements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Disbursements made via wire transfer on X X X X X
behalf of an obligor or to an investor
1122(d)(2)(ii) are made only by authorized personnel.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
advances of funds or guarantees X X X X X
regarding collections, cash flows or (Sec. 8.01)
distributions, and any interest or
other fees charged for such advances,
are made, reviewed and approved as
specified in the transaction
1122(d)(2)(iii) agreements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
The related accounts for the [X] X
transaction, such as cash reserve
accounts or accounts established as a
form of over collateralization, are
separately maintained (e.g., with
respect to commingling of cash) as set
1122(d)(2)(iv) forth in the transaction agreements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Each custodial account is maintained at X X X X
a federally insured depository
institution as set forth in the
transaction agreements. For purposes of
this criterion, "federally insured
depository institution" with respect to
a foreign financial institution means a
foreign financial institution that
meets the requirements of Rule
13k-1(b)(1) of the Securities Exchange
1122(d)(2)(v) Act.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Unissued checks are safeguarded so as X
1122(d)(2)(vi) to prevent unauthorized access.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Reconciliations are prepared on a X X X X X
monthly basis for all asset-backed
securities related bank accounts,
including custodial accounts and
related bank clearing accounts. These
reconciliations are (A) mathematically
accurate; (B) prepared within 30
calendar days after the bank statement
cutoff date, or such other number of
days specified in the transaction
agreements; (C) reviewed and approved
by someone other than the person who
prepared the reconciliation; and (D)
contain explanations for reconciling
items. These reconciling items are
resolved within 90 calendar days of
their original identification, or such
other number of days specified in the
1122(d)(2)(vii) transaction agreements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Investor Remittances and Reporting
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Reports to investors, including those X X X X
to be filed with the Commission, are
maintained in accordance with the
transaction agreements and applicable
Commission requirements. Specifically,
such reports (A) are prepared in
accordance with timeframes and other
terms set forth in the transaction
agreements; (B) provide information
calculated in accordance with the terms
specified in the transaction
agreements; (C) are filed with the
Commission as required by its rules and
regulations; and (D) agree with
investors' or the trustee's records as
to the total unpaid principal balance
and number of Pool Assets serviced by
1122(d)(3)(i) the Servicer.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Amounts due to investors are allocated X X X X X
and remitted in accordance with
timeframes, distribution priority and
other terms set forth in the
1122(d)(3)(ii) transaction agreements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Disbursements made to an investor are X X X X X
posted within two business days to the
Servicer's investor records, or such
other number of days specified in the
1122(d)(3)(iii) transaction agreements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Amounts remitted to investors per the X X X X X
investor reports agree with cancelled
checks, or other form of payment, or
1122(d)(3)(iv) custodial bank statements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Pool Asset Administration
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Collateral or security on pool assets X X
is maintained as required by the
transaction agreements or related pool
1122(d)(4)(i) asset documents.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Pool assets and related documents are X X
safeguarded as required by the
1122(d)(4)(ii) transaction agreements
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Any additions, removals or X X X
substitutions to the asset pool are
made, reviewed and approved in
accordance with any conditions or
requirements in the transaction
1122(d)(4)(iii) agreements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Payments on pool assets, including any X
payoffs, made in accordance with the
related pool asset 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
1122(d)(4)(iv) related pool asset documents.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
The Servicer's records regarding the X
pool assets agree with the Servicer's
records with respect to an obligor's
1122(d)(4)(v) unpaid principal balance.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Changes with respect to the terms or X X
status of an obligor's pool assets
(e.g., loan modifications or re-agings)
are made, reviewed and approved by
authorized personnel in accordance with
the transaction agreements and related
1122(d)(4)(vi) pool asset documents.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Loss mitigation or recovery actions X X
(e.g., forbearance plans, modifications
and deeds in lieu of foreclosure,
foreclosures and repossessions, as
applicable) are initiated, conducted
and concluded in accordance with the
timeframes or other requirements
established by the transaction
1122(d)(4)(vii) agreements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Records documenting collection efforts X
are maintained during the period a pool
asset 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
pool assets including, for example,
phone calls, letters and payment
rescheduling plans in cases where
delinquency is deemed temporary (e.g.,
1122(d)(4)(viii) illness or unemployment).
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Adjustments to interest rates or rates X X
of return for pool assets with variable
rates are computed based on the related
1122(d)(4)(ix) pool asset documents.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Regarding any funds held in trust for X
an obligor (such as escrow accounts):
(A) such funds are analyzed, in
accordance with the obligor's pool
asset 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 pool asset documents
and state laws; and (C) such funds are
returned to the obligor within 30
calendar days of full repayment of the
related pool assets, or such other
number of days specified in the
1122(d)(4)(x) transaction agreements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Payments made on behalf of an obligor X
(such as tax or insurance payments) are
made on or before the related penalty
or expiration dates, as indicated on
the appropriate bills or notices for
such payments, provided that such
support has been received by the
servicer at least 30 calendar days
prior to these dates, or such other
number of days specified in the
1122(d)(4)(xi) transaction agreements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Any late payment penalties in connection X
with any payment to be made on behalf of
an obligor are paid from the Servicer's
funds and not charged to the obligor,
unless the late payment was due to the
1122(d)(4)(xii) obligor's error or omission.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Disbursements made on behalf of an X
obligor are posted within two business
days to the obligor's records maintained
by the servicer, or such other number of
days specified in the transaction
1122(d)(4)(xiii) agreements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Delinquencies, charge-offs and X X X
uncollectible accounts are recognized
and recorded in accordance with the
1122(d)(4)(xiv) transaction agreements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------
Any external enhancement or other X X
support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation
AB, is maintained as set forth in the
1122(d)(4)(xv) transaction agreements.
------------------ ----------------------------------------- --------- ---------- ---------- --------- ------- ------------