Exhibit 99.6
Execution Version
FLOW SERVICING RIGHTS PURCHASE AND SERVICING AGREEMENT
between
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY,
Purchaser
SAXON MORTGAGE SERVICES, INC.,
Servicer
Dated as of December 19, 2005
FIXED AND ADJUSTABLE RATE, RESIDENTIAL MORTGAGE LOANS
Execution Version
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................................1
Section 1.01 Definitions....................................................1
ARTICLE II SALE OF SERVICING RIGHTS; SERVICING..............................15
Section 2.01 Sale of Servicing Rights......................................15
Section 2.02 Purchase Price................................................15
Section 2.03 Servicer to Act as Servicer...................................16
Section 2.04 Liquidation of Mortgage Loans.................................18
Section 2.05 Collection of Mortgage Loan Payments..........................20
Section 2.06 Establishment of and Deposits to Custodial Account............20
Section 2.07 Permitted Withdrawals From Custodial Account..................21
Section 2.08 Establishment of and Deposits to Escrow Account...............22
Section 2.09 Permitted Withdrawals From Escrow Account.....................23
Section 2.10 Payment of Taxes, Insurance and Other Charges.................24
Section 2.11 Protection of Accounts........................................24
Section 2.12 Maintenance of Hazard Insurance...............................25
Section 2.13 Maintenance of Mortgage Impairment Insurance..................26
Section 2.14 Maintenance of Fidelity Bond and Errors and Omissions
Insurance....................................................27
Section 2.15 Inspections...................................................27
Section 2.16 Restoration of Mortgaged Property.............................28
Section 2.17 Title, Management and Disposition of REO Property.............28
Section 2.18 Permitted Withdrawals with respect to REO Property............29
Section 2.19 Reports of Foreclosures and Abandonments of Mortgaged
Property.....................................................29
Section 2.20 Notification of Adjustments...................................30
Section 2.21 Transfer of Servicing.........................................30
Section 2.22 Recordation of Assignments of Mortgage........................30
Section 2.23 Additional Servicing Requirements.............................30
Section 2.24 Credit Reporting..............................................31
ARTICLE III PAYMENTS TO PURCHASER...........................................31
Section 3.01 Remittances...................................................31
Section 3.02 Statements to Purchaser.......................................31
Section 3.03 Advances by Servicer..........................................32
Section 3.04 Charge off and Advance Analysis...............................32
ARTICLE IV GENERAL SERVICING PROCEDURES.....................................33
Section 4.01 Transfers of Mortgaged Property...............................33
Section 4.02 Satisfaction of Mortgages and Release of Mortgage Files.......34
Section 4.03 Servicing Compensation........................................34
Section 4.04 Annual Statement as to Compliance. ..........................35
Section 4.05 Annual Independent Public Accountants' Servicing Report.......35
Section 4.06 Sarbanes Oxley Certification..................................35
Section 4.07 Right to Examine Servicer Records.............................36
Section 4.08 Compliance with ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999................36
ARTICLE V SERVICER TO COOPERATE.............................................36
Section 5.01 Provision of Information......................................36
Section 5.02 Financial Statements; Servicing Facilities....................36
ARTICLE VI TERMINATION......................................................37
Section 6.01 Termination...................................................37
Section 6.02 Transfer Procedures...........................................37
ARTICLE VII BOOKS AND RECORDS...............................................38
Section 7.01 Possession of Servicing Files Prior to the related
Transfer Date................................................38
ARTICLE VIII INDEMNIFICATION AND ASSIGNMENT.................................39
Section 8.01 Indemnification...............................................39
Section 8.02 Limitation on Liability of Servicer and Others................40
Section 8.03 Limitation on Resignation and Assignment by Servicer..........40
Section 8.04 Assignment by Purchaser.......................................41
Section 8.05 Merger or Consolidation of the Servicer.......................42
ARTICLE IX REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER...........42
Section 9.01 Organization and Good Standing; Licensing.....................43
Section 9.02 Authorization; Binding Obligations............................43
Section 9.03 No Consent Required...........................................43
Section 9.04 No Violations.................................................43
Section 9.05 Litigation....................................................43
Section 9.06 Good Title....................................................43
Section 9.07 Compliance with Law...........................................44
Section 9.08 Remedies for Breach of Representations and Warranties.........44
ARTICLE X REPRESENTATIONS AND WARRANTIES OF SERVICER........................44
Section 10.01 Due Organization and Authority................................44
Section 10.02 Ordinary Course of Business...................................45
Section 10.03 No Conflicts..................................................45
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Section 10.04 Ability to Service............................................45
Section 10.05 Ability to Perform............................................45
Section 10.06 No Litigation Pending.........................................45
Section 10.07 No Consent Required...........................................46
Section 10.08 No Untrue Information.........................................46
ARTICLE XI DEFAULT..........................................................46
Section 11.01 Events of Default.............................................46
Section 11.02 Waiver of Defaults............................................48
ARTICLE XII CLOSING.........................................................48
Section 12.01 Closing Documents.............................................48
Section 12.02 Closing Conditions............................................49
ARTICLE XIII MISCELLANEOUS PROVISIONS.......................................49
Section 13.01 Notices.......................................................49
Section 13.02 Waivers.......................................................50
Section 13.03 Entire Agreement; Amendment...................................50
Section 13.04 Execution; Binding Effect.....................................50
Section 13.05 Headings......................................................50
Section 13.06 Applicable Law................................................50
Section 13.07 Relationship of Parties.......................................51
Section 13.08 Severability of Provisions....................................51
Section 13.09 Recordation of Assignments of Mortgage........................51
Section 13.10 Exhibits......................................................51
Section 13.11 Counterparts..................................................51
Section 13.12 No Solicitation...............................................51
Section 13.13 Waiver of Trial by Jury.......................................52
Section 13.14 LIMITATION OF DAMAGES.........................................52
Section 13.15 SUBMISSION TO JURISDICTION; WAIVERS...........................52
ARTICLE XIV COOPERATION OF SERVICER WITH A RECONSTITUTION...................53
ARTICLE XV COMPLIANCE WITH REGULATION AB....................................55
Section 15.01 Intent of the Parties; Reasonableness.........................55
Section 15.02 Additional Representations and Warranties of the Servicer.....55
Section 15.03 Information to Be Provided by the Servicer....................56
Section 15.04 Servicer Compliance Statement.................................60
Section 15.05 Report on Assessment of Compliance and Attestation............60
Section 15.06 Use of Subservicers and Subcontractors........................61
Section 15.07 Indemnification; Remedies.....................................62
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EXHIBITS
EXHIBIT 1 FORM OF TRIAL BALANCE
EXHIBIT 2 FORM OF CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT 3 FORM OF CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT 4 FORM OF ESCROW ACCOUNT CERTIFICATION
EXHIBIT 5 FORM OF ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT 6 FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
EXHIBIT 7 FORM OF OFFICER'S CERTIFICATE
EXHIBIT 8 MORTGAGE LOAN DOCUMENTS
EXHIBIT 9 FORM OF ACKNOWLEDGMENT AGREEMENT
EXHIBIT 10 REPORTING REQUIREMENTS
EXHIBIT 11 FORM OF SERVICING TRANSFER LETTER
EXHIBIT 12 FORM OF ANNUAL CERTIFICATION
EXHIBIT 13 INTENTIONALLY OMITTED
EXHIBIT 14 FORM OF SERVICER ACKNOWLEDGMENT
EXHIBIT 15 SUBPRIME DEFAULT AND REO SERVICING STANDARDS
EXHIBIT 16 REO SERVICING STANDARDS
EXHIBIT 17 FORM OF ANNUAL CERTIFICATION
EXHIBIT 18 SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
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Execution Version
FLOW SERVICING RIGHTS PURCHASE AND SERVICING AGREEMENT
------------------------------------------------------
This Flow Servicing Rights Purchase and Servicing Agreement ("Flow
Servicing Rights Purchase and Servicing Agreement" or "Agreement") is entered
into as of December 19, 2005, by and among SAXON MORTGAGE SERVICES, INC., a
Texas corporation, (the "Servicer") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY, a New
York limited partnership (the "Purchaser").
WHEREAS, the Purchaser has purchased and may, from time to time,
purchase conventional, residential, fixed and adjustable rate, first and
second lien mortgage loans (the "Mortgage Loans") to be delivered as whole
loans on a servicing released basis pursuant to the Purchase Agreement by and
between the Purchaser and Seller (as defined below); and
WHEREAS, the Servicer regularly services residential mortgage
loans and has agreed to service the Mortgage Loans that become subject to this
Agreement, and the parties desire to provide the terms and conditions of such
servicing by the Servicer; and
WHEREAS, the Purchaser desires, from time to time, to sell,
transfer and assign to the Servicer all of its right, title and interest in
and to the Servicing Rights (as hereinafter defined) with respect to the
Mortgage Loans and the Servicer, from time to time, desires to purchase such
Servicing Rights.
NOW, THEREFORE, in consideration of the mutual premises and
agreements set forth herein and for other good and valuable consideration, the
receipt and the sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. The following terms are defined as
follows:
Accepted Servicing Practices: With respect to any Mortgage Loan or
REO Property, each of (a) those mortgage servicing practices (including
collection procedures) of prudent mortgage lending institutions which service
mortgage loans of the same type as such Mortgage Loan in the jurisdiction
where the related Mortgaged Property is located and in compliance with all
applicable federal, state and local laws, and (b) with respect to any actions
taken pursuant to Sections 2.03, 2.04, 2.16 and 2.17 hereof, those servicing,
collection, resolution or disposition practices that are customarily
undertaken to maximize recoveries with respect to the Mortgage Loan or REO
Property in accordance with ▇▇▇▇▇▇ Mae Guides.
Acknowledgment Agreement: The document substantially in the form
of Exhibit 9, to be executed by the Purchaser, the Servicer and the Servicer
in connection with the sale and purchase of each Servicing Rights Package.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan
purchased pursuant to the Purchase Agreement.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Amortization Fraction: With respect to each Mortgage Loan, (a)
1.00 for any repurchase made during the first year following the Transfer
Date, (b) 0.83 for any repurchase made during the second year following the
Transfer Date, (c) 0.67 for any repurchase made during the third year
following the Transfer Date, (d) 0.50 for any repurchase made during the
fourth year following the Transfer Date, (e) 0.33 for any repurchase made
during the fifth year following the Transfer Date, (f) 0.17 for any repurchase
made during the sixth year following the Transfer Date and (g) 0.00 for any
repurchase made after the sixth anniversary of the Transfer Date.
Ancillary Income: All income derived from the Mortgage Loans other
than payments of principal, interest and Escrow Payments (excluding Servicing
Fees and prepayment penalties attributable to the Mortgage Loans), including
but not limited to interest received on funds deposited in the Custodial
Account or any Escrow Account (subject to applicable law), all late charges,
assumption fees, escrow account benefits, modification fees, if any,
reinstatement fees, fees received with respect to checks on bank drafts
returned by the related bank for insufficient funds, assumption fees and
similar types of fees arising from or in connection with any Mortgage Loan to
the extent not otherwise payable to the Mortgagor under applicable law or
pursuant to the terms of the related Mortgage Note.
Assignment, Assumption, and Recognition Agreement: The document
substantially in the form of Exhibit 6, to be executed by the Purchaser, the
Servicer, and the assignee of the Purchaser in connection with the transfer,
conveyance, grant, sale or assignment, of a Mortgage Loan excluding the
Servicing Rights related thereto.
Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of
the Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the sale of the Mortgage to the Purchaser.
Best's: The current Best's Key Rating Guide.
BPO: A broker price opinion.
Business Day: Any day other than (i) a Saturday or Sunday, or (ii)
a day on which banking and savings and loan institutions in (a) the States of
New York or New Jersey, or (b) the state in which the Servicer's servicing
operations are located.
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Code: Internal Revenue Code of 1986, as amended.
Commission: The United States Securities and Exchange Commission.
Commitment Letter: With respect to each Servicing Rights Package,
that certain letter agreement entered into between Purchaser and the Servicer
setting forth certain business terms during the period the Mortgage Loans are
subject to this Agreement and when the Mortgage Loans are subject to a
Reconstitution Agreement for the Servicing Rights Package to be sold hereunder
as of the related Transfer Date.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Custodial Account: The separate account or accounts created and
maintained pursuant to Section 2.06.
Custodial Agreement: The agreement governing the retention of the
originals of each Mortgage Note, Mortgage, Assignment of Mortgage and other
Mortgage Loan Documents.
Custodian: The custodian of the Mortgage Loan Documents as
specified under the related Custodial Agreement.
Cut-off Date: Means as to each Servicing Rights Package, the date
or dates set forth in the related Acknowledgement Agreement.
Data File: Shall have the meaning set forth in Section 3.02.
Data File Delivery Date: Shall have the meaning set forth in
Section 3.02.
Depositor: The depositor, as such term is defined in Regulation
AB, with respect to any Securitization Transaction.
Determination Date: The last day of the month preceding the
related Remittance Date.
Due Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to each Remittance Date, the period
commencing on the first day of the month preceding the month of the Remittance
Date and ending in the last day of the month preceding the Remittance Date.
Eligible Investments: Any one or more of the obligations and
securities listed below which investment provides for a date of maturity not
later than one day prior to the Remittance Date in each month (or such other
date as permitted under this Agreement):
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(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America or any agency or instrumentality of the United States of America
the obligations of which are backed by the full faith and credit of the
United States of America ("Direct Obligations");
(ii) federal funds, demand and time deposits in, certificates
of deposits of, or bankers' acceptances issued by, any depository
institution or trust company (including U.S. subsidiaries of foreign
depositories) incorporated or organized under the laws of the United
States of America or any state thereof and subject to supervision and
examination by federal or state banking authorities, so long as at the
time of such investment or the contractual commitment providing for such
investment the commercial paper or other short-term debt obligations of
such depository institution or trust company (or, in the case of a
depository institution or trust company which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt or deposit obligations of such holding company or
deposit institution, as the case may be) have been rated by each Rating
Agency in its highest short-term rating category or one of its two
highest long-term rating categories;
(iii) repurchase agreements collateralized by Direct
Obligations or securities guaranteed by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac with
any registered broker/dealer subject to Securities Investors' Protection
Corporation jurisdiction or any commercial bank insured by the FDIC, if
such broker/dealer or bank has an uninsured, unsecured and unguaranteed
obligation rated by each Rating Agency in its highest short-term rating
category;
(iv) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States of
America or any state thereof which have a credit rating from each Rating
Agency, at the time of investment or the contractual commitment
providing for such investment, at least equal to one of the two highest
long-term credit rating categories of each Rating Agency; provided,
however, that securities issued by any particular corporation will not
be Eligible Investments to the extent that investment therein will cause
the then outstanding principal amount of securities issued by such
corporation to exceed 20% of the aggregate principal amount of all
Eligible Investments in the Custodial Accounts and the Escrow Accounts;
provided, further, that such securities will not be Eligible Investments
if they are published as being under review with negative implications
from either Rating Agency;
(v)commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand
or on a specified date not more than 180 days after the date of issuance
thereof) rated by each Rating Agency in its highest short-term rating
category;
(vi) certificates or receipts representing direct ownership
interests in future interest or principal payments on obligations of the
United States of America or its agencies or instrumentalities (which
obligations are backed by the full faith and credit of the United States
of America) held by a custodian in safekeeping on behalf of the holders
of such receipts; and
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(vii) any other demand, money market, common trust fund or time
deposit or obligation, or interest-bearing or other security or
investment rated in the highest rating category by each Rating Agency;
provided, however, that (a) any such instrument shall be
acceptable to the Rating Agencies, and (b) no such instrument shall be an
Eligible Investment if such instrument evidences either (i) a right to receive
only interest payments with respect to the obligations underlying such
instrument, or (ii) both principal and interest payments derived from
obligations underlying such instrument and the principal and interest payments
with respect to such instrument provide a yield to maturity of greater than
120% of the yield to maturity at par of such underlying obligations.
Errors and Omissions Insurance Policy: An errors and omissions
insurance policy to be maintained by the Servicer pursuant to Section 2.14.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 2.08.
Escrow Payment: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by the Mortgagor with the mortgagee pursuant to the Mortgage or any other
document.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 11.01.
Exchange Act: The Securities Exchange Act of 1934, as amended.
▇▇▇▇▇▇ Mae: The Federal National Mortgage Association, or any
successor thereto.
▇▇▇▇▇▇ ▇▇▇ Guides: The ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇' Guide and the ▇▇▇▇▇▇
▇▇▇ Servicers' Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Fidelity Bond: A fidelity bond to be maintained by the Servicer
pursuant to Section 2.14.
Fitch: Fitch, Inc., or its successor in interest.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to this Agreement.
Foreclosure Commencement: The delivery of the applicable file to
the Servicer's foreclosure counsel for initiation of foreclosure proceedings.
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▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which
amount is added to the Index in accordance with the terms of the related
Mortgage Note to determine on each Interest Rate Adjustment Date the Mortgage
Interest Rate for such Mortgage Loan.
High Cost Loan: A Mortgage Loan classified as (a) a "high cost"
loan under the Home Ownership and Equity Protection Act of 1994, as amended,
or (b) a "high cost," "threshold," "covered" (provided however the "covered"
classification does not apply to loans defined under the New Jersey Home
Ownership Act of 2002 ("NJHOA") as a "covered home loan" provided further that
such "covered home loan" is not also defined as a "high-cost home loan" under
NJHOA), "predatory" or similar loan under any other applicable state, federal
or local law (or a similarly classified loan using different terminology under
a law imposing heightened regulatory scrutiny or additional legal liability
for residential mortgage loans having high interest rates, points and/or
fees).
HOEPA Loan: A Mortgage Loan which (a) the Purchaser has identified
to the Servicer in the Mortgage Loan Schedule as being subject to the Home
Ownership and Equity Protection Act of 1994 ("HOEPA"), or (b) which the
Servicer discovers is subject to HOEPA.
Index: With respect to each Adjustable Rate Mortgage Loan, the
index set forth in the related Mortgage Note.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds
of insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Interest Rate Adjustment Date: With respect to each Adjustable
Rate Mortgage Loan, the date, specified in the related Mortgage Note and the
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Lifetime Rate Cap: The provision of each Mortgage Note related to
an Adjustable Rate Mortgage Loan which provides for an absolute maximum
Mortgage Interest Rate thereunder. The Mortgage Interest Rate during the terms
of each Adjustable Rate Mortgage Loan shall not at any time exceed the
Mortgage Interest Rate at the time of origination of such Adjustable Rate
Mortgage Loan by more than the amount per annum set forth on the Mortgage Loan
Schedule.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or
assignment of such Mortgage Loan, trustee's sale, foreclosure sale or
otherwise, or the sale of the related Mortgaged Property if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the outstanding principal amount of the
Mortgage Loan, to the lesser of (a) the appraised value of the Mortgaged
Property at origination or (b) if the Mortgage
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Loan was made to finance the acquisition of the related Mortgaged Property,
the purchase price of the Mortgaged Property.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Monthly Remittance Advice: As described in Section 3.02.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc., and any successor
thereto.
Mortgage: The mortgage, deed of trust or other instrument securing
a Mortgage Note, which creates a first or second lien, as applicable, on an
unsubordinated estate in fee simple in real property securing the Mortgage
Note; except that with respect to real property located in jurisdictions in
which the use of leasehold estates for residential properties is a
widely-accepted practice, the mortgage, deed of trust or other instrument
securing the Mortgage Note may secure and create a first or second lien, as
applicable, upon a leasehold estate of the Mortgagor.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to as the Mortgage File in Exhibit 9 annexed hereto, and any
additional documents required to be added to the Mortgage File pursuant to
this Agreement.
Mortgage Impairment Insurance Policy: A mortgage impairment or
blanket hazard insurance policy as described in Section 2.13.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan the Servicing Rights of
which are sold in a Servicing Rights Package pursuant to this Agreement, as
identified on the Mortgage Loan Schedule, which Mortgage Loan includes without
limitation the Mortgage File, the Monthly Payments, Principal Prepayments,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, Servicing
Rights and all other rights, benefits, proceeds and obligations arising from
or in connection with such Mortgage Loan, excluding replaced or repurchased
mortgage loans.
Mortgage Loan Documents: The documents listed on Exhibit 8
attached hereto pertaining to any Mortgage Loan.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the annual rate of interest remitted to the Purchaser, which shall be equal to
the Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage Loan Schedule: The schedule of Mortgage Loans with
respect to a Servicing Rights Package, setting forth the following
information, to the extent available, with respect to each Mortgage Loan: (1)
the Seller's Mortgage Loan identifying number; (2) the Mortgagor's name; (3)
the street address of the Mortgaged Property including the city, state and zip
code; (4) a code indicating whether the Mortgaged Property is owner-occupied,
a second
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home or investment property; (5) the number and type of residential units
constituting the Mortgaged Property (i.e. a single family residence, a 2-4
family residence, a unit in a condominium project or a unit in a planned unit
development, manufactured housing); (6) the original months to maturity or the
remaining months to maturity from the related Cut-off Date, in any case based
on the original amortization schedule and, if different, the maturity
expressed in the same manner but based on the actual amortization schedule;
(7) the Loan-to-Value Ratio at origination; (8) with respect to First Lien
Loans, the LTV and with respect to Second Lien Loans, the CLTV; (9) the
Mortgage Interest Rate as of the related Cut-off Date; (10) the date on which
the Monthly Payment was due on the Mortgage Loan and, if such date is not
consistent with the Due Date currently in effect, such Due Date; (11) the
stated maturity date; (12) the amount of the Monthly Payment as of the related
Cut-off Date; (13) the last payment date on which a Monthly Payment was
actually applied to pay interest and the outstanding principal balance; (14)
the original principal amount of the Mortgage Loan; (15) the principal balance
of the Mortgage Loan as of the close of business on the related Cut-off Date,
after deduction of payments of principal due and collected on or before the
related Cut-off Date; (16) with respect to Adjustable Rate Mortgage Loans, the
Interest Rate Adjustment Date; (17) with respect to Adjustable Rate Mortgage
Loans, the Gross Margin; (18) with respect to Adjustable Rate Mortgage Loans,
the Lifetime Rate Cap under the terms of the Mortgage Note; (19) with respect
to Adjustable Rate Mortgage Loans, a code indicating the type of Index; (20)
with respect to Adjustable Rate Mortgage Loans, the Periodic Rate Cap under
the terms of the Mortgage Note; (21) with respect to Adjustable Rate Mortgage
Loans, the Periodic Rate Floor under the terms of the Mortgage Note; (22) the
type of Mortgage Loan (i.e., Fixed Rate, Adjustable Rate, First Lien, Second
Lien); (23) a code indicating the purpose of the loan (i.e., purchase, rate
and term refinance, equity take-out refinance); (24) a code indicating the
documentation style (i.e. full, alternative or reduced); (25) the loan credit
classification (as described in the Underwriting Guidelines); (26) whether
such Mortgage Loan provides for a Prepayment Penalty; (27) the Prepayment
Penalty period of such Mortgage Loan, if applicable; (28) a description of the
Prepayment Penalty, if applicable; (29) the Mortgage Interest Rate as of
origination; (30) the credit risk score (FICO score) at origination; (31) the
date of origination; (32) the Mortgage Interest Rate adjustment period; (33)
the Mortgage Interest Rate adjustment percentage; (34) the Mortgage Interest
Rate floor; (35) the Mortgage Interest Rate calculation method (i.e., 30/360,
simple interest, other); (36) a code indicating whether the Mortgage Loan is a
Section 32 Mortgage Loan; (37) a code indicating whether the Mortgage Loan is
assumable; (38) a code indicating whether the Mortgage Loan has been modified;
(39) the one year payment history; (40) the Due Date for the first Monthly
Payment; (41) the original Monthly Payment due; (42) with respect to the
related Mortgagor, the debt-to-income ratio; (43) the Appraised Value of the
Mortgaged Property; (44) the sales price of the Mortgaged Property if the
Mortgage Loan was originated in connection with the purchase of the Mortgaged
Property; (45) the MERS identification number, (46) if the Mortgage Loan has
borrower paid, lender paid or deep primary mortgage insurance coverage and, if
so, (i) the insurer's name, (ii) the policy or certification number, (iii) the
premium rate and (iv) the coverage percentage, (47) with respect to Second
Lien Loans, the outstanding principal balance of the superior lien, (48) a
code indicating whether the Mortgage Loan is a HOEPA Loan, (49) a code
indicating whether the Mortgage Loan is a High Cost Loan, (50) a code
indicating whether the Mortgage Loan is a subject to a buydown, (51) Asset
Verification Flag - Y or N, (52) AVM Type (if applicable), (53) Occupancy -
Primary, 2nd Home or Investment Property, (54) Interest Only - Y or N, if so,
what is the term of
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the Interest Only Period, (55) Amortization term of the loan (original term of
the loan is already listed). With respect to the Mortgage Loans in the
aggregate, the Mortgage Loan Schedule shall set forth the following
information, as of the related Cut-off Date: (1) the number of Mortgage Loans;
(2) the current aggregate outstanding principal balance of the Mortgage Loans;
(3) the weighted average Mortgage Interest Rate of the Mortgage Loans; and (4)
the weighted average maturity of the Mortgage Loans.
The Mortgage Loan Schedule for each Servicing Rights Package shall
be attached as an exhibit to the related Acknowledgment Agreement.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: The real property (or leasehold estate, if
applicable) securing repayment of the debt evidenced by a Mortgage Note.
Mortgagor: The obligor on a Mortgage Note.
Nonrecoverability Analysis: As defined in Section 3.05.
Nonrecoverable Advance: Any Servicing Advance previously made or
proposed to be made in respect of a Mortgage Loan which, in the good faith
judgment of the Servicer, will not or, in the case of a proposed advance,
would not, be ultimately recoverable from related Insurance Proceeds,
Liquidation Proceeds or otherwise from such Mortgage Loan. The determination
by the Servicer that it has made a Nonrecoverable Advance or that any proposed
advance of principal and interest, if made, would constitute a Nonrecoverable
Advance, shall be evidenced by an Officer's Certificate delivered to the
Purchaser.
Officer's Certificate: A certificate signed by a President or Vice
President and by the Treasurer or the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Servicer, and delivered to the
Purchaser.
Opinion of Counsel: A written opinion of counsel, who may be
counsel for the Servicer, reasonably acceptable to the Purchaser, provided
that any Opinion of Counsel relating to (a) the qualification of any account
required to be maintained pursuant to this Agreement as an Eligible Account,
(b) qualification of the Mortgage Loans in a REMIC or (c) compliance with the
REMIC Provisions, must be (unless otherwise stated in such Opinion of Counsel)
an opinion of counsel who (i) is in fact independent of the related Servicer
and any master servicer of the related Mortgage Loans, (ii) does not have any
material direct or indirect financial interest in the related Servicer or any
master servicer of the related Mortgage Loans or in an Affiliate of either and
(iii) is not connected with the related Servicer or any master servicer of the
Mortgage Loans as an officer, employee, director or person performing similar
functions.
Originator: With respect to a Mortgage Loan, the originator of the
related Mortgage Loan.
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Pass-Through Transfer: The direct or indirect sale or transfer of
some or all of the Loans by the Purchaser to a trust to be formed as part of a
publicly offered or privately placed mortgage-backed securities transaction.
Periodic Rate Cap: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute
maximum amount by which the Mortgage Interest Rate therein may increase on an
Interest Rate Adjustment Date above the Mortgage Interest Rate previously in
effect.
Periodic Rate Floor: With respect to each Adjustable Rate Mortgage
Loan, the provision of each Mortgage Note which provides for an absolute
maximum amount by which the Mortgage Interest Rate therein may decrease on an
Interest Rate Adjustment Date below the Mortgage Interest Rate previously in
effect.
Person: Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
Premium Percentage: Has the meaning assigned to such term in the
related Commitment Letter.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal (Northeast
edition).
Principal Prepayment: Any payment or other recovery of principal
on a Mortgage Loan which is received in advance of its scheduled Due Date,
including any prepayment penalty or premium thereon and which is not
accompanied by an amount of interest representing scheduled interest due on
any date or dates in any month or months subsequent to the month of
prepayment.
Principal Prepayment Period: The month preceding the month in
which the related Remittance Date occurs.
Purchase Agreement: The agreement pursuant to which the Purchaser
purchased the Mortgage Loans from the Seller.
Purchase Price: The price calculated in accordance with the
Commitment Letter and paid on the related Transfer Date by the Servicer to the
Purchaser in consideration for the Purchaser selling the related Servicing
Rights Package, as set forth in the related Acknowledgment Agreement.
Purchase Price and Terms Agreement: The letter agreement setting
forth the general terms and conditions of the transactions contemplated
therein, identifying the Mortgage Loans to be purchased by the Purchaser from
Seller, by and between the Purchaser and the Seller. All of the individual
Purchase Price and Terms Agreements (if there are more than one) shall
collectively be referred to as the "Purchase Price and Terms Agreement."
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Qualified Depository: A depository the accounts of which are
insured by the FDIC or is otherwise acceptable to the Rating Agencies.
Qualified Insurer: An insurance company duly qualified as such
under the laws of the states in which the Mortgaged Properties are located,
duly authorized and licensed in such states to transact the applicable
insurance business and to write the insurance provided, and whose claims
paying ability is rated in the highest rating category by any of the Rating
Agencies with respect to primary mortgage insurance and in one of the two
highest rating categories by Best's with respect to hazard and flood insurance
(or such other rating as may be required by a Rating Agency in connection with
a Pass-Through Transfer in order to achieve the desired ratings for the
securities to be issued in connection with such Pass-Through Transfer).
Rating Agency: Any of Fitch, ▇▇▇▇▇'▇ or Standard & Poor's, or
their respective successors designated by the Purchaser.
Reconstitution: Either a Whole Loan Transfer or a Pass-Through
Transfer.
Reconstitution Agreements: As defined in Article 14 hereof.
Reconstitution Date: As defined in Article 14 hereof.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time..
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law
relating to a REMIC, which appear at Section 860A through 860G of Subchapter M
of Chapter 1, Subtitle A of the Code, and related provisions and regulations,
rulings or pronouncements promulgated thereunder, as the foregoing may be in
effect from time to time.
Remittance Date: The 5th day of each month (or if such 5th day is
not a Business Day, the preceding Business Day).
Removal Fee: With respect to any Servicing Right, a price equal to
the product of (i) the Purchase Price, (ii) the Stated Principal Balance as of
the date of removal, and (iii) the applicable percentage as set forth below:
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Number of Months after Transfer Date Applicable Percent
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1 - 12 100%
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13-24 75%
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25-36 50%
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37 -48 25%
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Thereafter 0%
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REO Property: A Mortgaged Property acquired by the Servicer on
behalf of the Purchaser through foreclosure or by deed in lieu of foreclosure,
as described in Section 2.17.
Report: As defined in Section 3.02 hereof.
Repurchase Price: With respect to any Mortgage Loan, a price equal
to (i) the outstanding principal balance of the Mortgage Loan as of the date
of repurchase plus (ii) interest on such outstanding principal balance at the
mortgage interest rate from the date on which interest has last been paid and
distributed to the Purchaser to the date of repurchase, less (y) amounts
received in respect of such repurchased Mortgage Loan which are being held in
the Custodial Account for distribution in connection with such Mortgage Loan
plus (z) any costs and damages incurred by the related trust with respect to
any securitization of the Mortgage Loan in connection with any violation by
such Mortgage Loan of any predatory- or abusive-lending law.
RESPA: Real Estate Settlement Procedures Act, as amended from time
to time.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction. Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or
(2) an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans..
Seller: With respect to each Servicing Rights Package, the Seller
set forth in the related Purchase Agreement and related Purchase Price and
Terms Letter.
Servicer: Saxon Mortgage Services, Inc. or any entity which
services the Mortgage Loans pursuant to this Agreement or its successor in
interest or any successor or assign to or designee of Servicer under this
Agreement as herein provided. Unless the context requires otherwise, all
references to "Servicer" in this Agreement shall be deemed to include such
Servicer's successors in interest, assignees or designees.
Servicer Acknowledgment: A letter agreement, in the form of
Exhibit 17 attached hereto, dated as of the related Servicing Transfer Date
and executed among the Purchaser and the Seller of the Mortgage Loans.
Servicer Employees: As defined in Section 2.14 hereof.
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Servicer Information: As defined in Section 15.07(a)
Servicing Advances: All customary, reasonable and necessary "out
of pocket" costs and expenses (including reasonable attorneys' fees and
disbursements) incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost of (a) the preservation,
restoration and protection of the Mortgaged Property, (b) any fees relating to
any enforcement or judicial proceedings, excluding foreclosures, (c)
foreclosure actions per FNMA attorney fees and costs guidelines, (d) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, (e) taxes, assessments, water
rates, sewer rents and other charges which are or may become a lien upon the
Mortgaged Property, (f) executing and recording instruments of satisfaction,
deeds of reconveyance or Assignments of Mortgage and (g) compliance with the
obligations pursuant to the provisions of this Agreement.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
Servicing Fee: With respect to each Mortgage Loan, the amount of
the annual fee the Purchaser shall pay to the Servicer, which shall, for a
period of one full month, be equal to one-twelfth of the product of (a) the
Servicing Fee Rate and (b) the outstanding principal balance of such Mortgage
Loan at the beginning of the related Due Period. Such fee shall be payable
monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is computed.
The obligation of the Purchaser to pay the Servicing Fee is limited to, and
the Servicing Fee is payable solely from, the interest portion (including
recoveries with respect to interest from Liquidation Proceeds) of such Monthly
Payment collected by the Servicer. The Servicing Fee shall be pro rated in the
event that the Mortgage Loans are serviced for less than a full month at any
time.
Servicing Fee Rate: The rate set forth in the Commitment Letter.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Servicer consisting of originals, if provided, or copies of
all documents in the Mortgage File which are not delivered to the Purchaser,
its designee or the Custodian and copies of the Mortgage Loan Documents.
Servicing Officer: Any officer of the Servicer involved in or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Servicer to the
Purchaser upon request, as such list may from time to time be amended.
Servicing Repurchase Price: With respect to each Mortgage Loan, an
amount equal to the product of (x) the Amortization Fraction and (y) the
product of (i) the Premium Percentage and (ii) the Stated Principal Balance of
such Mortgage Loan at the date of repurchase.
Servicing Rights: Any and all of the following: (a) any and all
rights to service the Mortgage Loans; (b) any payments to or monies received
by the Servicer for servicing the Mortgage Loans; (c) any Ancillary Income
with respect to the Mortgage Loans; (d) all agreements or documents creating,
defining or evidencing any such servicing rights to the extent
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they relate to such servicing rights and all rights of the Servicer
thereunder; (e) any and all rights to and in the Escrow Payments or other
similar payments with respect to the Mortgage Loans and any amounts actually
collected by the Servicer with respect thereto; (f) all accounts and other
rights to payment related to any of the property described in this paragraph;
and (g) any and all documents, files, records, servicing files, servicing
documents, servicing records, data tapes, computer records, or other
information pertaining to the Mortgage Loans or pertaining to the past,
present or prospective servicing of the Mortgage Loans.
Servicing Rights Package: means the Servicing Rights relating to
the Mortgage Loans described on the Mortgage Loan Schedule annexed to the
related Acknowledgment Agreement, to be sold to Servicer by Purchaser on the
related Transfer Date.
Servicing Transfer Letter: A letter agreement, in the form of
Exhibit 11 attached hereto, dated as of the related Servicing Transfer Date
and executed among the Purchaser, the Seller, Servicer and any servicer of the
Mortgage Loans.
Servicing Transfer Schedule: The computer or like records
requested by the Servicer reflecting the status of payments, balances and
other pertinent information with respect to the Mortgage Loans necessary to
service the Mortgage Loans in accordance with this Agreement and the Accepted
Servicing Practices.
Special Deposit Account: An account which the Purchaser and
Servicer agree shall be a special deposit account for the benefit of the
related Purchaser under applicable law.
Standard & Poor's: Standard & Poor's Ratings Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., and any successor thereto.
Stated Principal Balance: As to each Mortgage Loan, (i) the
principal balance of the Mortgage Loan at the related Cut-off Date after
giving effect to payments of principal received on or before such date, minus
(ii) all amounts previously distributed to the Purchaser with respect to the
related Mortgage Loan representing payments or recoveries of principal or
advances in lieu thereof.
Static Pool Information: Static pool information as described in
Item 1105(a)(1)-(3) and 1105(c) of Regulation AB.
Static Pool Party: As defined in Section 15.03(g).
Subcontractor: Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgage-backed securities market) of
Mortgage Loans but performs one or more discrete functions identified in Item
1122(d) of Regulation AB with respect to Mortgage Loans under the direction or
authority of the Company or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Servicer or any Subservicer and is responsible for the performance
(whether directly or through Subservicers or Subcontractors) of a substantial
portion of the material servicing functions
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required to be performed by the Servicer under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation AB.
Tax Service Contract: A paid-in-full, life-of-loan tax service
contract with TransAmerica Real Estate Tax Service, Inc. or such other tax
service provider acceptable to the Servicer, as described in Section 2.10
hereof.
Transaction Servicer: As defined in Section 15.03(c).
Transfer Date: With respect to a Servicing Rights Package, the
date on which (i) the Servicer from time to time shall purchase and the
Purchaser from time to time shall sell the Servicing Rights related to such
Mortgage Loans, and (ii) the physical servicing of the Mortgage Loans in such
Servicing Rights Package is transferred to the Servicer pursuant to this
Agreement or such other date as the Purchaser, the Seller and the Servicer may
mutually agree upon.
Underwriting Guidelines: The underwriting guidelines of the
Originator, as identified or specified in the Purchase Agreement.
Whole Loan Transfer: The sale or transfer by Purchaser of some or
all of the Mortgage Loans in a whole loan or participation format.
ARTICLE II
SALE OF SERVICING RIGHTS; SERVICING
Section 2.01 Sale of Servicing Rights.
Upon the terms and subject to the conditions of this Agreement
effective as of each Transfer Date, Purchaser, simultaneously with the
execution and delivery of the related Acknowledgment Agreement, hereby sells,
assigns, transfers, conveys and delivers to Servicer all of Purchaser's right,
title and interest in and to, and all economic benefit derived from, the
Servicing Rights related to Mortgage Loans in the related Servicing Rights
Package and Servicer hereby purchases and assumes such Servicer and assumes
and assigns the Servicing as of the related Servicing Transfer Date to the
Servicer.
Section 2.02 Purchase Price.
The Purchase Price for the Servicing Rights in each Servicing
Rights Package shall be set forth in the related Acknowledgment Agreement. It
is understood and agreed that the Purchase Price shall be paid by the Servicer
to the Purchaser in consideration for the Purchaser selling the Servicing
Rights in accordance with this Agreement.
The Servicer shall pay to the Purchaser by wire transfer of
immediately available funds to an account designated by the Purchaser in
writing an amount equal to the Purchase Price attributed to each Mortgage Loan
sold on the related Transfer Date.
If, subsequent to the payment of the Purchase Price or the payment
of any other amounts due under this Agreement to either party, the principal
on which the Purchase Price with
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respect to a Mortgage Loan was based is found to be in error, or if, for any
other reason, the Purchase Price or such other amounts are found to be in
error, within five (5) Business Days after the receipt of information
sufficient to provide notice that payment is due, the party benefiting from
the error shall pay to the other party an amount sufficient to correct and
reconcile the Purchase Price or such other amounts and shall provide the other
party with a reconciliation statement and such other documentation sufficient
to reasonably satisfy the other party concerning the accuracy of such
reconciliation.
In connection with the repurchase of a Mortgage Loan by the Seller
from the Purchaser due to a breach of a representation or warranty or other
defect, the Servicer shall be entitled to receive from the Purchaser the
Servicing Repurchase Price. This amount shall be paid by the Purchaser to the
Servicer within ten (10) Business Days of any such repurchase by wire transfer
of immediately available funds to an account designated by the Servicer.
Concurrently with any repurchase and payment described in the
paragraph above, the Servicer shall transfer, assign, set over and convey to
the Purchaser all of its right, title and interest in and to the related
Servicing Rights with respect to such repurchased Mortgage Loan. In addition,
this Agreement shall terminate with respect to such Mortgage Loan, except as
otherwise provided herein.
Section 2.03 Servicer to Act as Servicer.
From and after the related Transfer Date, the Servicer, as an
independent contractor, shall service and administer each Mortgage Loan in the
related Servicing Rights Package and shall have full power and authority,
acting alone, to do any and all things in connection with such servicing and
administration which the Servicer may deem necessary or desirable, consistent
with the terms of this Agreement and with Accepted Servicing Practices.
The Servicer shall provide the Purchaser with a description of its
modification plan types. The Servicer shall not enter into any modification
plan which is not a modification plan type approved by the Purchaser.
Notwithstanding anything in this Agreement to the contrary, the
Servicer shall not (i) permit any modification with respect to any Mortgage
Loan that would change the Mortgage Interest Rate, reduce or increase the
principal balance (except for reductions resulting from actual payments of
principal) or change the final maturity date on such Mortgage Loan (except for
(A) a reduction of interest payments resulting from the application of the
Servicemembers' Civil Relief Act of 2003, as amended, or any similar state
statutes or (B) as provided in the following paragraph, the Mortgagor is in
default with respect to the Mortgage Loan or such default is, in the judgment
of the Servicer, reasonably foreseeable) or (ii) except as provided in the
following paragraph, waive any prepayment penalty.
Consistent with the terms of this Agreement and Accepted Servicing
Practices, the Servicer may (i) waive any late payment charge or, if
applicable, any penalty interest, or (ii) extend the due dates for the Monthly
Payments due on a Mortgage Note for a period of not greater than 180 days;
provided, that any extension pursuant to clause (ii) above shall not affect
the amortization schedule of any Mortgage Loan for purposes of any computation
hereunder,
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except as provided below. In the event of any such arrangement pursuant to
clause (ii) above, the Servicer shall make timely advances on such Mortgage
Loan during such extension pursuant to Section 3.04 and in accordance with the
amortization schedule of such Mortgage Loan without modification thereof by
reason of such arrangements, provided that the Servicer shall not be required
to make any such advances that are Nonrecoverable Advances. Notwithstanding
the foregoing, in the event that any Mortgage Loan is in default or, in the
judgment of the Servicer, such default is reasonably foreseeable, the
Servicer, consistent with the standards set forth in this Agreement and
Accepted Servicing Practices, may also waive, modify or vary any term of such
Mortgage Loan (including modifications that would change the Mortgage Rate,
forgive the payment of principal or interest, extend the final maturity date
of such Mortgage Loan or waive, in whole or in part, a prepayment penalty),
accept payment from the related Mortgagor of an amount less than the Stated
Principal Balance in final satisfaction of such Mortgage Loan, or consent to
the postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor (any and all such waivers, modifications,
variances, forgiveness of principal or interest, postponements, or indulgences
collectively referred to herein as "forbearance"); provided, however, that the
terms of any Mortgage Loan may only be waived, modified or varied once without
the consent of the Purchaser while the Mortgage Loan remains outstanding. The
Servicer's analysis supporting any forbearance and the conclusion that any
forbearance meets the standards of this section shall be reflected in writing
in the Servicing File. In addition, notwithstanding the foregoing, the
Servicer may also waive, in whole or in part, a prepayment penalty if such
prepayment penalty is (i) not permitted to be collected by applicable law, or
(ii) the enforceability thereof is limited (1) by bankruptcy, insolvency,
moratorium, receivership or other similar laws relating to creditor's rights
or (2) due to acceleration in connection with a foreclosure or other
involuntary payment. If a prepayment penalty is waived other than as permitted
above, then the Servicer is required to deposit the amount of such waived
prepayment penalty into the Custodial Account together with and at the time
that the amount prepaid on the related Mortgage Loan is required to be
deposited into the Custodial Account; provided, however, that the Servicer
shall not have an obligation to pay the amount of any uncollected prepayment
penalty if the failure to collect such amount is the direct result of
inaccurate or incomplete information on the Mortgage Loan Schedule in effect
at such time. In servicing and administering the Mortgage Loans, the Servicer
shall employ procedures (including collection procedures) and exercise the
same care that it customarily employs and exercises in servicing and
administering mortgage loans for its own account, giving due consideration to
Accepted Servicing Practices where such practices do not conflict with the
requirements of this Agreement, and the Purchaser's reliance on the Servicer.
In addition, the Servicer shall retain adequate personnel to effect such
servicing and administration of the Mortgage Loans.
The Servicer shall keep at its servicing office books and records
in which, subject to such reasonable regulations as it may prescribe, the
Servicer shall note transfers of Mortgage Loans. No transfer of a Mortgage
Loan may be made unless such transfer is in compliance with the terms hereof.
For the purposes of this Agreement, the Servicer shall be under no obligation
to deal with any Person with respect to this Agreement or the Mortgage Loans
unless the Servicer has been notified of such transfers as provided in this
Section 2.03. The Purchaser may sell and transfer, in whole or in part, the
Mortgage Loans (exclusive of the related Servicing Rights purchased by the
Servicer hereunder), provided that no such sale and transfer shall be binding
upon Servicer unless such transferee shall agree in writing to be bound by the
terms of
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this Agreement and the Purchase Agreement, and an executed copy of the same in
the form of an Assignment, Assumption and Recognition shall have been
delivered to and executed by the Servicer. Upon receipt and execution thereof,
the Servicer shall ▇▇▇▇ its books and records to reflect the ownership of the
Mortgage Loans by such assignee, and the previous Purchaser shall be released
from its obligations hereunder. This Agreement shall be binding upon and inure
to the benefit of the Purchaser and the Servicer and their permitted
successors, assignees and designees.
The Servicing File maintained by the Servicer pursuant to this
Agreement shall be appropriately marked and identified in the Servicer's
computer system to clearly reflect the ownership of the related Mortgage Loan
by the Purchaser. The Servicer shall release from its custody the contents of
any Servicing File maintained by it only in accordance with this Agreement.
Servicer shall be responsible for the actions of any vendors which
Servicer utilizes to carry out its obligations hereunder and any fees paid to
such vendors shall be paid by the Servicer from its own funds unless otherwise
agreed in the Purchase Price and Terms Letter.
Section 2.04 Liquidation of Mortgage Loans.
In the event that any payment due under any Mortgage Loan and not
postponed pursuant to Section 2.03 is not paid when the same becomes due and
payable, or in the event the Mortgagor fails to perform any other covenant or
obligation under the Mortgage Loan and such failure continues beyond any
applicable grace period, the Servicer shall take such action as (1) the
Servicer would take under similar circumstances with respect to a similar
mortgage loan held for its own account for investment, (2) shall be consistent
with Accepted Servicing Practices and (3) the Servicer shall determine
reasonably to be in the best interest of the Purchaser. In the event that any
payment due under any Mortgage Loan is not postponed pursuant to Section 2.03
and remains delinquent for a period of 90 days or any other default continues
for a period of 90 days beyond the expiration of any grace or cure period (or
such other period as is required by law in the jurisdiction where the related
Mortgaged Property is located) or earlier as determined by the Servicer, in
accordance with Accepted Servicing Practices (including application of
standard loss mitigation procedures), the Servicer shall cause a Foreclosure
Commencement. In such connection, the Servicer shall from its own funds make
all necessary and proper Servicing Advances, provided, however, that the
Servicer shall not be required to expend its own funds in connection with any
foreclosure or towards the restoration or preservation of any Mortgaged
Property, unless it shall determine (a) that such preservation, restoration
and/or foreclosure will increase the proceeds of liquidation of the Mortgage
Loan to Purchaser after reimbursement to itself for such expenses and (b) that
such expenses will be recoverable by it either through Liquidation Proceeds
(respecting which it shall have priority for purposes of withdrawals from the
Custodial Account pursuant to Section 2.07) or through Insurance Proceeds
(respecting which it shall have similar priority).
The Servicer acknowledges and agrees that it shall take and
initiate any legal actions with respect to any Mortgage Loans and REO
Properties, including, without limitation, any foreclosure actions, acceptance
of deeds-in-lieu of foreclosure, and any collection actions with respect to
any Mortgage Loans or REO Properties on behalf of the Purchaser, but only in
the name of the Servicer or its nominee and without reference to the
Purchaser. Except as
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otherwise required by law or with the consent of the Purchaser, under no
circumstances shall any such action be taken in the name of, or with any
reference to, the Purchaser. The Servicer shall provide prior written notice
to the Purchaser if the Servicer is required by applicable law to take any
legal actions with respect to the Mortgage Loan or REO Properties in the name
of, or with reference to, the Purchaser.
Notwithstanding the foregoing, all actions must be approved by the
Purchaser relating to any Mortgaged Property that is determined to be
contaminated by hazardous or toxic substances or wastes.
With respect to any HOEPA Loan which is in default, but prior to
the commencement of any loss mitigation procedures or foreclosure proceedings,
the Servicer shall (A) review the related Mortgage File to determine whether
or not the Mortgage File contains the disclosure documents required by HOEPA,
whether or not such documents were executed by the related Mortgagor(s), and
whether or not such documents were executed three or more days in advance of
closing and (B) inform the Purchaser if such timely and executed disclosure
documents are not in the Mortgage File.
Further, prior to the commencement of any loss mitigation
procedures with respect to a HOEPA Loan, the Servicer shall notify those
servicing personnel involved in loss mitigation related to the Mortgage Loan
as to whether or not any such disclosure documentation is defective or
missing.
The Servicer shall notify the Purchaser within 3 Business Days if
at any time the Mortgagor asserts a claim or defense based on HOEPA, whether
in a written notice, as a defense to a foreclosure proceeding, or otherwise.
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure, in the event the Servicer has reasonable cause
to believe that a Mortgaged Property is contaminated by hazardous or toxic
substances or wastes, or if the Purchaser otherwise requests an environmental
inspection or review of such Mortgaged Property to be conducted by a qualified
inspector the Servicer shall cause the Mortgaged Property to be so inspected.
Upon completion of the inspection, the Servicer shall promptly provide the
Purchaser with a written report of the environmental inspection.
Upon receipt of notice of any HOEPA Loan, Purchaser shall cause
servicing of such HOEPA Loan (and the related Servicing Rights) to be
transferred from Servicer to a subsequent servicer designated by Purchaser as
soon as reasonably practicable, and Servicer shall cooperate in such transfer
After reviewing the environmental inspection report, the Purchaser
shall determine how the Servicer shall proceed with respect to the Mortgaged
Property. In the event (a) the environmental inspection report indicates that
the Mortgaged Property is contaminated by hazardous or toxic substances or
wastes and (b) the Purchaser directs the Servicer to proceed with foreclosure
or acceptance of a deed in lieu of foreclosure, the Servicer shall be
reimbursed for all reasonable costs associated with such foreclosure or
acceptance of a deed in lieu of foreclosure and any related environmental
clean up costs, as applicable, from the related
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Liquidation Proceeds, or if the Liquidation Proceeds are insufficient to fully
reimburse the Servicer, the Servicer shall be entitled to be reimbursed from
amounts in the Custodial Account pursuant to Section 2.07 hereof. In the event
the Purchaser directs the Servicer not to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Servicer shall be reimbursed
for all Servicing Advances made with respect to the related Mortgaged Property
from the Custodial Account pursuant to Section 2.07 hereof.
Section 2.05 Collection of Mortgage Loan Payments.
Following the related Transfer Date, the Servicer shall proceed
diligently to collect all payments due under each of the related Mortgage
Loans when the same shall become due and payable and shall take special care
in ascertaining and estimating Escrow Payments, to the extent applicable, and
all other charges that will become due and payable with respect to the
Mortgage Loans and each related Mortgaged Property, to the end that the
installments payable by the Mortgagors will be sufficient to pay such charges
as and when they become due and payable. Notwithstanding anything herein to
the contrary, the Servicer shall have no obligation to collect, or make
payments to the Purchaser with respect to, any prepayment penalties, late
charges, fees or other items which are prohibited under applicable law.
Section 2.06 Establishment of and Deposits to Custodial Account.
The Servicer shall segregate and hold all funds collected and
received pursuant to the Mortgage Loans separate and apart from any of its own
funds and general assets and shall establish one or more Custodial Accounts,
in the form of time deposit or demand accounts, titled "Saxon Mortgage
Services, Inc. in trust for ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company re: Fixed and
Adjustable Rate Residential Mortgage Loans". The Custodial Account shall be
established with a Qualified Depository acceptable to the Purchaser as a
Special Deposit Account. Any funds deposited in the Custodial Account shall at
all times be fully insured to the full extent permitted by the FDIC and as
otherwise acceptable to the Rating Agencies and any amounts therein may be
invested in Eligible Investments. The creation of any Custodial Account shall
be evidenced by a certification in the form of Exhibit 2 hereto, in the case
of an account established with the Servicer, or by a letter agreement in the
form of Exhibit 3 hereto, in the case of an account held by a depository other
than the Servicer. A copy of such certification or letter agreement shall be
furnished to the Purchaser and, upon request, to any subsequent Purchaser.
The Servicer shall deposit in the Custodial Account on or prior to
the second Business Day following receipt thereof, and retain therein, the
following collections received by the Servicer and payments made by the
Servicer after the related Transfer Date, other than payments of principal and
interest due on or before the related Transfer Date, or received by the
Servicer prior to the related Transfer Date but allocable to a period
subsequent thereto:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage adjusted
to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds and any amount received with
respect to REO Property;
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(iv) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 2.12 (other than proceeds to be held in
the Escrow Account and applied to the restoration or repair of the
Mortgaged Property or released to the Mortgagor in accordance with
Section 2.16), and Section 2.13;
(v) all Condemnation Proceeds which are not applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 2.16;
(vi) any amount required to be deposited in the Custodial Account
pursuant to Section 2.12, 2.17, 3.01, or 4.02;
(vii) any amounts payable in connection with the repurchase of any
Mortgage Loan pursuant to Section 9 of the Purchase Agreement;
(viii) any prepayment penalties received with respect to any
Mortgage Loan; and
(ix) any amounts required to be deposited by the Servicer pursuant
to Section 2.13 in connection with the deductible clause in any blanket
hazard insurance policy.
The foregoing requirements for deposit into the Custodial Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, unless otherwise provided herein, payments in the
nature of the Servicing Fee and Ancillary Income need not be deposited by the
Servicer into the Custodial Account. Any interest paid on funds deposited in
the Custodial Account by the depository institution shall accrue to the
benefit of the Servicer and the Servicer shall be entitled to retain and
withdraw such interest from the Custodial Account pursuant to Section 2.07.
Section 2.07 Permitted Withdrawals From Custodial Account.
Subject to Section 3.01, the Servicer shall be entitled to
withdraw funds from the Custodial Account for the following purposes:
(i) to make payments to the Purchaser in the amounts and in the
manner provided Section 3.01;
(ii) to pay to itself the Servicing Fee (to the extent the
Servicer has not retained the Servicing Fee);
(iii) to reimburse itself for unreimbursed Servicing Advances
(except to the extent reimbursed pursuant to Section 2.09), any accrued
but unpaid Servicing Fees and for unreimbursed advances of Servicer
funds made pursuant to Section 2.17, the Servicer's right to reimburse
itself pursuant to this subclause (iv) with respect to any Mortgage Loan
being limited to related Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds and such other amounts as may be collected by the
Servicer from the Mortgagor or otherwise relating to the Mortgage Loan,
it being understood that, in the case of any such reimbursement, the
Servicer's right thereto shall be prior to the rights of the Purchaser;
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(iv) following the liquidation of a Mortgage Loan, to reimburse
itself for (a) any unpaid Servicing Fees and Servicing Advances to the
extent not recoverable from Liquidation Proceeds, Insurance Proceeds or
other amounts received with respect to the related Mortgage Loan under
Section 2.07(iii);
(v) to reimburse itself for any Nonrecoverable Servicing Advances;
(vi) to invest funds in Eligible Investments in accordance with
Section 2.11;
(vii) to withdraw funds deposited in error;
(viii) to pay itself any interest earned on funds deposited in the
Custodial Account (all such interest to be withdrawn monthly not later
than each Remittance Date); and
(ix) to clear and terminate the Custodial Account upon the
termination of this Agreement.
Section 2.08 Establishment of and Deposits to Escrow Account. The
Servicer shall segregate and hold all funds collected and received pursuant to
a Mortgage Loan constituting Escrow Payments separate and apart from any of
its own funds and general assets and shall establish and maintain one or more
Escrow Accounts, in the form of time deposit or demand accounts, titled,
"Saxon Mortgage Services, Inc., in trust for Purchasers of Residential Fixed
and Adjustable Rate Mortgage Loans, and various Mortgagors". The Escrow
Account shall be established with a Qualified Depository as a Special Deposit
Account, in a manner which shall provide maximum available insurance by the
FDIC and as otherwise acceptable to the Rating Agencies. Funds deposited in
the Escrow Accounts may be drawn on by the Servicer in accordance with Section
2.09. The creation of any Escrow Account shall be evidenced by a certification
in the form of Exhibit 4 hereto, in the case of an account established with
the Servicer, or by a letter agreement in the form of Exhibit 5 hereto, in the
case of an account held by a depository other than the Servicer. A copy of
such certification shall be furnished to the Purchaser and, upon request, to
any subsequent Purchaser.
The Servicer shall deposit in the Escrow Account or Accounts on or
prior to the second Business Day following receipt thereof, and retain
therein:
(i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as
required under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds or Condemnation
Proceeds which are to be applied to the restoration or repair of any
Mortgaged Property.
The Servicer shall make withdrawals from the Escrow Account only
to effect such payments as are required under this Agreement, as set forth in
Section 2.09. The Servicer shall be entitled to retain any interest paid on
funds deposited in the Escrow Account by the depository institution, other
than interest on escrowed funds required by law to be paid to the Mortgagor.
To the extent required by law, the Servicer shall pay from its own funds
interest on
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escrowed funds to the Mortgagor notwithstanding that the Escrow Account may be
non-interest bearing or that interest paid thereon is insufficient for such
purposes.
Section 2.09 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by the
Servicer only:
(i) to effect timely payments of ground rents, taxes, assessments,
water rates, mortgage insurance premiums, condominium charges, fire and
hazard insurance premiums or other items constituting Escrow Payments
for the related Mortgage;
(ii) to reimburse the Servicer for any Servicing Advance made by
the Servicer pursuant to Section 2.10 with respect to a related Mortgage
Loan, but only from amounts received on the related Mortgage Loan which
represent late collections of Escrow Payments thereunder;
(iii) to refund to any Mortgagor any funds found to be in excess
of the amounts required under the terms of the related Mortgage Loan or
applicable federal or state law or judicial or administrative ruling;
(iv) for transfer to the Custodial Account and application to
reduce the principal balance of the Mortgage Loan in accordance with the
terms of the related Mortgage and Mortgage Note;
(v) for application to restoration or repair of the Mortgaged
Property in accordance with the procedures outlined in Section 2.16;
(vi) to pay to the Servicer, or any Mortgagor to the extent
required by law, any interest paid on the funds deposited in the Escrow
Account;
(vii) to reimburse itself for any amounts deposited in the Escrow
Account in error; and
(viii) to clear and terminate the Escrow Account on the
termination of this Agreement.
Section 2.10 Payment of Taxes, Insurance and Other Charges.
With respect to each Mortgage Loan that provides for Escrow
Payments, the Servicer shall maintain accurate records reflecting the status
of ground rents, taxes, assessments, water rates, sewer rents, and other
charges which are or may become a lien upon the Mortgaged Property and the
status fire and hazard insurance coverage and shall obtain, from time to time,
all bills for the payment of such charges (including renewal premiums) and
shall effect payment thereof prior to the applicable penalty or termination
date, employing for such purpose deposits of the Mortgagor in the Escrow
Account which shall have been estimated and accumulated by the Servicer in
amounts sufficient for such purposes, as allowed under the terms of the
Mortgage.
To the extent that any Mortgage Loan does not provide for Escrow
Payments, the Servicer shall determine that any such payments are made by the
Mortgagor. With respect to
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each Mortgage Loan, subject to Accepted Servicing Practices, the Servicer
assumes full responsibility for the payment of all such bills and shall effect
payments of all such bills irrespective of the Mortgagor's faithful
performance in the payment of same or the making of the Escrow Payments and
shall make Servicing Advances from its own funds to effect such payments
within the time period required to avoid the loss of the related Mortgaged
Property by foreclosure from a tax or other lien. Notwithstanding the
foregoing, if the Servicer reasonably determines that such Servicing Advance
would be a Nonrecoverable Advance, the Servicer shall have no obligation to
make such Servicing Advance. If Servicer fails to make a Servicing Advance
with respect to any payment prior to the date on which any late payment
penalties or costs related to protecting the lien accrue, the Servicer shall
pay any such penalties or costs within the time period required to avoid the
loss of the related Mortgaged Property by foreclosure from a tax or other
lien; provided, however, for all tax penalties and interest levied prior to
the Servicing Transfer Date or as a result of the actions of the prior
servicer or the Purchaser, the Servicer shall make Servicing Advances to
effect such payments; provided, further, that if the Servicer reasonably
determines that such Servicing Advance would be a Nonrecoverable Advance, the
Servicer shall have no obligation to make such Servicing Advance.
In addition, in the event that a Mortgage Loan is not covered by a
transferable Tax Service Contract on the related Transfer Date, the Servicer
shall obtain a Tax Service Contract for such Mortgage Loan and shall be
entitled to first priority reimbursement therefore pursuant to Section 2.07.
Section 2.11 Protection of Accounts.
The Servicer may transfer the Custodial Account or the Escrow
Account to a different Qualified Depository from time to time. Such transfer
shall be made only upon notice to the Purchaser, which notice shall be
provided prior to such transfer unless such transfer is due to an emergency.
The Servicer shall bear any expenses, losses or damages sustained
by the Purchaser because the Custodial Account and/or Escrow Account are not
demand deposit accounts.
Amounts on deposit in the Custodial Account may at the option of
the Servicer be invested in Eligible Investments. Any such Eligible Investment
shall mature no later than one day prior to the Remittance Date in each month;
provided, however, that if such Eligible Investment is an obligation of a
Qualified Depository (other than the Servicer) that maintains the Custodial
Account, then such Eligible Investment may mature on the related Remittance
Date. Any such Eligible Investment shall be made in the name of the Servicer
in trust for the benefit of the Purchaser. All income on or gain realized from
any such Eligible Investment shall be for the benefit of the Servicer and may
be withdrawn at any time by the Servicer. Any losses incurred in respect of
any such investment shall be deposited in the Custodial Account, by the
Servicer out of its own funds immediately as realized. If, at any time, the
amount on deposit in the Custodial Account exceeds the amount of the
applicable FDIC insurance, such excess above the amount of the applicable FDIC
insurance shall be invested in Eligible Investments.
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Section 2.12 Maintenance of Hazard Insurance.
The Servicer shall cause to be maintained for each Mortgage Loan,
hazard insurance by a generally acceptable insurer rated A:VI or better in the
current Best's Key Rating Guide ("Best's") against loss by fire, hazards of
extended coverage and such other hazards such that all buildings upon the
Mortgaged Property are insured under the ▇▇▇▇▇▇ ▇▇▇ Guides against loss by
fire, hazards of extended coverage and such other hazards as are required
thereunder, in an amount which is at least equal to the lesser of (i) the
maximum insurable value of the improvements securing such Mortgage Loan and
(ii) the greater of (a) the outstanding principal balance of the Mortgage Loan
or (b) an amount such that the proceeds thereof shall be sufficient to prevent
the Mortgagor or the loss payee from becoming a co-insurer.
If required by the National Flood Insurance Act of 1968, as
amended, each Mortgage Loan is, and shall continue to be, covered by a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration with a generally acceptable insurance carrier
acceptable under the ▇▇▇▇▇▇ Mae Guides in an amount representing coverage not
less than the lesser of (i) the aggregate unpaid principal balance of the
Mortgage Loan, (ii) maximum amount of insurance which is available under the
National Flood Insurance Act of 1968, as amended (regardless of whether the
area in which such Mortgaged Property is located is participating in such
program), or (iii) the full replacement value of the improvements which are
part of such Mortgaged Property. If a Mortgaged Property is located in a
special flood hazard area and is not covered by flood insurance or is covered
in an amount less than the amount required by the National Flood Insurance Act
of 1968, as amended, the Servicer shall notify the related Mortgagor that the
Mortgagor must obtain such flood insurance coverage, and if said Mortgagor
fails to obtain the required flood insurance coverage within forty five (45)
days after such notification, the Servicer shall immediately force place the
required flood insurance on the Mortgagor's behalf.
If a Mortgage is secured by a unit in a condominium project, the
Servicer shall verify that the coverage required of the owner's association,
including hazard, flood, liability, and fidelity coverage, is being maintained
in accordance with then current ▇▇▇▇▇▇ ▇▇▇ requirements, and secure from the
owner's association its agreement to notify the Servicer promptly of any
change in the insurance coverage or of any condemnation or casualty loss that
may have a material effect on the value of the Mortgaged Property as security.
The Servicer shall cause to be maintained on each Mortgaged
Property such other or additional insurance as may be required pursuant to
such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance, or pursuant to the requirements of
any private mortgage guaranty insurer, or as may be required to conform with
Accepted Servicing Practices.
In the event that the Purchaser or the Servicer shall determine
that the Mortgaged Property should be insured against loss or damage by
hazards and risks not covered by the insurance required to be maintained by
the Mortgagor pursuant to the terms of the Mortgage, the Servicer shall in
accordance with the ▇▇▇▇▇▇ Mae Guides make commercially reasonable efforts to
communicate and consult with the Mortgagor with respect to the need for such
insurance and bring to the Mortgagor's attention the desirability of
protection of the Mortgaged Property.
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All policies required hereunder shall name the Servicer and its
successors and assigns as a mortgagee and loss payee and shall be endorsed
with non contributory standard or New York mortgagee clauses which shall
provide for at least 30 days prior written notice of any cancellation,
reduction in amount or material change in coverage.
The Servicer shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Servicer shall not accept any such insurance policies from insurance
companies unless such companies are acceptable under the ▇▇▇▇▇▇ ▇▇▇ Guides and
are licensed to do business in the jurisdiction in which the Mortgaged
Property is located. The Servicer shall determine that such policies provide
sufficient risk coverage and amounts as required pursuant to the ▇▇▇▇▇▇ Mae
Guides, that they insure the property owner, and that they properly describe
the property address. The Servicer shall furnish to the Mortgagor a formal
notice of expiration of any such insurance in sufficient time for the
Mortgagor to arrange for renewal coverage by the expiration date; provided,
however, that in the event that no such notice is furnished by the Servicer,
the Servicer shall ensure that replacement insurance policies are in place in
the required coverages and the Servicer shall be solely liable for any losses
in the event coverage is not provided.
Pursuant to Section 2.06, any amounts collected by the Servicer
under any such policies (other than amounts to be deposited in the Escrow
Account and applied to the restoration or repair of the related Mortgaged
Property, or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor, in accordance with the Servicer's normal servicing
procedures as specified in Section 2.16) shall be deposited in the Custodial
Account subject to withdrawal pursuant to Section 2.07.
Section 2.13 Maintenance of Mortgage Impairment Insurance.
In the event that the Servicer shall obtain and maintain a blanket
policy insuring against losses arising from fire and hazards covered under
extended coverage on all of the Mortgage Loans, then, to the extent such
policy provides coverage in an amount equal to the amount required pursuant to
Section 2.12 and otherwise complies with all other requirements of Section
2.12, it shall conclusively be deemed to have satisfied its obligations as set
forth in Section 2.12. Any amounts collected by the Servicer under any such
policy relating to a Mortgage Loan shall be deposited in the Custodial Account
subject to withdrawal pursuant to Section 2.07. Such policy may contain a
deductible clause, in which case, in the event that there shall not have been
maintained on the related Mortgaged Property a policy complying with Section
2.12, and there shall have been a loss which would have been covered by such
policy, the Servicer shall deposit in the Custodial Account at the time of
such loss the amount not otherwise payable under the blanket policy because of
such deductible clause, such amount to be deposited from the Servicer's funds,
without reimbursement therefor. Upon request of the Purchaser, the Servicer
shall cause to be delivered to the Purchaser a certified true copy of such
policy and a statement from the insurer thereunder that such policy shall in
no event be terminated or materially modified without 30 days' prior written
notice to the Purchaser.
Section 2.14 Maintenance of Fidelity Bond and Errors and Omissions
Insurance.
The Servicer shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy
which may be in the form
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of a Mortgage Protection insurance policy, with broad coverage on all
officers, employees or other persons acting in any capacity requiring such
persons to handle funds, money, documents or papers relating to the Mortgage
Loans ("Servicer Employees"). Any such Fidelity Bond and Errors and Omissions
Insurance Policy shall be in the form of the Mortgage Banker's Blanket Bond
and shall protect and insure the Servicer against losses, including forgery,
theft, embezzlement, fraud, errors and omissions and negligent acts of such
Servicer Employees. Such Fidelity Bond and Errors and Omissions Insurance
Policy also shall protect and insure the Servicer against losses in connection
with the release or satisfaction of a Mortgage Loan without having obtained
payment in full of the indebtedness secured thereby. No provision of this
Section 2.14 requiring such Fidelity Bond and Errors and Omissions Insurance
Policy shall diminish or relieve the Servicer from its duties and obligations
as set forth in this Agreement. The minimum coverage under any such Fidelity
Bond and Errors and Omissions Insurance Policy shall be at least equal to the
corresponding amounts required by ▇▇▇▇▇▇ ▇▇▇ in the ▇▇▇▇▇▇ Mae Mortgage-Backed
Securities Selling and Servicing Guide. Upon the request of the Purchaser, the
Servicer shall cause to be delivered to the Purchaser a certified true copy of
such Fidelity Bond and Errors and Omissions Insurance Policy.
Section 2.15 Inspections.
The Servicer shall inspect the Mortgaged Property as often as is
deemed necessary by the Servicer to assure itself that the value of the
Mortgaged Property is being preserved. In addition, if any Mortgage Loan is
more than 60 days delinquent, the Servicer shall promptly inspect the
Mortgaged Property and shall conduct subsequent inspections in accordance with
Accepted Servicing Practices; provided further that if the Servicer determines
that any Mortgaged Property is vacant, the Servicer shall promptly inspect to
the Mortgaged Property and should conduct subsequent inspections every 30
days. The Servicer shall keep a written report of each such inspection. The
costs of such inspections shall be treated as Servicing Advances for which the
Servicer shall be entitled to full reimbursement for in accordance with
Section 2.07.
Section 2.16 Restoration of Mortgaged Property.
The Servicer need not obtain the approval of the Purchaser prior
to releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor
to be applied to the restoration or repair of the Mortgaged Property if such
release is in accordance with Accepted Servicing Practices and the terms of
this Agreement. At a minimum, the Servicer shall comply with the following
conditions in connection with any such release of Insurance Proceeds or
Condemnation Proceeds:
(i) the Servicer shall receive satisfactory independent
verification of completion of repairs and issuance of any required
approvals with respect thereto;
(ii) the Servicer shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens;
(iii) the Servicer shall verify that the Mortgage Loan is not in
default; and
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(iv) pending repairs or restoration, the Servicer shall place the
Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
If the Purchaser is named as an additional loss payee, the
Servicer is hereby empowered to endorse any loss draft issued in respect of
such a claim in the name of the Purchaser.
Section 2.17 Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Servicer on behalf of the Purchaser and
without reference to the Purchaser except as otherwise required by law. The
Person or Persons holding such title other than the Purchaser shall
acknowledge in writing that such title is being held as nominee for the
Purchaser.
The Servicer shall manage, conserve, protect and operate each REO
Property for the Purchaser solely for the purpose of its prompt disposition
and sale. The Servicer, either itself or through an agent selected by the
Servicer, shall manage, conserve, protect and operate the REO Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property in
the same locality as the REO Property is managed. The Servicer shall attempt
to sell the same (and may temporarily rent the same for a period not greater
than one year, except as otherwise provided below) on such terms and
conditions as the Servicer deems to be in the best interest of the Purchaser.
The Servicer shall notify the Purchaser on a monthly basis as to the status of
each REO Property.
The Servicer shall use commercially reasonable efforts to dispose
of the REO Property as soon as possible and shall sell such REO Property in
any event within one year after title has been taken to such REO Property,
unless the Servicer determines, and gives an appropriate notice to the
Purchaser to such effect, that a longer period is necessary for the orderly
liquidation of such REO Property. If a period longer than one year is
permitted under the foregoing sentence and is necessary to sell any REO
Property, the Servicer shall report monthly to the Purchaser as to the
progress being made in selling such REO Property.
The Servicer shall also maintain on each REO Property fire and
hazard insurance with extended coverage in an amount which is at least equal
to the maximum insurable value of the improvements which are a part of such
property, liability insurance and, to the extent required and available under
the National Flood Insurance Act of 1968, as amended, flood insurance in the
amount required in Section 2.12 hereof.
The disposition of REO Property shall be carried out by the
Servicer at such price, and upon such terms and conditions, as the Servicer
deems to be in the best interests of the Purchaser. The proceeds of sale of
the REO Property shall be promptly deposited in the Custodial Account. As soon
as practical thereafter, the expenses of such sale shall be paid and the
Servicer shall reimburse itself for any related unreimbursed Servicing
Advances and unpaid Servicing Fees made pursuant to this Section, and on the
Remittance Date immediately following the Principal Prepayment Period in which
such sale proceeds are received the net cash proceeds of such sale remaining
in the Custodial Account shall be distributed to the Purchaser.
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With respect to each REO Property, the Servicer shall hold all
funds collected and received in connection with the operation of the REO
Property in the Custodial Account. The Servicer shall cause to be deposited on
or prior to the second Business Day following the receipt thereof in each
Custodial Account all revenues received with respect to the conservation and
disposition of the related REO Property.
Section 2.18 Permitted Withdrawals with respect to REO Property.
The Servicer shall withdraw funds on deposit in the Custodial
Account with respect to each related REO Property necessary for the proper
operation, management and maintenance of the REO Property, including the cost
of maintaining any hazard insurance pursuant to Section 2.12 and the fees of
any managing agent acting on behalf of the Servicer. The Servicer shall make
monthly distributions on each Remittance Date to the Purchaser of the net cash
flow from the REO Property (which shall equal the revenues from such REO
Property net of the expenses described in Section 2.17 and of any reserves
reasonably required from time to time to be maintained to satisfy anticipated
liabilities for such expenses).
Section 2.19 Reports of Foreclosures and Abandonments of Mortgaged
Property.
Following the foreclosure sale or abandonment of any Mortgaged
Property, the Servicer shall report such foreclosure or abandonment as
required pursuant to Section 6050J of the Code.
Section 2.20 Notification of Adjustments.
With respect to each Adjustable Rate Mortgage Loan, the Servicer
shall adjust the Mortgage Interest Rate on the related Interest Rate
Adjustment Date in compliance with the requirements of applicable law and the
related Mortgage and Mortgage Note. The Servicer shall execute and deliver any
and all necessary notices required under applicable law and the terms of the
related Mortgage Note and Mortgage regarding the Mortgage Interest Rate and
the Monthly Payment adjustments. The Servicer shall promptly upon written
request thereof, deliver to the Purchaser such notifications and any
additional applicable data regarding such adjustments and the methods used to
calculate and implement such adjustments. Upon the discovery by the Servicer,
or the Purchaser that the Servicer has failed to adjust a Mortgage Interest
Rate or a Monthly Payment pursuant to the terms of the related Mortgage Note
and Mortgage, the Servicer shall immediately deposit in the Custodial Account
from its own funds the amount of any interest loss caused the Purchaser
thereby.
Section 2.21 Transfer of Servicing.
Prior to or on each Servicing Transfer Date, a Servicing Transfer
Letter shall be properly executed and entered into by and between the
Purchaser, the Seller and the Servicer and the Purchaser shall deliver to the
Servicer an executed Servicer Acknowledgment. Pursuant thereto and herein, the
Purchaser shall cause the Seller to deliver to the Servicer the Servicing File
for each related Mortgage Loan (including a copy of the final mortgagee policy
of title insurance when available) and, by computer readable electronic
transmission, the related Mortgage Loan Schedule not later than two (2)
Business Days after the Servicing Transfer Date. The Purchaser shall deliver
or cause the Seller to deliver the Servicing Transfer Schedule to the Servicer
on or prior to the date which is one (1) Business Day after the Servicing
Transfer Date. At the request of the Servicer, the Purchaser shall enforce the
obligations of the Seller with
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respect to the servicing transfer provisions set forth in the Purchase
Agreement and shall make reasonable efforts to cause Seller to adhere to all
market-normal practices for servicing transfer. Any fees and expenses incurred
in transferring the Servicing Files to the Servicer shall not be an obligation
of the Servicer. Notwithstanding any provision in this Agreement to the
contrary, the Servicer shall not have any liability for any breach under this
Agreement resulting from the Seller's failure to deliver the complete
Servicing File for each Mortgage Loan.
Section 2.22 Recordation of Assignments of Mortgage.
Except in connection with Accepted Servicing Practices for
defaulted Mortgage Loans, the Servicer shall not be responsible for the
preparation or recording of the Assignments of Mortgage relating to the
Mortgage Loans to the Purchaser, the securitization trustee or any other
party; provided, however, that in the event the Servicer agrees to record any
mortgage assignment, any expense, including the fees of third party service
providers, incurred by the Servicer in connection with the preparation and
recordation of Assignments of Mortgage shall be reimbursable by the Purchaser,
or if not reimbursed by the Purchaser, as a Servicing Advance.
Section 2.23 Additional Servicing Requirements.
The Servicer shall comply with the following additional
requirements:
(a) Get updated FICO scores quarterly for the Mortgage Loans at
the Purchaser's expense.
(b) Provide access to the Servicer's Data System, which will
include viewing collection comments.
(c) Apply all payments received from borrowers to principal and
interest prior to any application of advances or fees.
(d) Make staff available to participate in weekly calls to discuss
loans in default including foreclosures, bankruptcy and REO Properties.
(e) the additional requirements set forth in Exhibit 18 and
Exhibit 19.
Section 2.24 Credit Reporting.
The Servicer shall fully furnish, in accordance with the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information on the Mortgagor credit files to Equifax, Experian and Trans Union
Credit Information Company (or their respective successors) on a monthly basis
and in accordance with applicable federal, state and local laws.
ARTICLE III
PAYMENTS TO PURCHASER
Section 3.01 Remittances.
On each Remittance Date the Servicer shall remit by wire transfer
of immediately available funds to the Purchaser all amounts deposited in the
Custodial Account as of the close of business on the Determination Date (net
of charges against or withdrawals from the Custodial
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Account pursuant to Section 2.07) , which amounts shall be remitted on the
applicable Remittance Date.
With respect to any funds remitted after the Business Day
following the date on which such remittance was required to be made, the
Servicer shall pay to the Purchaser interest on any such late payment at an
annual rate equal to the Prime Rate, adjusted as of the date of each change,
plus three (3) percentage points, but in no event greater than the maximum
amount permitted by applicable law. Such interest shall be deposited in the
Custodial Account by the Servicer on the date such late payment is made and
shall cover the period commencing with the Business Day following the Business
Day on which such payment was due and ending with the Business Day on which
such payment is made, both inclusive. Such interest shall be remitted along
with the distribution payable on the next succeeding Remittance Date. The
payment by the Servicer of any such interest shall not be deemed an extension
of time for payment or a waiver of any Event of Default by the Servicer.
Section 3.02 Statements to Purchaser.
Not later than the 3rd day of each month (or if such 3rd day is
not a Business Day, the preceding Business Day), the Servicer shall furnish to
the Purchaser a Monthly Remittance Advice, with a trial balance report
attached thereto, in the form of Exhibit 1 annexed hereto via electronic
medium mutually acceptable to the parties as to the preceding remittance and
the period ending on the preceding Determination Date. Such statement shall
also include Static Pool Information regarding the Mortgage Loans.
In addition, not more than 60 days after the end of each calendar
year, the Servicer shall furnish to each Person who was a Purchaser at any
time during such calendar year an annual statement in accordance with the
requirements of applicable federal income tax law as to the aggregate of
remittances for the applicable portion of such year.
Such obligation of the Servicer shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Servicer pursuant to any requirements of the Internal Revenue
Code as from time to time are in force.
The Servicer shall prepare and file any and all tax returns,
information statements or other filings required to be delivered to any
governmental taxing authority or to the Purchaser pursuant to any applicable
law with respect to the Mortgage Loans and the transactions contemplated
hereby. In addition, the Servicer shall provide the Purchaser with such
information concerning the Mortgage Loans as is necessary for the Purchaser to
prepare its federal income tax return as the Purchaser may reasonably request
from time to time and which is reasonably available to the Servicer.
On the 5th Business Day of each month (the "Data Dictionary
Delivery Date"), the Servicer shall deliver to the Purchaser by FTP an
electronic data file incorporating the fields set forth on Exhibit 10 hereto
(the "Data Dictionary").
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Section 3.03 Advances by Servicer.
Except as otherwise provided herein, the Servicer shall be
entitled to first priority reimbursement pursuant to Section 2.07 hereof for
Servicing Advances from recoveries from the related Mortgagor or from all
Liquidation Proceeds and other payments or recoveries (including Insurance
Proceeds and Condemnation Proceeds) with respect to the related Mortgage Loan.
Section 3.04 Charge off and Advance Analysis
Once a month, the Servicer will analyze, utilizing its internal
proprietary models, all Mortgage Loans that are greater than 90 days
delinquent (excluding those on a forbearance plan or court approved bankruptcy
payment plan) to determine if any such Mortgage Loans should be charged off or
if future Servicing Advances should be deemed to be Nonrecoverable Advances
based on the projections of such proprietary models (the "Nonrecoverability
Analysis"). The Servicer will charge off Mortgage Loans, with the prior
consent of the Purchaser, based on such Nonrecoverability Analysis, and the
Servicer will not make Servicer Advances that are deemed to be Nonrecoverable
Advances based on such Nonrecoverability Analysis; provided, however, that, in
each case, with respect to Mortgage Loans included in a Reconstitution, such
actions are permitted under the related Reconstitution Agreement.
Upon reasonable prior request, the Purchaser may during normal
business hours review the Servicer's policies and procedures related to the
Nonrecoverability Analysis and may no more than twice a year perform an audit
to determine whether the Servicer is taking actions consistent with the
Nonrecoverability Analysis. The Servicer agrees to make such reasonable
changes to the Nonrecoverability Analysis as requested by the Purchaser;
provided, however, that with respect to Mortgage Loans included in a
Reconstitution, such changes are permitted under the related Reconstitution
Agreement.
The Servicer shall retain the Nonrecoverability Analysis for a
period of one year from the date such analysis was undertaken and shall make
such analysis available upon request to the Purchaser during such period.
ARTICLE IV
GENERAL SERVICING PROCEDURES
Section 4.01 Transfers of Mortgaged Property.
The Servicer shall be required to enforce any "due-on-sale"
provision contained in any Mortgage or Mortgage Note and to deny assumption by
the person to whom the Mortgaged Property has been or is about to be sold
whether by absolute conveyance or by contract of sale, and whether or not the
Mortgagor remains liable on the Mortgage and the Mortgage Note. When the
Mortgaged Property has been conveyed by the Mortgagor, the Servicer shall, to
the extent it has knowledge of such conveyance, exercise its rights to
accelerate the maturity of such Mortgage Loan under the "due-on-sale" clause
applicable thereto, provided, however, that the Servicer shall not exercise
such rights if prohibited by law from doing so.
If the Servicer reasonably believes it is unable under applicable
law to enforce such "due-on-sale" clause, the Servicer, shall, to the extent
permitted by applicable law, enter
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into (i) an assumption and modification agreement with the person to whom such
property has been conveyed, pursuant to which such person becomes liable under
the Mortgage Note and the original Mortgagor remains liable thereon or (ii) in
the event the Servicer is unable under applicable law to require that the
original Mortgagor remain liable under the Mortgage Note and the Servicer has
the prior consent of the primary mortgage guarantee insurer, a substitution of
liability agreement with the purchaser of the Mortgaged Property pursuant to
which the original Mortgagor is released from liability and the purchaser of
the Mortgaged Property is substituted as Mortgagor and becomes liable under
the Mortgage Note. If an assumption fee is collected by the Servicer for
entering into an assumption agreement, such fee will be retained by the
Servicer as additional servicing compensation. In connection with any such
assumption, neither the Mortgage Interest Rate borne by the related Mortgage
Note, the term of the Mortgage Loan nor the outstanding principal amount of
the Mortgage Loan shall be changed.
To the extent that any Mortgage Loan is assumable, the Servicer
shall inquire diligently into the creditworthiness of the proposed transferee,
and shall follow Accepted Servicing Practices and the underwriting practices
and procedures of prudent mortgage lenders in the respective states where the
Mortgage Properties are located including but not limited to Servicer
conducting a review of the credit and financial capacity of the individual
receiving the property, and may approve the assumption if it believes the
recipient is capable of assuming the mortgage obligations. If the credit of
the proposed transferee does not satisfy the relevant underwriting criteria
and the transfer of ownership actually occurs, the Servicer diligently shall,
to the extent permitted by the Mortgage or the Mortgage Note and by applicable
law, accelerate the maturity of the Mortgage Loan.
Section 4.02 Satisfaction of Mortgages and Release of Mortgage
Files.
Upon the payment in full of any Mortgage Loan, or the receipt by
the Servicer of a notification that payment in full will be escrowed in a
manner customary for such purposes, the Servicer shall notify the Purchaser in
the Monthly Remittance Advice as provided in Section 3.02, and may request the
release of any Mortgage Loan Documents from the Custodian in accordance with
this Section 4.02 hereof. ▇▇▇▇▇▇▇ will cause the Custodian to provide such
documents in accordance with the terms of the applicable Custodial Agreement
but in no event later than 5 days from receipt by the Custodian of the request
of Servicer. The Servicer shall obtain discharge of the related Mortgage Loan
as of record within any related time limit required by applicable law.
If the Servicer satisfies or releases a Mortgage without first
having obtained payment in full of the indebtedness secured by the Mortgage
(or such lesser amount in connection with a discounted payoff accepted by the
Servicer with respect to a defaulted Mortgage Loan) or should the Servicer
otherwise prejudice any rights the Purchaser may have under the mortgage
instruments, upon written demand of the Purchaser, the Servicer shall purchase
the related Mortgage Loan at an amount equal to (a) Repurchase Price, minus
(b) any costs and damages incurred by the related trust with respect to any
securitization of the Mortgage Loan in connection with any violation by such
Mortgage Loan of any predatory- or abusive-lending law by deposit thereof in
the Custodial Account within five (5) Business Days of receipt of such demand
by the Purchaser if the Servicer is unable to demonstrate that it will be able
to cause the amount of the unpaid indebtedness to be reinstated and secured
under the related Mortgage. The Servicer shall maintain the Fidelity Bond and
Errors and Omissions Insurance
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Policy as provided for in Section 2.14 insuring the Servicer against any loss
it may sustain with respect to any Mortgage Loan not satisfied in accordance
with the procedures set forth herein.
Section 4.03 Servicing Compensation.
As consideration for servicing the Mortgage Loans following the
related Transfer Date, the Servicer shall be entitled to retain the applicable
Servicing Fee from payments on the Mortgage Loans or to withdraw the
applicable Servicing Fee with respect to each Mortgage Loan from the Custodial
Account pursuant to Section 2.07 hereof. The obligation of the Purchaser to
pay, and the Servicer's right to withdraw, the Servicing Fee is limited to,
and the Servicing Fee is payable solely from, the interest portion (including
recoveries with respect to interest from Liquidation Proceeds, to the extent
permitted by Section 2.07) of such Monthly Payment collected by the Servicer,
or as otherwise provided under Section 2.07.
Additional servicing compensation in the form of Ancillary Income
shall be retained by the Servicer to the extent not required to be deposited
in the Custodial Account. The Servicer shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder and shall
not be entitled to reimbursement thereof except as specifically provided for
herein.
Notwithstanding anything set forth in this section related to
Ancillary Income, the Servicer shall not collect from the Mortgagor, pass
through as an advance or as a liquidation expense any charges other than bona
fide third party fees, which fees must be in compliance with local law.
Servicer can not add on a processing, or review fee or any additional fee,
▇▇▇▇ up or otherwise make a profit on or from services or activities rendered
by a third party or affiliate (examples include but not limited to: letters
and notices, force placed insurance, BPOs, appraisals, inspections, property
preservation costs).
Section 4.04 Annual Statement as to Compliance. The Servicer will
deliver to the Purchaser on or before March 15, 2006, an Officers' Certificate
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
Agreement has been made under such officers' supervision, and (ii) to the best
of such officers' knowledge, based on such review, the Servicer has fulfilled
all of its obligations under this Agreement throughout such year, or, if there
has been a default in the fulfillment of any such obligation, specifying each
such default known to such officers and the nature and status thereof.
Section 4.05 Annual Independent Public Accountants' Servicing
Report.
On or before March 15, 2006, the Servicer at its expense shall
cause a firm of independent public accountants which is a member of the
American Institute of Certified Public Accountants to furnish a statement to
the Purchaser stating that (i) it has obtained a letter of representation
regarding certain matters from the management of the Servicer which includes
an assertion that the Servicer has complied with certain minimum residential
mortgage loan servicing standards, identified in either the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America or the Audit Program for Mortgages serviced by ▇▇▇▇▇▇▇
Mac, with respect to the servicing of residential mortgage loans during the
most recently completed fiscal year and (ii) on the basis of an examination
conducted by such firm in accordance with standards established by the
American Institute of Certified
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Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate.
Section 4.06 Sarbanes Oxley Certification
With respect to any Mortgage Loans sold in a Securitization
Transfer where the Servicer is a servicer, the Servicer agrees that on or
before March 15th, 2005, the Servicer shall deliver to the depositor, the
master servicer (if any) and the trustee for the securitization trust created
in the Securitization Transfer, and their officers, directors and affiliates,
a certification in the form attached as Exhibit 14 hereto, executed by the
senior officer in charge of servicing at the Servicer for use in connection
with any Form 10-K to be filed with the Securities and Exchange Commission
with respect to the securitization trust. The Servicer shall indemnify and
hold harmless depositor in the Securitization Transfer, the master servicer
(if any), and the trustee, and their respective officers, directors and
Affiliates, from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon any breach of the
Servicer's obligations under this paragraph or any material misstatement or
omission, negligence, bad faith or willful misconduct of the Servicer in
connection therewith. If the indemnification provided for in the preceding
sentence is unavailable or insufficient to hold harmless any indemnified
party, then the Servicer agrees that it shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages
or liabilities of such indemnified party in such proportion as is appropriate
to reflect the relative fault of such indemnified party, on the one hand, and
the Servicer, on the other, in connection with a breach of the Servicer's
obligations under this paragraph or any material misstatement or omission,
negligence, bad faith or willful misconduct of the Servicer in connection
therewith.
Section 4.07 Right to Examine Servicer Records.
The Purchaser shall have the right to examine and audit any and
all of the books, records, or other information of the Servicer, whether held
by the Servicer or by another on its behalf, with respect to or concerning
this Agreement or the Mortgage Loans, during normal business hours or as
otherwise acceptable to the Servicer, upon reasonable advance notice and at
the sole cost and expense of the Purchaser; provided, however, that unless
otherwise required by law, the Servicer shall not be required to provide
access to such information if the provision thereof would violate any law or
legal obligation of the Servicer including the legal right to privacy of any
Mortgagor.
Section 4.08 Compliance with ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999.
With respect to each Mortgage Loan and the related Mortgagor, the
Servicer shall comply with Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999 and
all applicable regulations and guidelines promulgated thereunder, and the
Servicer shall provide all notices required thereunder using the notice
language supplied by the Servicer.
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ARTICLE V
SERVICER TO COOPERATE
Section 5.01 Provision of Information.
During the term of this Agreement, the Servicer shall furnish to
the Purchaser all reports required hereunder, including those set forth on
Exhibit 10 hereto, and such other periodic, special, or other reports or
information, whether or not provided for herein, as shall be necessary,
reasonable, or appropriate with respect to the Purchaser or the purposes of
this Agreement to the extent such reports or information are readily
accessible to the Servicer without undue expense. All such reports or
information shall be provided by and in accordance with all reasonable
instructions and directions which the Purchaser may give and to the extent the
Servicer incurs any material cost or expense related to this Section 5.01 not
otherwise required to be incurred pursuant to this Agreement, such expense
shall be at the sole cost and expense of the Purchaser.
The Servicer shall execute and deliver all such instruments and
take all such action as the Purchaser may reasonably request from time to time
to the extent such action is in accordance with Accepted Servicing Practices,
in order to effectuate the purposes and to carry out the terms of this
Agreement.
Section 5.02 Financial Statements; Servicing Facilities.
In connection with marketing the Mortgage Loans or a proposed
Reconstitution, the Purchaser shall make available to a prospective purchaser
audited financial statements of the consolidated group that includes the
Servicer for the most recently completed three fiscal years for which such
statements are available, as well as a Consolidated Statement of Condition at
the end of the last two fiscal years covered by any Consolidated Statement of
Operations. The Servicer also shall make available any comparable interim
statements to the extent any such statements have been prepared by or on
behalf of the corporate group that includes the Servicer (and are available
upon request to the public at large). The Servicer shall furnish to the
Purchaser or a prospective purchaser copies of the statements specified above.
The Servicer shall make available to the Purchaser or any
prospective purchaser a knowledgeable financial or accounting officer for the
purpose of answering questions respecting recent developments affecting the
Servicer or the financial statements of the corporate group that includes the
Servicer, and to permit any prospective purchaser to inspect the Servicer's
servicing facilities for the purpose of satisfying such prospective purchaser
that the Servicer has the ability to service the Mortgage Loans as provided in
this Agreement provided that such access is necessary, reasonable, or
appropriate with respect to the Purchaser or the purposes of this Agreement to
the extent such access or information are readily accessible to the Servicer
without undue expense.
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ARTICLE VI
TERMINATION
Section 6.01 Termination.
(a) This Agreement shall terminate upon either: (i) with respect
to one or more Mortgage Loans, upon a Reconstitution pursuant to Article 14
affecting such Mortgage Loans, (ii) the termination of the Servicer pursuant
to Section 8.03 or 11.01, (iii) the later of the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan or
the disposition of any REO Property with respect to the last Mortgage Loan and
the remittance of all funds due hereunder; or (iv) mutual consent of the
Servicer and the Purchaser in writing.
(b) The Purchaser may remove, at its sole option, any rights the
Servicer may have hereunder, without cause, as provided in this Section 6.01.
Any such notice of removal shall be in writing and delivered to the Servicer
by registered mail at least 30 days prior to the effective date of removal. In
the event the Purchaser removes the Servicer without cause with respect to
some or all of the Mortgage Loans, the Purchaser shall be required to pay to
the Servicer the applicable Removal Fee.
(c) Notwithstanding and in addition to the foregoing, in the event
that (i) a Mortgage Loan becomes delinquent for a period of 120 days or more
(a "Delinquent Mortgage Loan") or (ii) a Mortgage Loan becomes an REO
Property, the Purchaser may at its election terminate this Agreement with
respect to such Delinquent Mortgage Loan or REO Property upon 15 days' written
notice to the Servicer, provided, however, upon such transfer and assignment
which shall be in accordance with all applicable laws, the Purchaser shall
reimburse the Servicer for its Servicing Fee, any outstanding and unreimbursed
Servicing Advances, and any other outstanding, unreimbursed fees and costs of
the Servicer with respect to such Delinquent Mortgage Loan.
Section 6.02 Transfer Procedures.
In the event the Servicer is replaced pursuant to the terms of
this Agreement, the Servicer agrees to cooperate with the Purchaser and with
any party designated as the successor servicer or subservicer in transferring
the servicing to such successor servicer. In addition, the Servicer shall be
responsible for notifying the related mortgagors of any transfer of servicing
in accordance with the requirements of the RESPA and the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
National Affordable Housing Act of 1990. On or before the date upon which
servicing is transferred from the Servicer to any successor servicer (the
"Subsequent Transfer Date"), the Servicer shall prepare, execute and deliver
to the successor servicer any and all documents and other instruments, place
in such successor's possession all Mortgage Loan Documents to the extent
initially provided to the Servicer or added after the Servicing Transfer Date
necessary or appropriate to effect the purposes of such notice of termination,
including but not limited to the transfer and endorsement or assignment of the
related Servicing Rights and related documents, at the expense of the
Purchaser or as otherwise in accordance with Accepted Servicing Practices. The
Servicer shall cooperate reasonably with the Purchaser and such successor in
effecting the termination of the Servicer's responsibilities and rights
hereunder.
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In the event the Servicer is replaced pursuant to the terms of
this Agreement, the Purchaser agrees to cooperate with the Servicer with
respect to the reimbursement of the Servicer by the successor servicer for
trailing expenses incurred by Servicer prior to but invoiced after the related
Subsequent Transfer Date.
On the related Subsequent Transfer Date, the Servicer shall comply
with all of the provisions of this Agreement to effect a complete transfer of
the servicing with respect to the related Mortgage Loans. Except as otherwise
provided in this Agreement, on the related Subsequent Transfer Date for each
related Mortgage Loan, this Agreement, except for Articles VI, VIII, IX, X and
Section 13.12 which shall survive the related Subsequent Transfer Date, shall
terminate with respect to such Mortgage Loan.
Subject to the limitations set forth in the definition of
"Nonrecoverable Advances", the Servicer shall be entitled to be reimbursed for
all unreimbursed Servicing Advances and any other advances made by the
Servicer pursuant to this Agreement with respect to any Mortgage Loan on the
related Transfer Date, but only if the servicer after the related Transfer
Date is not the Servicer or an affiliate. In addition, the Purchaser shall
cause the Servicer to be reimbursed for any accrued and unpaid Servicing Fees
and for any trailing expenses representing Servicing Advances for which
invoices are received by the Servicer after the Transfer Date; provided, that
the Purchaser shall not be liable for any amounts pursuant to this paragraph
unless the Servicer has requested reimbursement and delivered appropriate
evidence of such reimbursable expense. The Purchaser shall cause the Servicer
to be reimbursed for such trailing expenses within ten (10) Business Days of
such documentation. This Section 6.02(b) shall survive each Subsequent
Transfer Date.
ARTICLE VII
BOOKS AND RECORDS
Section 7.01 Possession of Servicing Files Prior to the related
Transfer Date.
Prior to the related Transfer Date, the contents of each Servicing
File are and shall be held in trust by the Servicer for the benefit of the
Purchaser as the owner thereof. The Servicer shall maintain in the Servicing
File a copy of the contents of each Mortgage File. The possession of the
Servicing File by the Servicer is at the will of the Purchaser for the sole
purpose of servicing the related Mortgage Loan, pursuant to this Agreement,
and such retention and possession by the Servicer is in its capacity as
Servicer only and at the election of the Purchaser. The Servicer shall release
its custody of the contents of any Servicing File only in accordance with
written instructions from the Purchaser, unless such release is required as
incidental to the Servicer's servicing of the Mortgage Loans pursuant to this
Agreement, or is in connection with a repurchase of any Mortgage Loan pursuant
to the Purchase Agreement.
The Servicer shall be responsible for maintaining, and shall
maintain, a complete set of books and records for each Mortgage Loan which
shall be marked clearly to reflect the ownership of each Mortgage Loan by the
Purchaser. In particular, the Servicer shall maintain in its possession,
available for inspection by the Purchaser or its designee, and shall deliver
to the Purchaser or its designee upon demand, evidence of compliance with all
federal, state and local laws, rules and regulations, and requirements of
▇▇▇▇▇▇ Mae, including but not limited to
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documentation as to the method used in determining the applicability of the
provisions of the National Flood Insurance Act of 1968, as amended, to the
Mortgaged Property, documentation evidencing insurance coverage and
eligibility of any condominium project for approval by ▇▇▇▇▇▇ ▇▇▇ and periodic
inspection reports as required by Section 2.15, as applicable.
The Servicer shall keep at its servicing office books and records
in which, subject to such reasonable regulations as it may prescribe, the
Servicer shall note transfers of Mortgage Loans. No transfer of a Mortgage
Loan may be made unless such transfer is in compliance with the terms hereof.
For the purposes of this Agreement, the Servicer shall be under no obligation
to deal with any person with respect to this Agreement or the Mortgage Loans
unless the books and records show such person as the owner of the Mortgage
Loan. The Purchaser may, subject to the terms of this Agreement, sell or
transfer one or more of the Mortgage Loans, provided, however, that (i) the
transferee will not be deemed to be a Purchaser hereunder binding upon the
Servicer unless such transferee shall agree in writing to be bound by the
terms of this Agreement and of the Assignment, Assumption and Recognition of
this Agreement executed by the transferee shall have been delivered to and
executed by the Servicer and (ii) there shall not be more than three owners of
the Mortgage Loans with respect to any particular Servicing Rights Package
inclusive of the Mortgage Loans included in a Pass-Through Transfer. The
Purchaser also shall advise the Servicer of the transfer. Upon receipt and
proper execution of the Assignment, Assumption and Recognition of this
Agreement, the Servicer shall cause its books and records to reflect the
ownership of the Mortgage Loans of such assignee, and shall release the
previous Purchaser from its obligations hereunder with respect to the Mortgage
Loans sold or transferred following the date of such sale or transfer.
ARTICLE VIII
INDEMNIFICATION AND ASSIGNMENT
Section 8.01 Indemnification.
(a) The Servicer agrees to indemnify and hold the Purchaser and
any prior servicer harmless from any liability, claim, loss or damage
(including, without limitation, any reasonable legal fees, judgments or
expenses relating to such liability, claim, loss or damage) to the Purchaser
directly or indirectly resulting from the Servicer's failure:
(i) to observe and perform any or all of Servicer's duties,
obligations, covenants, agreements, warranties or representations contained in
this Agreement; or
(ii) to comply with all applicable requirements with respect
to the servicing of the Mortgage Loans as set forth herein.
The Servicer immediately shall notify the Purchaser if a claim is
made by a third party with respect to this Agreement. For purposes of this
Section, "Purchaser" shall mean the Person then acting as the Purchaser under
this Agreement and any and all Persons who previously were "Purchasers" under
this Agreement.
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(b) The Purchaser agrees to indemnify and hold the Servicer
harmless from any liability, claim, loss or damage (including without
limitation, any reasonable legal fees, judgments or expenses relating to such
liability, claim, loss or damage) to the Servicer (a) directly or indirectly
resulting from the Purchaser's failure to observe and perform any or all of
the Purchaser's duties, obligations, covenants, agreements, warranties or
representations contained in this Agreement or (b) directly resulting from the
Servicer taking any legal actions with respect to any Mortgage Loans and/or
REO Properties in the name of the Servicer and without reference to the
Purchaser, but only to the extent such loss does not result from the failure
of the Servicer (i) to observe and perform any or all of Servicer's duties,
obligations, covenants, agreements, warranties or representations contained in
this Agreement; or (ii) to comply with all applicable requirements with
respect to the servicing of the Mortgage Loans as set forth herein.
Section 8.02 Limitation on Liability of Servicer and Others.
Neither the Servicer nor any of the directors, officers, employees
or agents of the Servicer shall be under any liability to the Purchaser for
any action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment, provided, however, that
this provision shall not protect the Servicer or any such person against any
breach of warranties or representations made herein, its own negligent
actions, or failure to perform its obligations in compliance with any standard
of care set forth in this Agreement, or any liability which would otherwise be
imposed by reason of any breach of the terms and conditions of this Agreement.
The Servicer and any director, officer, employee or agent of the Servicer may
rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising hereunder. The
Servicer shall not be under any obligation to appear in, prosecute or defend
any legal action which is not incidental to its duties to service the Mortgage
Loans in accordance with this Agreement and which in its opinion may involve
it in any expense or liability, provided, however, that the Servicer may
undertake any such action which it may deem necessary or desirable in respect
to this Agreement and the rights and duties of the parties hereto. In such
event, the Servicer shall be entitled to reimbursement from the Purchaser of
the reasonable legal expenses and costs of such action.
Section 8.03 Limitation on Resignation and Assignment by Servicer.
The Purchaser has entered into this Agreement with the Servicer
and subsequent purchasers will purchase the Mortgage Loans in reliance upon
the independent status of the Servicer, and the representations as to the
adequacy of its servicing facilities, plant, personnel, records and
procedures, its integrity, reputation and financial standing, and the
continuance thereof. Therefore, the Servicer shall not assign this Agreement
or the servicing hereunder or delegate its rights or duties hereunder or any
portion hereof or sell or otherwise dispose of all or substantially all of its
property or assets without the prior written consent of the Purchaser, which
consent shall be granted or withheld in the reasonable discretion of the
Purchaser.
The Servicer may, without the consent of the Purchaser, retain
third party contractors to perform certain servicing and loan administration
functions, including without limitation, hazard insurance administration, tax
payment and administration, flood certification and administration, collection
services and similar functions; provided, that the retention of such
contractors by Servicer shall not limit the obligation of the Servicer to
service the Mortgage Loans pursuant to the terms and conditions of this
Agreement.
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The Servicer shall not resign from the obligations and duties
hereby imposed on it except by mutual consent of the Servicer and the
Purchaser or upon the determination that its duties hereunder are no longer
permissible under applicable law and such incapacity cannot be cured by the
Servicer. Any such determination permitting the resignation of the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Purchaser which Opinion of Counsel shall be in form and substance acceptable
to the Purchaser. No such resignation shall become effective until a successor
shall have assumed the Servicer's responsibilities and obligations hereunder
in the manner provided in Section 6.02.
Without in any way limiting the generality of this Section 8.03,
in the event that the Servicer either shall assign this Agreement or the
servicing responsibilities hereunder or delegate its duties hereunder or any
portion thereof or sell or otherwise dispose of all or substantially all of
its property or assets to without the prior written consent of the Purchaser,
then the Purchaser shall have the right to terminate this Agreement upon
notice given as set forth in Section 6.01(a)(ii), without any payment of any
penalty or damages and without any liability whatsoever to the Servicer or any
third party.
Notwithstanding any provision in this Agreement to the contrary,
the Servicer may at any time upon notice to the Purchaser, or trustee in the
case of a Reconstitution, and without the consent of any party, solely in
connection with a financing or other facility (any such arrangement, an
"Advance Facility"), assign as collateral security or pledge to another Person
all its rights, title and interest under this Agreement to the Servicing
Rights and its rights to reimbursement of Servicing Advances.
Section 8.04 Assignment by Purchaser.
Subject to the limitations and requirements set forth in the third
paragraph of Section 7.01, the Purchaser shall have the right, to assign, in
whole or in part, its interest under this Agreement with respect to some or
all of the Mortgage Loans, and designate any person to exercise any rights of
the Purchaser hereunder, by executing an Assignment, Assumption and
Recognition Agreement substantially in the form of Exhibit 6 attached hereto
provided that there shall not be more than three owners of the Mortgage Loans
with respect to any particular Servicing Rights Package inclusive of the
Mortgage Loans included in a Pass-Through Transfer. Upon such assignment of
rights and assumption of obligations, the assignee or designee shall accede to
the rights and obligations hereunder of the Purchaser with respect to such
Mortgage Loans and the Purchaser as assignor shall be released from all
obligations hereunder with respect to such Mortgage Loans from and after the
date of proper execution and delivery of such Assignment, Assumption and
Recognition Agreement by the Servicer in accordance with Section 7.01. All
references to the Purchaser in this Agreement shall be deemed to include its
permitted assignee or designee.
Section 8.05 Merger or Consolidation of the Servicer.
The Servicer will keep in full effect its existence, rights and franchises as
a limited partnership under the laws of the state of its filing except as
permitted herein, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its duties under this Agreement. Any Person into which the Servicer may be
merged or consolidated, or any corporation resulting from any
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merger, conversion or consolidation (including by means of the sale of all or
substantially all of the Servicer's assets to such Person) to which the
Servicer shall be a party, or any Person succeeding to the business of the
Servicer (whether or not related to loan servicing), shall be the successor of
the Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the Servicer shall not,
without the prior written approval of the Purchaser, be a party to any such
merger, conversion or consolidation, or sell or otherwise dispose of all or
substantially all of its business or assets if, (i) as a result of such
merger, conversion or consolidation, sale or other disposition, an Event of
Default under Section 11.01 hereof would exist with respect to such successor
Servicer or (ii) such successor has (a) a residential primary servicer rating
for servicing of mortgage loans issued by Standard & Poor's Rating Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., Fitch, Inc. or ▇▇▇▇▇'▇ Investors
Service, Inc. below "average" or its equivalent or (b) a net worth of less
than $25,000,000.
The Servicer shall give 90 days' prior written notice to the
Purchaser to the extent permitted by applicable law of any such merger,
conversion, consolidation, sale or other disposition to which the Servicer
proposes to be a party. In the event that any successor entity to the Servicer
fails to meet the requirements set forth in this Section 8.05 and the
Purchaser does not consent to such successor becoming the servicer hereunder,
then the Servicer shall have the right to terminate this Agreement with
respect to the Servicer and any such successor upon notice given as set forth
in Section 6.01, without any payment of any termination penalty or termination
damages and without any additional liability whatsoever to the Servicer or any
third party, except for liabilities accrued under this Agreement prior to the
date of termination and for liabilities resulting from Purchaser's obligations
hereunder, including the payment of the Servicing Fee pursuant to Section
4.03.
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER
As of each Transfer Date, the Purchaser warrants and represents
to, and covenants and agrees with, the Servicer as follows:
Section 9.01 Organization and Good Standing; Licensing.
The Purchaser is a New York limited partnership duly organized,
validly existing and has the power and authority to own its assets and to
transact the business in which it is currently engaged.
Section 9.02 Authorization; Binding Obligations.
The Purchaser has the power and authority to make, execute,
deliver and perform this Agreement, and perform all of the transactions
contemplated to be performed by it under this Agreement, and has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement. When executed and delivered, this Agreement will constitute the
legal, valid and binding obligation of the Purchaser enforceable in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights generally and
by the availability of equitable remedies.
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Section 9.03 No Consent Required.
The Purchaser is not required to obtain the consent of any other
party 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 Agreement, except such as have been obtained or made or
as to which the failure to obtain or make will not materially adversely affect
the ability of the Purchaser to perform all obligations hereunder.
Section 9.04 No Violations.
The execution, delivery and performance of this Agreement by the
Purchaser will not violate any provision of any existing law or regulation or
any order or decree of any court applicable to the Purchaser, except for
violations that will not adversely affect the Purchaser's ability to perform
its obligations under this Agreement or the certificate of incorporation of
the Purchaser, or constitute a material breach of any mortgage, indenture,
contract or other agreement to which the Purchaser is a party or by which the
Purchaser may be bound.
Section 9.05 Litigation.
No litigation or administrative proceeding of or before any court,
tribunal or governmental body is currently pending or to the knowledge of the
Purchaser threatened, against the Purchaser or with respect to this Agreement,
which if adversely determined would have a material adverse effect on the
transactions contemplated by this Agreement.
Section 9.06 Good Title.
The Purchaser is the sole holder of the Servicing Rights in
respect of each Mortgage Loan and has good and marketable title to and has the
right to assign and transfer the Servicing Rights, and to assign, transfer and
deliver the Servicing Rights as contemplated by this Agreement free and clear
of any and all claims, charges, defenses, security interests, liens, offsets
and encumbrances. The sale, transfer and assignment of the Servicing Rights by
the Purchaser are valid and enforceable and will effectively vest in the
Servicer good title to the Servicing Rights, free and clear of any and all
liens, claims and encumbrances.
Section 9.07 Compliance with Law.
The Purchaser has complied in all material respects with all
applicable laws, the violation of which might materially and adversely affect
the Servicing Rights, or delay the consummation of the transactions
contemplated hereby.
Section 9.08 Remedies for Breach of Representations and
Warranties.
It is understood and agreed that the representations and
warranties set forth in this Article IX shall survive the sale of the
Servicing Rights to the Servicer and shall inure to the benefit of the
Servicer, notwithstanding any restrictive or qualified endorsement on any
Mortgage Note or Assignment of Mortgage or the examination or failure to
examine any Mortgage File. Upon discovery by either the Purchaser or the
Servicer of a breach of any of the foregoing representations and warranties,
the party discovering such breach shall give prompt written notice to the
other party.
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Within 60 days of the earlier of either discovery by or notice to
the Purchaser of any such breach of a representation or warranty which
materially and adversely affects the ownership interest of the Servicer in the
Servicing Rights related to any Mortgage Loan, the Purchaser shall use its
best efforts to promptly cure such breach in all material respects and, if
such breach cannot be cured, the Purchaser shall, at the Servicer's option,
repurchase the Servicing Rights affected by such breach at the Servicing
Repurchase Price. In the event of any such repurchase, the Purchaser agrees to
comply with the transfer procedures set forth in Section 2.02 of this
Agreement.
Any cause of action against the Purchaser relating to or arising
out of the breach of any representations and warranties made in this Article
IX shall accrue as to any Mortgage Loan upon (i) discovery of such breach by
the Servicer or notice thereof by the Purchaser to the Servicer, (ii) failure
by the Purchaser to cure such breach or repurchase such Servicing Rights
related to such Mortgage Loan as specified above, and (iii) demand upon the
Purchaser by the Servicer for compliance with this Agreement.
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF SERVICER
As of each Transfer Date, the Servicer warrants and represents to,
and covenants and agrees with, the Purchaser as follows:
Section 10.01 Due Organization and Authority.
The Servicer is a Texas corporation duly organized, validly
existing and in good standing under the laws of the United States as now being
conducted and is licensed, qualified and in good standing in each state where
a Mortgaged Property is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by the
Servicer, and in any event the Servicer is in compliance with the laws of any
such state to the extent necessary to ensure the enforceability of the related
Mortgage Loan in accordance with the terms of this Agreement; the Servicer has
the full corporate power and authority to execute and deliver this Agreement
and to perform in accordance herewith; the execution, delivery and performance
of this Agreement (including all instruments or transfer to be delivered
pursuant to this Agreement) by the Servicer and the consummation of the
transactions contemplated hereby have been duly and validly authorized; this
Agreement evidences the valid, binding and enforceable obligation of the
Servicer; and all requisite corporate action has been taken by the Servicer to
make this Agreement valid and binding upon the Servicer in accordance with its
terms;
Section 10.02 Ordinary Course of Business.
The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Servicer.
Section 10.03 No Conflicts.
Neither the execution and delivery of this Agreement, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of the Servicer's charter or by-laws or any
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legal restriction or any agreement or instrument to which the Servicer is now
a party or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of any
law, rule, regulation, order, judgment or decree to which the Servicer or its
property is subject, or impair the ability of the Purchaser to realize on the
Mortgage Loans, or impair the value of the Mortgage Loans.
Section 10.04 Ability to Service.
The Servicer has the facilities, procedures, and experienced
personnel necessary for the sound servicing of mortgage loans of the same type
as the Mortgage Loans. The Servicer is in good standing to enforce and service
mortgage loans in the jurisdiction wherein the Mortgaged Properties are
located.
Section 10.05 Ability to Perform.
The Servicer does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant contained in
this Agreement.
Section 10.06 No Litigation Pending.
There is no action, suit, proceeding or investigation pending or
to the best of Servicer's knowledge threatened against the Servicer, before
any court, administrative agency or other tribunal asserting the invalidity of
this Agreement, seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of the Servicer, or in
any material impairment of the right or ability of the Servicer to carry on
its business substantially as now conducted, or in any material liability on
the part of the Servicer, or which would draw into question the validity of
this Agreement, or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Servicer contemplated herein, or which
would be likely to impair materially the ability of the Servicer to perform
under the terms of this Agreement.
Section 10.07 No Consent Required.
No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer of or compliance by the Servicer with this
Agreement, or the servicing of the Mortgage Loans as evidenced by the
consummation of the transactions contemplated by this Agreement, or if
required, such approval has been obtained prior to the date hereof.
Section 10.08 No Untrue Information.
No statement, report or other document relating to the Servicer
furnished or to be furnished by the Servicer pursuant to this Agreement or in
connection with the transactions contemplated hereby contains any untrue
statement of material fact or omits to state a material fact necessary to make
the statements contained therein not misleading.
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ARTICLE XI
DEFAULT
Section 11.01 Events of Default.
The following shall constitute an Event of Default under this
Agreement on the part of the Servicer:
(a) any failure by the Servicer to remit to the Purchaser any
payment required to be made under the terms of this Agreement which continues
unremedied for a period of two (2) Business Days after the date upon which
notice of such failure is given to the Servicer, requiring the same to be
remedied, shall have been given to the Servicer by the Purchaser; or
(b) any failure by the Servicer to comply with Sections 4.04,
4.05, 4.06 hereof or and Event of Default as set forth in Section
15.07(b)(i)-(ii) hereof shall occur;
(c) the failure by the Servicer in any month, to deliver to the
Purchaser the Data Dictionary on the Data Dictionary Delivery Date;
(d) the failure by the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Servicer set forth in this Agreement or in the Custodial Agreement which
continues unremedied for a period of 30 days after the date on which notice of
such failure, requiring the same to be remedied, shall have been given to the
Servicer by the Purchaser (the date of delivery of such notice, the "Notice
Date"); provided, however, that in the case of a failure that cannot be cured
within thirty (30) days after the Notice Date, the cure period may be extended
if the Servicer can demonstrate to the reasonable satisfaction of the
Purchaser that the failure can be cured and the Servicer is diligently
pursuing remedial action; or
(e) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for
a period of 60 days; or
(f) the Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property; or
(g) 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;
or
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(h) the Servicer fails to maintain its license to do business or
service residential mortgage loans in any jurisdiction where the Mortgaged
Properties are located for more than thirty (30) days after receiving notice
from any Person thereof; or
(i) Any reduction, withdrawal or qualification of the servicing
credit of the Servicer by any Rating Agency which results in the inability of
the Servicer to act as a primary or special servicer for any mortgage-backed
or asset-backed transaction rated or to be rated by any such Rating Agency; or
(j) the Servicer attempts to assign its right to servicing
compensation hereunder or the Servicer attempts, without the consent of the
Purchaser, to sell or otherwise dispose of all or substantially all of its
property or assets or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any portion
thereof in a manner not permitted under this Agreement; provided that a
collateral assignment pursuant to an Advance Facility pursuant to Section 8.03
hereof shall not constitute an Event of Default.
In each and every such case, so long as an Event of Default shall not have
been remedied, in addition to whatsoever rights the Purchaser may have at law
or equity to damages, including injunctive relief and specific performance,
the Purchaser, by notice in writing to the Servicer, may terminate without
compensation all the rights and obligations of the Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof; provided
however that the rights of Servicer to reimbursement of Servicing Fees and
Servicing Advances which accrue prior to the occurrence of an Event of Default
shall survive such Event of Default and any related termination pursuant
thereto.
Upon receipt by the Servicer of such written notice, all authority
and power of the Servicer under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 6.02. Upon written request from the Purchaser,
the Servicer shall prepare, execute and deliver any and all documents and
other instruments, place in such successor's possession all Mortgage Files to
the extent initially provided to the Servicer, and do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice
of termination, whether to complete the transfer and endorsement or assignment
of the Mortgage Loans and related documents, or otherwise, at the Servicer's
sole expense or as otherwise provided under Accepted Servicing Practices. The
Servicer agrees to cooperate with the Purchaser and such successor in
effecting the termination of the Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by the Servicer to the Custodial Account or Escrow Account or thereafter
received with respect to the Mortgage Loans.
Section 11.02 Waiver of Defaults.
The Purchaser may waive any default by the Servicer in the
performance of its obligations hereunder and its consequences. Upon any such
waiver of a past default, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
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ARTICLE XII
CLOSING
Section 12.01 Closing Documents.
The Closing Documents shall consist of fully executed originals of
the following documents:
With respect to the initial Transfer Date:
1. this Agreement;
2. a Custodial Account Letter Agreement or a Custodial Account
Certification, as applicable, as required hereunder, in the form
of either Exhibit 2 or 3 hereto;
3. an Escrow Account Letter Agreement or an Escrow Account
Certification, as applicable, as required hereunder, in the form
of either Exhibit 4 or 5 hereto;
4. an Officer's Certificate, substantially in the form of Exhibit 6
hereto, with respect to the Servicer and the Purchaser, including
all attachments thereto; and
With respect to each Transfer Date:
1. An Acknowledgment Agreement, in the form of Exhibit 10 hereto; and
2. A Mortgage Loan Schedule;
3. A Servicer Acknowledgment;
4. A copy of the related Purchase Agreement.
Section 12.02 Closing Conditions.
(a) The Servicer's obligations to consummate its purchase and the
Purchaser's obligations to consummate its sale of the related Servicing Rights
pursuant to this Agreement are subject to the satisfaction or waiver on or
prior to the related Transfer Date of the following conditions:
(i) To the extent agreed to in the Commitment Letter, the
Purchaser shall have made, and shall have caused any applicable document
custodian to make, at mutually agreeable reasonable times and places,
the Mortgage Notes and other documents and files related to each
Mortgage Loan available to the Servicer for review;
(ii) The Servicer and the Purchaser shall have performed in all
material respects all of the related covenants and agreements contained
in this Agreement, and other related documents referenced and/or
incorporated herein by reference, which are required to be performed by
them on or prior to the related Transfer Date;
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(iii) All of the representations and warranties of the Servicer
and the Purchaser contained in this Agreement, and other related
documents referenced and/or incorporated herein by reference shall be
true and correct in all material respects as of the related Transfer
Date;
(iv) The Servicer shall have received the related Assignment and
Conveyance from the Purchaser on the related Transfer Date; and
(v) The Servicer and the Purchaser shall have executed and
delivered this Servicing Agreement and such Agreement shall be in force
and effect.
(b) Subject to satisfaction or waiver of each of the conditions
set forth in Section 12.02(a), the Servicer shall pay the Purchase Price to
the Purchaser on the related Transfer Date.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Notices.
All notices, requests, demands and other communications which are
required or permitted to be given under this Agreement shall be in writing and
shall be deemed to have been duly given upon the delivery or mailing thereof,
as the case may be, sent by registered or certified mail, return receipt
requested:
(a) If to Purchaser to:
▇▇▇▇▇▇▇ Sachs Mortgage Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(b) If to Servicer:
Saxon Mortgage Services, Inc
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, President
with a copy to:
Saxon Mortgage Services, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Section 13.02 Waivers.
Any of the Servicer or the Purchaser may upon consent of all
parties, by written notice to the others:
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(a) Waive compliance with any of the terms, conditions or
covenants required to be complied with by the others hereunder; and
(b) Waive or modify performance of any of the obligations of the
others hereunder.
The waiver by any party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any other
subsequent breach.
Section 13.03 Entire Agreement; Amendment.
This Agreement, including all documents and exhibits incorporated
by reference herein, constitutes the entire agreement between the parties with
respect to servicing of the Mortgage Loans. This Agreement may be amended and
any provision hereof waived, but, only in writing signed by the party against
whom such enforcement is sought.
Section 13.04 Execution; Binding Effect.
This Agreement may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together,
shall constitute one and the same agreement. Subject to Sections 8.03 and
8.04, this Agreement shall inure to the benefit of and be binding upon the
Servicer and the Purchaser and their respective permitted successors and
assigns.
Section 13.05 Headings.
Headings of the Articles and Sections in this Agreement are for
reference purposes only and shall not be deemed to have any substantive
effect.
Section 13.06 Applicable Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES), EXCEPT TO THE EXTENT
PREEMPTED BY FEDERAL LAW.
Section 13.07 Relationship of Parties.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties. The duties and
responsibilities of the Servicer shall be rendered by it as an independent
contractor and not as an agent of the Purchaser. The Servicer shall have full
control of all of its acts, doings, proceedings, relating to or requisite in
connection with the discharge of its duties and responsibilities under this
Agreement.
Section 13.08 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be held invalid for any reason whatsoever, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement.
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Section 13.09 Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the Assignments
of Mortgage is subject to recordation in all appropriate public offices for
real property records in all the counties or other comparable jurisdictions in
which any or all of the Mortgaged Properties are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Purchaser or the Purchaser's designee.
Section 13.10 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are integral parts of this Agreement.
Section 13.11 Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
Section 13.12 No Solicitation.
From and after the related Transfer Date, the Purchaser and the
Servicer each agree that it will not take any action or permit or cause any
action to be taken by any of its agents or affiliates, or by any independent
contractors on its behalf, to personally, by telephone or mail, solicit the
Mortgagor under any Mortgage Loan for any purpose whatsoever, including to
refinance a Mortgage Loan, in whole or in part, without the prior written
consent of the Purchaser;. Notwithstanding the foregoing, it is understood and
agreed that promotions undertaken by the such parties or any affiliate of such
parties which are directed to the general public at large, including, without
limitation, mass mailing, internet and e-mail solicitations, based in all
instances, on commercially acquired mailing lists (which may not be targeted
at the Mortgagors) and newspaper, radio and television advertisements shall
not constitute solicitation under this Section 13.12.
Notwithstanding the foregoing, Servicer may solicit any Mortgagor
for whom Servicer has received a request for verification of mortgage, a
request for a demand for payoff, or a Mortgagor-initiated written or verbal
communication indicating a desire to prepay the related Mortgage Loan;
provided further, that it is understood and agreed that promotions undertaken
by Servicer or any of its affiliates related to (i) optional insurance or
other ancillary products or (ii) are directed to the general public at large,
including without limitation, mass mailings based on commercially acquired
mailing lists, newspaper, radio, and television advertisements, shall not
constitute solicitation under this Section, nor is the Servicer prohibited
from responding to unsolicited requests or inquiries made by a Mortgagor or an
agent of a Mortgagor.
Section 13.13 Waiver of Trial by Jury.
THE SERVICER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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Section 13.14 LIMITATION OF DAMAGES.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE
PARTIES AGREE THAT NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL OR EQUITABLE
PRINCIPLE, PROVIDED, HOWEVER, THAT SUCH LIMITATION SHALL NOT BE APPLICABLE
WITH RESPECT TO THIRD PARTY CLAIMS MADE AGAINST A PARTY.
Section 13.15 SUBMISSION TO JURISDICTION; WAIVERS.
The Servicer and Purchaser hereby irrevocably and unconditionally:
(a) SUBMITS FOR ITSELF IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO ▇▇▇ IN ANY OTHER JURISDICTION.
ARTICLE XIV COOPERATION OF SERVICER WITH A RECONSTITUTION.
(a) The Servicer and the Purchaser agree that with respect to some
or all of the Mortgage Loans, the Purchaser may effect one or more Whole Loan
Transfers, and/or one or more Pass-Through Transfers. With respect to each
Whole Loan Transfer or Pass-Through Transfer, as the case may be, entered into
by the Purchaser, the Servicer agrees:
(i) to cooperate with the Purchaser and any prospective purchaser
with respect to all reasonable requests and due diligence procedures
including participating in meetings with rating agencies, bond insurers
and such other parties as the Purchaser shall designate and
participating in meetings with prospective purchasers of the Mortgage
Loans or interests therein and providing information reasonably
requested by such purchasers;
(ii) to execute, in connection with a Whole Loan Transfer, a
seller's warranties and servicing agreement or a participation and
servicing agreement in form and substance
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reasonably acceptable to the Purchaser, and in connection with a
Pass-Through Transfer, a pooling and servicing agreement or sale and
servicing agreement in form and substance reasonably acceptable to the
Purchaser (collectively, "Reconstitution Agreements") provided that each
of the Servicer and the Purchaser is given an opportunity to review and
reasonably negotiate in good faith the content of such documents not
specifically referenced or provided for herein;
(iii) to cooperate with the Purchaser and any prospective
purchaser with respect to the preparation (including, but not limited
to, the endorsement, delivery, assignment, and execution) of Mortgage
Loan Documents and other related documents, with respect to servicing
requirements reasonably requested by the rating agencies and credit
enhancers;
(iv) to negotiate and execute one or more subservicing agreements
between the Servicer and the Purchaser and/or any master servicer which
is generally considered to be a prudent master servicer in the secondary
mortgage market, designated by the Purchaser in its sole discretion
after consultation with the Servicer and/or one or more custodial and
servicing agreements among the Purchaser, the Servicer and a third parry
custodian/trustee which is generally considered to be a prudent
custodian/trustee in the secondary mortgage market designated by the
Purchaser in its sole discretion after consultation with the Servicer,
in either case for the purpose of pooling the Mortgage Loans with other
mortgage loans not the subject of this Agreement in connection with a
Reconstitution; and
(v) in connection with any Reconstitution, to execute a pooling
and servicing agreement, which pooling and servicing agreement may
contain contractual provisions typical in the secondary market provided
such provisions will not contain any substantially greater obligations
of, or any substantially lower benefits to, the Servicer than those
contained in this Agreement and the Servicer is given an opportunity to
review and reasonably negotiate in good faith the content of such
provisions (which shall not be more onerous than those required under
this Agreement) including, but not limited to servicing representations
and warranties (dated as of the settlement or closing date in connection
with such Reconstitution (each, a "Reconstitution Date")) related to the
Mortgage Loans for the period of time from the date on which the
Servicer began servicing the Mortgage Loans through the Reconstitution
Date to the effect that (a) the Servicer has serviced the Mortgage Loans
in accordance with this Agreement and has provided accurate "paid
through" data with respect to the Mortgage Loans to the Purchaser, (b)
except as reflected in the "paid through" data delivered to the
Purchaser, there is no payment default existing under any Mortgage or
any Mortgage Note as of the cut-off date for the Reconstitution, and (c)
there is no non-payment default existing under any Mortgage or Mortgage
Note, or any event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a
non-payment default, breach, violation or event which would permit
acceleration as of the closing date for the Reconstitution; and
representations and warranties (dated as of the Reconstitution Date). No
Reconstitution Agreement shall require the Servicer to (i) agree to any
servicing obligation in excess of those set forth herein which are not
customary industry practice for similar transactions, or (ii) consent to
a servicing fee that is lower than the
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Servicing Fee. Servicer shall cooperate in good faith in negotiating any
delinquency and cumulative loss termination triggers in the pooling and
servicing agreement. The Servicer shall indemnify Purchaser, each
Affiliate of the Purchaser participating in any such Reconstitution and
each Person who controls the Purchaser or such Affiliate and hold each
of them harmless from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses that each of them may
sustain in any way related to any information provided by or on behalf
of the Servicer regarding the Servicer or the Servicer's servicing
practices or performance (the "Servicer Information") set forth in any
offering document prepared in connection with such Reconstitution. For
purposes of the previous sentence, "Purchaser" shall mean the Person
then acting as the Purchaser under this Agreement and any and all
Persons who previously were "Purchasers" under this Agreement. The
Purchaser shall indemnify the Servicer, each Affiliate designated by the
Servicer and each Person who controls the Servicer or such Affiliate and
hold each of them harmless from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that
each of them may sustain in any way related to any information provided
by the Purchaser in any offering document prepared in connection with
any Reconstitution.
Any execution of a subservicing agreement or pooling and servicing agreement
by the Servicer shall be conditioned on the Servicer receiving the Servicing
Fee or such other servicing fee acceptable to Servicer. Notwithstanding any
provision to the contrary in this Agreement, in the event that the Servicer is
the master servicer, servicer or sub-servicer with respect to a
Reconstitution, the Purchaser agrees that in such Reconstitution any servicing
performance termination triggers shall be approved by the Servicer in its
reasonable discretion; provided, that in the event that the Servicer does not
approve any servicing performance termination triggers, the Purchaser shall
have the right to terminate the Servicer hereunder (a "Servicing Performance
Trigger Termination") and designate a successor servicer to act as master
servicer, servicer or sub-servicer with respect to the Reconstitution, subject
to payment of the Removal Fee pursuant to Section 6.01(b) .
All Mortgage Loans not sold or transferred pursuant to a Whole Loan Transfer
or Pass-Through Transfer shall be subject to this Agreement and shall continue
to be serviced in accordance with the terms of this Agreement and with respect
thereto this Agreement shall remain in full force and effect.
ARTICLE XV COMPLIANCE WITH REGULATION AB
Section 15.01 Intent of the Parties; Reasonableness.
The Purchaser and the Servicer acknowledge and agree that the
purpose of Article 15 of this Agreement is to facilitate compliance by the
Purchaser and any Depositor with the provisions of Regulation AB and related
rules and regulations of the Commission. Although Regulation AB is applicable
by its terms only to offerings of asset-backed securities that are registered
under the Securities Act, the Servicer acknowledges that investors in
privately offered securities may require that the Purchaser or any Depositor
provide comparable disclosure in
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unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private offerings.
Neither the Purchaser nor any Depositor shall exercise its right
to request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the
Commission thereunder (or the provision in a private offering of disclosure
comparable to that required under the Securities Act). The Servicer
acknowledges that interpretations of the requirements of Regulation AB may
change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply with
requests made by the Purchaser or any Depositor in good faith for delivery of
information under these provisions on the basis of evolving interpretations of
Regulation AB. In connection with any Securitization Transaction, the Servicer
shall cooperate fully with the Purchaser to deliver to the Purchaser
(including any of its assignees or designees) and any Depositor, any and all
statements, reports, certifications, records and any other information
necessary in the good faith determination of the Purchaser or any Depositor to
permit the Purchaser or such Depositor to comply with the provisions of
Regulation AB, together with such disclosures relating to the Servicer, any
Subservicer and the Mortgage Loans, or the servicing of the Mortgage Loans,
reasonably believed by the Purchaser or any Depositor to be necessary in order
to effect such compliance.
The Purchaser (including any of its assignees or designees) shall
cooperate with the Servicer by providing timely notice of requests for
information under these provisions and by reasonably limiting such requests to
information required, in the Purchaser's reasonable judgment, to comply with
Regulation AB.
Section 15.02 Additional Representations and Warranties of the
Servicer.
(a) The Servicer shall be deemed to represent to the Purchaser and
to any Depositor, as of the date on which information is first provided to the
Purchaser or any Depositor under Section 15.03 that, except as disclosed in
writing to the Purchaser or such Depositor prior to such date: (i) the
Servicer is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any
other securitization due to any act or failure to act of the Servicer; (ii)
the Servicer has not been terminated as servicer in a residential mortgage
loan securitization, either due to a servicing default or to application of a
servicing performance test or trigger; (iii) no material noncompliance with
the applicable servicing criteria with respect to other securitizations of
residential mortgage loans involving the Servicer as servicer has been
disclosed or reported by the Servicer; (iv) no material changes to the
Servicer's policies or procedures with respect to the servicing function it
will perform under this Agreement and any Reconstitution Agreement for
mortgage loans of a type similar to the Mortgage Loans have occurred during
the three-year period immediately preceding the related Securitization
Transaction; (v) there are no aspects of the Servicer's financial condition
that could have a material adverse effect on the performance by the Servicer
of its servicing obligations under this Agreement or any Reconstitution
Agreement; (vi) there are no material legal or governmental proceedings
pending (or known to be contemplated) against the Servicer or any Subservicer;
and (vii) there are no affiliations, relationships or transactions relating to
the
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Servicer or any Subservicer with respect to any Securitization Transaction and
any party thereto identified by the related Depositor of a type described in
Item 1119 of Regulation AB.
(b) If so requested by the Purchaser or any Depositor on any date
following the date on which information is first provided to the Purchaser or
any Depositor under Section 15.03, the Servicer shall, within five Business
Days following such request, confirm in writing the accuracy of the
representations and warranties set forth in paragraph (a) of this Section or,
if any such representation and warranty is not accurate as of the date of such
request, provide reasonably adequate disclosure of the pertinent facts, in
writing, to the requesting party.
Section 15.03 Information to Be Provided by the Servicer.
In connection with any Securitization Transaction the Servicer
shall (i) within five Business Days following request by the Purchaser or any
Depositor, provide to the Purchaser and such Depositor (or cause each
Subservicer to provide), in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor, the information and
materials specified in paragraphs (a), (c) and (f) of this Section, and (ii)
as promptly as practicable following notice to or discovery by the Servicer,
provide to the Purchaser and any Depositor (in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor) the
information specified in paragraph (d) of this Section.
(a) If so requested by the Purchaser or any Depositor, the Servicer
shall provide such information regarding each Subservicer, as is requested for
the purpose of compliance with Items 1103(a)(1), 1117 and 1119 of Regulation
AB. Such information shall include, at a minimum:
(A) [Reserved];
(B) [Reserved];
(C) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against the Servicer
and each Subservicer; and
(D) a description of any affiliation or relationship between the
Servicer, each Subservicer and any of the following parties to a
Securitization Transaction, as such parties are identified to the
Servicer by the Purchaser or any Depositor in writing in advance of such
Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) [Reserved].
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(c) If so requested by the Purchaser or any Depositor, the Servicer
shall provide such information regarding the Servicer, as servicer of the
Mortgage Loans, and each Subservicer (each of the Servicer and each
Subservicer, for purposes of this paragraph, a "Transaction Servicer"), as is
requested for the purpose of compliance with Item 1108 of Regulation AB. Such
information shall include, at a minimum:
(A) the Transaction Servicer's form of organization;
(B) a description of how long the Transaction Servicer has been
servicing residential mortgage loans; a general discussion of the
Transaction Servicer's experience in servicing assets of any type as
well as a more detailed discussion of the Transaction Servicer's
experience in, and procedures for, the servicing function it will
perform under this Agreement and any Reconstitution Agreements;
information regarding the size, composition and growth of the
Transaction Servicer's portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the
Transaction Servicer that may be material, in the good faith judgment of
the Purchaser or any Depositor, to any analysis of the servicing of the
Mortgage Loans or the related asset-backed securities, as applicable,
including, without limitation:
(1) whether any prior securitizations of mortgage loans of a
type similar to the Mortgage Loans involving the Transaction
Servicer have defaulted or experienced an early amortization or
other performance triggering event because of servicing during the
three-year period immediately preceding the related Securitization
Transaction;
(2) the extent of outsourcing the Transaction Servicer
utilizes;
(3) whether there has been previous disclosure of material
noncompliance with the applicable servicing criteria with respect
to other securitizations of residential mortgage loans involving
the Transaction Servicer as a servicer during the three-year
period immediately preceding the related Securitization
Transaction;
(4) whether the Transaction Servicer has been terminated as
servicer in a residential mortgage loan securitization, either due
to a servicing default or to application of a servicing
performance test or trigger; and
(5) such other information as the Purchaser or any Depositor
may reasonably request for the purpose of compliance with Item
1108(b)(2) of Regulation AB;
(C) a description of any material changes during the three-year
period immediately preceding the related Securitization Transaction to
the Transaction Servicer's policies or procedures with respect to the
servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of a type similar to the
Mortgage Loans;
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(D) information regarding the Transaction Servicer's financial
condition, to the extent that there is a material risk that an adverse
financial event or circumstance involving the Transaction Servicer could
have a material adverse effect on the performance by the Transaction
Servicer of its servicing obligations under this Agreement or any
Reconstitution Agreement;
(E) information regarding advances made by the Transaction
Servicer on the Mortgage Loans and the Transaction Servicer's overall
servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction,
which may be limited to a statement by an authorized officer of the
Transaction Servicer to the effect that the Transaction Servicer has
made all advances required to be made on residential mortgage loans
serviced by it during such period, or, if such statement would not be
accurate, information regarding the percentage and type of advances not
made as required, and the reasons for such failure to advance;
(F) a description of the Transaction Servicer's processes and
procedures designed to address any special or unique factors involved in
servicing loans of a similar type as the Mortgage Loans;
(G) a description of the Transaction Servicer's processes for
handling delinquencies, losses, bankruptcies and recoveries, such as
through liquidation of mortgaged properties, sale of defaulted mortgage
loans or workouts; and
(H) information as to how the Transaction Servicer defines or
determines delinquencies and charge-offs, including the effect of any
grace period, re-aging, restructuring, partial payments considered
current or other practices with respect to delinquency and loss
experience.
(d) If so requested by the Purchaser or any Depositor for the purpose of
satisfying its reporting obligation under the Exchange Act with respect to any
class of asset-backed securities, the Servicer shall (or shall cause each
Subservicer to) (i) notify the Purchaser and any Depositor in writing of (A)
any material litigation or governmental proceedings pending against the
Servicer or any Subservicer and (B) any affiliations or relationships that
develop following the closing date of a Securitization Transaction between the
Servicer or any Subservicer and any of the parties specified in clause (D) of
paragraph (a) of this Section (and any other parties identified in writing by
the requesting party) with respect to such Securitization Transaction, and
(ii) provide to the Purchaser and any Depositor a description of such
proceedings, affiliations or relationships.
(e) As a condition to the succession to the Servicer or any Subservicer
as servicer or subservicer under this Agreement or any Reconstitution
Agreement by any Person (i) into which the Servicer or such Subservicer may be
merged or consolidated, or (ii) which may be appointed as a successor to the
Servicer or any Subservicer, the Servicer shall provide to the Purchaser and
any Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Purchaser and any
Depositor of such succession or appointment and (y) in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, all
information reasonably requested by the Purchaser or any
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Depositor in order to comply with its reporting obligation under Item 6.02 of
Form 8-K with respect to any class of asset-backed securities.
(f) In addition to such information as the Servicer, as servicer, is
obligated to provide pursuant to other provisions of this Agreement, if so
requested by the Purchaser or any Depositor, the Servicer shall provide such
information reasonably available to the Servicer regarding the performance or
servicing of the Mortgage Loans as is reasonably required by the Purchaser or
any Depositor to facilitate preparation of distribution reports in accordance
with Item 1121 of Regulation AB and to permit the Purchaser or such Depositor
to comply with the provisions of Regulation AB relating to Static Pool
Information regarding the performance of the Mortgage Loans on the basis of
the Purchaser's or such Depositor's reasonable, good faith interpretation of
the requirements of Item 1105(a)(1)-(3) of Regulation AB (including without
limitation as to the format and content of such Static Pool Information). Such
information shall be provided concurrently with the monthly reports otherwise
required to be delivered by the Servicer under this Agreement, commencing with
the first such report due not less than ten (10) Business Days following such
request.
(g) The Servicer shall provide to each originator of a Mortgage Loan (or
if such Mortgage Loan was not sold to Purchaser by the originator, the seller
of such Mortgage Loan) (the "Static Pool Party") information with respect to
each Mortgage Loan from and after the date Servicer commences servicing such
Mortgage Loan necessary for such Static Pool Party to comply with its
obligations under Regulation AB, including, without limitation, providing to
the Static Pool Party static pool information, as set forth in Item 1105(a)(2)
and (5) of Regulation AB.
(h) Promptly following notice or discovery of a material error in the
information provided pursuant to the immediately preceding paragraph
(including an omission to include therein information required to be provided
pursuant to such paragraph), the Servicer shall provide corrected static pool
information to the Purchaser in the same format in which static pool
information was previously provided to such party by the Servicer.
Section 15.04 Servicer Compliance Statement.
On or before March 1 of each calendar year, commencing in 2007,
the Servicer shall deliver to the Purchaser and any Depositor a statement of
compliance addressed to the Purchaser and such Depositor and signed by an
authorized officer of the Servicer, to the effect that (i) a review of the
Servicer's activities during the immediately preceding calendar year (or
applicable portion thereof) and of its performance under this Agreement and
any applicable Reconstitution Agreement during such period has been made under
such officer's supervision, and (ii) to the best of such officers' knowledge,
based on such review, the Servicer has fulfilled all of its obligations under
this Agreement and any applicable Reconstitution Agreement in all material
respects throughout such calendar year (or applicable portion thereof) or, if
there has been a failure to fulfill any such obligation in any material
respect, specifically identifying each such failure known to such officer and
the nature and the status thereof.
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Section 15.05 Report on Assessment of Compliance and Attestation.
(a) On or before March 1 of each calendar year, commencing in 2007, the
Servicer shall:
(i) deliver to the Purchaser and any Depositor a report (in form
and substance reasonably satisfactory to the Purchaser and such
Depositor) regarding the Servicer's assessment of compliance with the
Servicing Criteria during the immediately preceding calendar year, as
required under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122
of Regulation AB. Such report shall be addressed to the Purchaser and
such Depositor and signed by an authorized officer of the Servicer, and
shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit 18 hereto delivered
to the Purchaser concurrently with the execution of this Agreement;
(ii) deliver to the Purchaser and any Depositor a report of a
registered public accounting firm reasonably acceptable to the Purchaser
and such Depositor that attests to, and reports on, the assessment of
compliance made by the Servicer and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules 1-02(a)(3)
and 2-02(g) of Regulation S-X under the Securities Act and the Exchange
Act;
(iii) cause each Subservicer, and each Subcontractor determined by
the Company pursuant to Section 15.06(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, to
deliver to the Purchaser and any Depositor an assessment of compliance
and accountants' attestation as and when provided in paragraphs (a) and
(b) of this Section; and
(iv) if requested by the Purchaser or any Depositor not later than
February 1 of the calendar year in which such certification is to be
delivered, deliver to the Purchaser, any Depositor and any other Person
that will be responsible for signing the certification (a "Sarbanes
Certification") required by Rules 13a-14(d) and 15d-14(d) under the
Exchange Act (pursuant to Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002)
on behalf of an asset-backed issuer with respect to a Securitization
Transaction a certification in the form attached hereto as Exhibit 17.
The Servicer acknowledges that the parties identified in clause
(a)(iv) above may rely on the certification provided by the Servicer pursuant
to such clause in signing a Sarbanes Certification and filing such with the
Commission. Neither the Purchaser nor any Depositor will request delivery of a
certification under clause (a)(iv) above, unless a Depositor is required under
the Exchange Act to file an annual report on Form 10-K with respect to an
issuing entity whose asset pool includes Mortgage Loans.
(b) Each assessment of compliance provided by a Subservicer pursuant to
Section 15.05(a)(i) shall address each of the Servicing Criteria specified on
a certification substantially in the form of Exhibit 18 hereto delivered to
the Purchaser concurrently with the execution of this Agreement or, in the
case of a Subservicer subsequently appointed as such, on or prior to the date
of such appointment. An assessment of compliance provided by a Subcontractor
pursuant
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to Section 15.05(a)(iii) need not address any elements of the Servicing
Criteria other than those specified by the Servicer pursuant to Section 15.06.
Section 15.06 Use of Subservicers and Subcontractors.
The Servicer shall not hire or otherwise utilize the services of
any Subservicer to fulfill any of the obligations of the Servicer as servicer
under this Agreement or any Reconstitution Agreement unless the Servicer
complies with the provisions of paragraph (a) of this Section. The Servicer
shall not hire or otherwise utilize the services of any Subcontractor, and
shall not permit any Subservicer to hire or otherwise utilize the services of
any Subcontractor, to fulfill any of the obligations of the Servicer as
servicer under this Agreement or any Reconstitution Agreement unless the
Servicer complies with the provisions of paragraph (b) of this Section.
(a) It shall not be necessary for the Servicer to seek the consent of
the Purchaser or any Depositor to the utilization of any Subservicer. The
Servicer shall cause any Subservicer used by the Servicer (or by any
Subservicer) for the benefit of the Purchaser and any Depositor to comply with
the provisions of this Section and with Sections 15.02, 15.03(c) and (e),
15.04, 15.05 and 15.07 of this Agreement to the same extent as if such
Subservicer were the Servicer, and to provide the information required with
respect to such Subservicer under Section 15.03(d) of this Agreement. The
Servicer shall be responsible for obtaining from each Subservicer and
delivering to the Purchaser and any Depositor any servicer compliance
statement required to be delivered by such Subservicer under Section 15.04,
any assessment of compliance and attestation required to be delivered by such
Subservicer under Section 15.05 and any certification required to be delivered
to the Person that will be responsible for signing the Sarbanes Certification
under Section 15.05 as and when required to be delivered.
(b) It shall not be necessary for the Servicer to seek the consent of
the Purchaser or any Depositor to the utilization of any Subcontractor. The
Servicer shall promptly upon request provide to the Purchaser and any
Depositor (or any designee of the Depositor, such as a master servicer or
administrator) a written description (in form and substance satisfactory to
the Purchaser and such Depositor) of the role and function of each
Subcontractor utilized by the Servicer or any Subservicer, specifying (i) the
identity of each such Subcontractor, (ii) which (if any) of such
Subcontractors are "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB, and (iii) which elements of the
Servicing Criteria will be addressed in assessments of compliance provided by
each Subcontractor identified pursuant to clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor determined
to be "participating in the servicing function" within the meaning of Item
1122 of Regulation AB, the Servicer shall cause any such Subcontractor used by
the Servicer (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 15.05 and 15.07 of this
Agreement to the same extent as if such Subcontractor were the Servicer. The
Servicer shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and any Depositor any assessment of compliance and
attestation required to be delivered by such Subcontractor under Section
15.05, in each case as and when required to be delivered.
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Section 15.07 Indemnification; Remedies.
(a) The Servicer shall indemnify the Purchaser, each affiliate of the
Purchaser, and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction; each broker
dealer acting as underwriter, placement agent or initial purchaser, each
Person who controls any of such parties or the Depositor (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act); each
Static Pool Party and the respective present and former directors, officers,
employees and agents of each of the foregoing and of the Depositor, and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain arising out of
or based upon:
(i)(A) any untrue statement of a material fact contained or
alleged to be contained in any information, report, certification,
accountants' letter or other material provided under this Article 15 by
or on behalf of the Servicer, or provided in written or electronic form
under this Article 15 by or on behalf of any Subservicer or
Subcontractor (collectively, the "Servicer Information"), or (B) the
omission or alleged omission to state in the Servicer Information a
material fact required to be stated in the Servicer Information or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, by
way of clarification, that clause (B) of this paragraph shall be
construed solely by reference to the Servicer Information and not to any
other information communicated in connection with a sale or purchase of
securities, without regard to whether the Servicer Information or any
portion thereof is presented together with or separately from such other
information;
(ii) any failure by the Servicer, any Subservicer or any
Subcontractor to deliver any information, report, certification,
accountants' letter or other material when and as required under this
Article 15, including any failure by the Servicer to identify pursuant
to Section 15.06(b) any Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB; or
(iii) any breach by the Servicer of a representation or warranty
set forth in Section 15.02(a) or in a writing furnished pursuant to
Section 15.02(b) and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is
not cured by such closing date, or any breach by the Servicer of a
representation or warranty in a writing furnished pursuant to Section
15.02(b) to the extent made as of a date subsequent to such closing
date.
In the case of any failure of performance described in clause
(a)(ii) of this Section, the Servicer shall promptly reimburse the Purchaser,
any Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with respect to such Securitization Transaction, or for execution of a
-62-
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Securitization Transaction, for all costs reasonably
incurred by each such party in order to obtain the information, report,
certification, accountants' letter or other material not delivered as required
by the Servicer, any Subservicer or any Subcontractor.
(b) (i) Any failure by the Servicer, any Subservicer or any
Subcontractor to deliver any information, report, certification, Static Pool
Party static pool information, accountants' letter or other material when and
as required under this Article 15, or any breach by the Servicer of a
representation or warranty set forth in Section 15.02(a) or in a writing
furnished pursuant to Section 15.02(g) and made as of a date prior to the
closing date of the related Securitization Transaction, to the extent that
such breach is not cured by such closing date, or any breach by the Servicer
of a representation or warranty in a writing furnished pursuant to Section
15.02(b) to the extent made as of a date subsequent to such closing date,
shall, except as provided in clause (ii) of this paragraph, immediately and
automatically, without notice or grace period, constitute an Event of Default
with respect to the Servicer under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or Depositor, as
applicable, in its sole discretion to terminate the rights and obligations of
the Servicer as servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement or any applicable Reconstitution Agreement to the contrary) of any
compensation to the Servicer; provided that to the extent that any provision
of this Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following
termination of the Servicer as servicer, such provision shall be given effect.
(ii) Any failure by the Servicer, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Section 15.04 or 15.05,
including (except as provided below) any failure by the Servicer to
identify pursuant to Section 15.06(b) any Subcontractor "participating
in the servicing function" within the meaning of Item 1122 of Regulation
AB, which continues unremedied for ten calendar days after the date on
which such information, report, certification or accountants' letter was
required to be delivered shall constitute an Event of Default with
respect to the Servicer under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or Depositor,
as applicable, in its sole discretion to terminate the rights and
obligations of the Servicer as servicer under this Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement to the contrary) of any compensation to the
Servicer; provided that to the extent that any provision of this
Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following
termination of the Servicer as servicer, such provision shall be given
effect.
Neither the Purchaser nor any Depositor shall be entitled to
terminate the rights and obligations of the Servicer pursuant to this
subparagraph (b)(ii) if a failure of the Servicer to identify a
Subcontractor "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB was attributable solely to the
role or functions of such Subcontractor with respect to mortgage loans
other than the Mortgage Loans.
-63-
(iii) The Servicer shall promptly reimburse the Purchaser (or any
designee of the Purchaser, such as a master servicer) and any Depositor,
as applicable, for all reasonable expenses incurred by the Purchaser (or
such designee) or such Depositor, as such are incurred, in connection
with the termination of the Servicer as servicer and the transfer of
servicing of the Mortgage Loans to a successor servicer. The provisions
of this paragraph shall not limit whatever rights the Purchaser or any
Depositor may have under other provisions of this Agreement and/or any
applicable Reconstitution Agreement or otherwise, whether in equity or
at law, such as an action for damages, specific performance or
injunctive relief.
[SIGNATURES APPEAR ON NEXT PAGE]
-64-
IN WITNESS WHEREOF, the parties have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE
COMPANY
(Purchaser)
By:________________________________________
Name:___________________________________
Title:__________________________________
SAXON MORTGAGE SERVICES, INC.
(Servicer)
By:________________________________________
Name:___________________________________
Title:__________________________________
-65-
Execution Version
EXHIBIT 1
TRIAL BALANCE
Exh. 1-1
Execution Version
EXHIBIT 2
CUSTODIAL ACCOUNT CERTIFICATION
_______ __, 200_
The Servicer hereby certifies that it has established the account
described below as a Custodial Account pursuant to Section 2.06 of the Flow
Servicing Rights Purchase and Servicing Agreement, dated as of December 19,
2005, Fixed and Adjustable Rate Mortgage Loans. The Custodial Account shall be
a Special Deposit Account.
Title of Account: Saxon Mortgage Services, Inc. in trust for "▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Company, Fixed and Adjustable Rate Residential
Mortgage Loans."
Account Number: _____________________
Address of office or branch
of the Servicer at
which Account is maintained: ______________________________
SAXON MORTGAGE SERVICES, INC.
Servicer
By:__________________________
Name:________________________
Title:_______________________
Date:________________________
Exh. 2-1
Execution Version
EXHIBIT 3
CUSTODIAL ACCOUNT LETTER AGREEMENT
_______ __, 200_
To: ___________________________
___________________________
___________________________
(the "Depository")
As Servicer under the Flow Servicing Rights Purchase and Servicing
Agreement, dated as of December 19, 2005, Fixed and Adjustable Rate Mortgage
Loans (the "Agreement"), we hereby authorize and request you to establish an
account, as a Custodial Account pursuant to Section 2.06 of the Agreement, to
be designated "Saxon Mortgage Services, Inc., as servicer, in trust for
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company" All deposits in the account shall be subject
to withdrawal therefrom by order signed by the Servicer. You may refuse any
deposit which would result in violation of the requirement that the account be
fully insured as described below. This letter is submitted to you in
duplicate. Please execute and return one original to us.
SAXON MORTGAGE SERVICES, INC.
Servicer
By:__________________________
Name:________________________
Title:_______________________
Date:________________________
Exh. 3-1
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number __________, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above. The Custodial Account shall be a Special
Deposit Account. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation.
_____________________________________
Depository
By:__________________________________
Name:________________________________
Title:_______________________________
Date:________________________________
Exh. 3-2
Execution Version
EXHIBIT 4
ESCROW ACCOUNT CERTIFICATION
_________ ___, 200_
________________________ hereby certifies that it has established
the account described below as an Escrow Account pursuant to Section 2.08 of
the Flow Servicing Rights Purchase and Servicing Agreement, dated as of
December 19, 2005, Fixed and Adjustable Rate Residential Mortgage Loans. The
Escrow Account shall be a Special Deposit Account.
Title of Account: "Saxon Mortgage Services, Inc., in trust for Purchasers of
Residential Fixed and Adjustable Rate Mortgage Loans, and
various Mortgagors."
Account Number: ___________________
Address of office or branch
of the Servicer at
which Account is maintained: _________________________
_________________________
_________________________
_________________________
SAXON MORTGAGE SERVICES, INC.
Servicer
By:__________________________
Name:________________________
Title:_______________________
Exh. 4-1
Execution Version
EXHIBIT 5
ESCROW ACCOUNT LETTER AGREEMENT
_______ ___, 200_
To: _____________________________
_____________________________
_____________________________
(the "Depository")
As Servicer under the Flow Servicing Rights Purchase and Servicing
Agreement, dated as of December 19, 2005, Fixed and Adjustable Rate
Residential Mortgage Loans (the "Agreement"), we hereby authorize and request
you to establish an account, as an Escrow Account pursuant to Section 2.08 of
the Agreement, to be designated as "Saxon Mortgage Services, Inc., in trust
for the Purchasers of Residential Fixed and Adjustable Rate Mortgage Loans,
and various Mortgagors." All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. You may refuse any
deposit which would result in violation of the requirement that the account be
fully insured as described below. This letter is submitted to you in
duplicate. Please execute and return one original to us.
SAXON MORTGAGE SERVICES, INC.
Servicer
By:__________________________
Name:________________________
Title:_______________________
Date:________________________
Exh. 5-1
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number ______, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above. The Escrow Account shall be a Special Deposit
Account. The full amount deposited at any time in the account will be insured
by the Federal Deposit Insurance Corporation.
_____________________________
Depository
By:__________________________
Name:________________________
Title:_______________________
Date:________________________
Exh. 5-2
Execution Version
EXHIBIT 6
FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated
______________("Agreement"), among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company
("Assignor"), GS Mortgage Securities Corp. ("Assignee") and Saxon Mortgage
Services, Inc. (the "Company").
For and in consideration of the sum of TEN DOLLARS ($10.00) and
other valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
Assignment, Assumption and Conveyance
The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title and interest (other than those rights
specifically retained by the Assignor pursuant to this Agreement) of the
Assignor, as purchaser, in, to and under (a) those certain Mortgage Loans
listed on the schedule (the "Mortgage Loan Schedule") attached hereto as
Exhibit A (the "Mortgage Loans"), (b) solely insofar as it relates to the
Mortgage Loans, that certain Mortgage Loan Purchase and Warranties Agreement,
dated as of ___________ (the "Purchase Agreement"), between the Assignor, as
purchaser (in such capacity, the "Purchaser"), and the Company, as seller, and
(c) solely insofar as it relates to the Mortgage Loans, that certain Interim
Servicing Agreement, dated as of _______________ (the "Servicing Agreement"),
by and between the Assignor and the Company. The Assignor hereby agrees that
it will (i) deliver possession of notes evidencing the Mortgage Loans to, or
at the direction of, the Assignee or its designee and (ii) take in a timely
manner all necessary steps under all applicable laws to convey and to perfect
the conveyance of the Mortgage Loans as required under the Pooling Agreement
(as defined below).
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Purchase Agreement or the Servicing Agreement that are not the Mortgage
Loans set forth on the Mortgage Loan Schedule and are not the subject of this
Agreement or (ii) the rights of the Purchaser under Section 13 and Section
14.01 of the Purchase Agreement.
The Assignee hereby assumes all of the Assignor's obligations
under the Mortgage Loans, the Purchase Agreement and the Servicing Agreement
solely insofar as such obligations relate to the Mortgage Loans.
Recognition of the Company
From and after the date hereof (the "Securitization Closing
Date"), the Company shall and does hereby recognize that the Assignee will
transfer the Mortgage Loans and assign its rights under the Purchase Agreement
and the Servicing Agreement (in each case, solely to the extent set forth
herein) and this Agreement to _____________________, as trustee (including its
successors in interest and any successor trustees under the Pooling Agreement,
the "Trustee"), of
the __________________ (the "Trust") created pursuant to a Pooling and
Servicing Agreement, dated as of _________________ (the "Pooling Agreement"),
among the Assignee, the Trustee and ____________________, as servicer
(including its successors in interest and any successor servicer under the
Pooling Agreement, the "Servicer"). The Company hereby acknowledges and agrees
that from and after the date hereof (i) the Trust will be the owner of the
Mortgage Loans and the Servicer will be the servicer of the Mortgage Loans on
or after the applicable Transfer Date pursuant to the terms set forth in the
Pooling Agreement, (ii) the Company shall look solely to the Trust (including
the Trustee and the Servicer acting on the Trust's behalf) for performance of
any obligations of the Assignor under the Mortgage Loans and the Purchase
Agreement and the Servicing Agreement (solely insofar as they relate to the
Mortgage Loans), (iii) the Trust (including the Trustee and the Servicer
acting on the Trust's behalf) shall have all the rights and remedies available
to the Assignor, insofar as they relate to the Mortgage Loans, under the
Purchase Agreement and the Servicing Agreement, including, without limitation,
the enforcement of the document delivery requirements set forth in Section
6.03 of the Purchase Agreement, and shall be entitled to enforce all of the
obligations of the Company thereunder insofar as they relate to the Mortgage
Loans, including without limitation, the remedies for breaches of
representations and warranties set forth in Section 9.03 of the Purchase
Agreement, (iv) all references to the Purchaser or the Custodian under the
Purchase Agreement and the Servicing Agreement insofar as they relate to the
Mortgage Loans shall be deemed to refer to the Trust (including the Trustee
and the Servicer acting on the Trust's behalf) and (v) the Mortgage Loans will
be part of a REMIC, and the Company shall service the Mortgage Loans and any
real property acquired upon default thereof (including, without limitation,
making or permitting any modification, waiver or amendment of any term of any
Mortgage Loan) prior to the applicable Transfer Date in accordance with the
Servicing Agreement but in no event in a manner that would (A) cause the REMIC
to fail to qualify as a REMIC or (B) result in the imposition of a tax upon
the REMIC (including but not limited to the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code, the tax on contributions to a REMIC
set forth in Section 860G(d) of the Code, and the tax on "net income from
foreclosure property" as set forth in Section 860G(c) of the Code). Neither
the Company nor the Assignor shall amend or agree to amend, modify, waiver, or
otherwise alter any of the terms or provisions of the Purchase Agreement or
the Servicing Agreement which amendment, modification, waiver or other
alteration would in any way affect the Mortgage Loans or the Company's
performance under the Purchase Agreement or the Servicing Agreement with
respect to the Mortgage Loans without the prior written consent of the
Trustee.
Representations and Warranties of the Company
The Company warrants and represents to and covenants with, the
Assignor, the Assignee and the Trust as of the date hereof that:
The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
The Company has full power and authority to execute, deliver and
perform its obligations under this Agreement and has full power and
authority to perform its obligations under this Agreement, the Purchase
Agreement and the Servicing Agreement. The execution by the Company of this
Agreement is in the ordinary course of the Company's business and
-2-
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of the Company's charter or bylaws or any legal
restriction, or any material agreement or instrument to which the Company
is now a party or by which it is bound, or result in the violation of any
law, rule, regulation, order, judgment or decree to which the Company or
its property is subject. The execution, delivery and performance by the
Company of this Agreement have been duly authorized by all necessary
corporate action on part of the Company. This Agreement has been duly
executed and delivered by the Company, and, upon the due authorization,
execution and delivery by the Assignor and the Assignee, will constitute
the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability
may be limited by bankruptcy, reorganization, insolvency, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, and by general principles of equity regardless of whether
enforceability is considered in a proceeding in equity or at law;
No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be
obtained or made by the Company in connection with the execution, delivery
or performance by the Company of this Agreement or the consummation by it
of the transaction contemplated hereby;
The Company shall establish a Custodial Account and an Escrow
Account under the Servicing Agreement in favor of the Trust with respect to
the Mortgage Loans separate from the Custodial Account and Escrow Account
previously established under the Servicing Agreement in favor of the
Assignor; and
There is no action, suit, proceeding or investigation pending or
threatened against the Company, before any court, administrative agency or
other tribunal, which would draw into question the validity of this
Agreement, the Purchase Agreement or the Servicing Agreement, or which,
either in any one instance or in the aggregate, is likely to result in any
material adverse change in the ability of the Company to perform its
obligations under this Agreement or the Purchase Agreement or the Servicing
Agreement, and the Company is solvent.
Pursuant to Section 13 of the Purchase Agreement, the Company
hereby represents and warrants, for the benefit of the Assignor, the Assignee
and the Trust, that the representations and warranties set forth in Section
9.01 and 9.02 of the Purchase Agreement are true and correct as of the date
hereof as if such representations and warranties were made on the date hereof;
provided, however, that the representation and warranty set forth in Section
9.02(tt) of the Purchase Agreement shall have an exception for those Mortgage
Loans identified on the Mortgage Loan Schedule as having a prepayment penalty
term not in excess of five years.
Remedies for Breach of Representations and Warranties of the Company
The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the Trustee
and the Servicer acting on the Trust's behalf) in connection with any breach
of the representations and warranties made by the
-3-
Company set forth in Sections 3 and 4 hereof shall be as set forth in Section
9.03 of the Purchase Agreement as if they were set forth herein (including
without limitation the repurchase and indemnity obligations set forth
therein); provided, however, that the Company agrees (i) that, within 60 days
of the earlier of either discovery by, or notice to, the Company of any breach
of the representation and warranty set forth in Section 9.02(ccc) of the
Purchase Agreement, the Company shall repurchase such Mortgage Loan at the
Repurchase Price (as defined in the Purchase Agreement), together with all
expenses incurred by the Assignor, the Assignee and the Trust as a result of
such repurchase and (ii) notwithstanding Section 9.03 of the Purchase
Agreement, the Company shall have the right to substitute a Qualified Mortgage
Loan for a Mortgage Loan as to which a breach of a representation and warranty
under Section 9.02 of the Purchase Agreement shall have occurred so long as
such substitution is effected by the second anniversary of the date of this
Agreement. The Assignor and Assignee hereby acknowledge and agree to use their
best efforts in enforcing the representation and warranty obligations of the
Company.
Periodic Filings
Pursuant to Section 13 of the Purchase Agreement, the Company
agrees to deliver a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ certification in the form attached hereto
as Exhibit B for the benefit of the Assignee, the Servicer and the Trustee and
their respective officers, directors and affiliates. Such certification shall
be delivered by March 15, 2005 to the Assignee, the Servicer and the Trustee.
The Company shall indemnify and hold harmless the Assignee, the Servicer and
the Trustee and their respective officers, directors and affiliates from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of the Company's obligations under this
Section 6, or the Company's negligence, bad faith, willful misconduct or
material misstatements or omissions in connection therewith. If the
indemnification provided for herein is unavailable of insufficient to hold
harmless the indemnified party, then the Company agrees that it shall
contribute to the amount paid or payable by the Assignee, the Servicer and/or
the Trustee (and their respective officers, directors and affiliates) as a
result of the losses, claims, damage or liabilities of the Assignee, the
Servicer and/or the Trustee in such proportion as is appropriate to reflect
the relative fault of the Assignee, the Servicer or the Trustee, as the case
may be, on the one hand, and the Company on the other in connection with a
breach of the Company's obligation under this Section 6 or the Company's
negligence, bad faith, willful misconduct or material misstatements or
omissions in connection therewith.
Representations and Warranties of the Assignor
The Assignor warrants and represents to the Assignee and the Trust
as of date hereof that:
The Assignor is the sole owner of record and holder of the
Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The
Mortgage Loan is not assigned or pledged, and the Assignor has good,
indefeasible and marketable title thereto, and has full right to transfer
and sell the Mortgage Loan to the Assignee free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest,
-4-
and has full right and authority subject to no interest or participation
of, or agreement with, any other party, to sell and assign each Mortgage
Loan pursuant to this Agreement and following the sale of each Mortgage
Loan, the Assignee will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest. The Assignor intends to relinquish all rights to
possess, control and monitor the Mortgage Loan;
The Assignor has not waived the performance by the Mortgagor of
any action, if the Mortgagor's failure to perform such action would cause
the Mortgage Loan to be in default, nor has the Company waived any default
resulting from any action or inaction by the Mortgagor;
With respect to the Mortgage Loans, any and all requirements of
any federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity and disclosure laws, all applicable
predatory and abusive lending laws or unfair and deceptive practices laws
applicable to the Mortgage Loan, including, without limitation, any
provisions related to Prepayment Premiums, have been complied with, the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations; and
With respect to the Mortgage Loans, none of the Mortgage Loans are
classified as (a) "high cost" loans under the Home Ownership and Equity
Protection Act of 1994 or (b) "high cost," "threshold," "covered" or
"predatory" loans under any other applicable federal, state or local law
(or a similarly classified loan using different terminology under a law
imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees).
Remedies for Breach of Representations and Warranties of the Assignor
The Assignor hereby acknowledges and agrees that in the event of
any breach of the representations and warranties made by the Assignor set
forth in Section 7 hereof that materially and adversely affects the value of
the Mortgage Loans or the interest of the Assignee or the Trust therein,
within 60 days of the earlier of either discovery by or notice to the Assignor
of such breach of a representation or warranty, it shall cure, purchase, cause
the purchase of, or substitute for the applicable Mortgage Loan in the same
manner and subject to the conditions set forth in Section 2.07 of the Pooling
Agreement with respect to the Assignee's obligations to provide certain
representations and warranties for the Mortgage Loans.
Miscellaneous
This Agreement shall be construed in accordance with the laws of
the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined
in accordance with such laws.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party
against whom such waiver or modification is sought to be enforced, with the
prior written consent of the Trustee.
-5-
This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the Trustee
and the Servicer acting on the Trust's behalf). Any entity into which the
Assignor, Assignee or Company may be merged or consolidated shall, without the
requirement for any further writing, be deemed Assignor, Assignee or Company,
respectively, hereunder.
Each of this Agreement, the Purchase Agreement and the Servicing
Agreement shall survive the conveyance of the Mortgage Loans and the
assignment of the Purchase Agreement and the Servicing Agreement (to the
extent assigned hereunder) by the Assignor to the Assignee and by Assignee to
the Trust and nothing contained herein shall supersede or amend the terms of
the Purchase Agreement and the Servicing Agreement.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
In the event that any provision of this Agreement conflicts with
any provision of the Purchase Agreement or the Servicing Agreement with
respect to the Mortgage Loans, the terms of this Agreement shall control.
Capitalized terms used in this Agreement (including the exhibits
hereto) but not defined in this Agreement shall have the meanings given to
such terms in the Purchase Agreement or the Servicing Agreement, as
applicable.
[SIGNATURE PAGE FOLLOWS]
------------------------
-6-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By: ___________________________________
Name: _________________________________
Title: ________________________________
▇▇▇▇▇▇▇ SACHS MORTGAGE COMPANY,
a New York limited partnership
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ REAL ESTATE FUNDING
CORP., a New York corporation, as
General Partner
By: ___________________________________
Name: _________________________________
Title: ________________________________
SAXON MORTGAGE SERVICES, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
-------------------------------------------------
Mortgage Loan Schedule
A-1
EXHIBIT B
FORM OF COMPANY CERTIFICATION TO BE PROVIDED TO ASSIGNEE, SERVICER AND TRUSTEE
I, [identify the certifying individual], certify to GS Mortgage Securities
Corp. (the "Assignee"), _____________________ (the "Servicer") and
_______________________________________ (the "Trustee"), and their respective
officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification, that:
1. The servicing information required to be provided to the Servicer or the
Trustee by [___________] (the "Company") under the Flow Servicing Rights
Purchase and Servicing Agreement, dated as of December 19, 2005 (the
"Servicing Agreement"), by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company
(the "Assignor") and the Company, for the period from January 1, 200__
to the applicable Transfer Dates (as defined in the Servicing Agreement)
has been so provided;
2. I am responsible for reviewing the activities performed by the Company
under the Servicing Agreement and based upon my knowledge and the
annual compliance review required under the Servicing Agreement, and
except as disclosed in the annual compliance statement required to be
delivered to the Assignee, Servicer and Trustee in accordance with the
terms of the Servicing Agreement (which has been so delivered to the
Servicer or the Trustee), the Company has fulfilled its obligations
under the Servicing Agreement; and
3. All significant deficiencies relating to the Company's compliance with
the minimum servicing standards for purposes of the report provided by
an independent public accountant, after conducting a review in
compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar procedure, as set forth in the Servicing Agreement,
have been disclosed to such accountant and are included in such report.
COMPANY
Date: _________________________
_______________________________
[Signature]
[Title]
Exh. 7-1
EXHIBIT 7
FORM OF OFFICER'S CERTIFICATE
I, ____________________, hereby certify that I am the duly elected
[Vice] President of Saxon Mortgage Services, Inc., a corporation organized
under the laws of Texas (the "Servicer") and further as follows:
1. Attached hereto as Exhibit 1 is a true, correct and complete
copy of the charter of the Servicer which is in full force and effect on
the date hereof and which has been in effect without amendment, waiver,
rescission or modification.
2. Attached hereto as Exhibit 2 is a true, correct and complete
copy of the bylaws of the Servicer which are in effect on the date
hereof and which have been in effect without amendment, waiver,
rescission or modification.
3. Attached hereto as Exhibit 3 is an original certificate of good
standing of the Servicer issued within ten days of the date hereof, and
no event has occurred since the date thereof which would impair such
standing.
4. Attached hereto as Exhibit 4 is a true, correct and complete
copy of the corporate resolutions of the Board of Directors of the
Servicer authorizing the Servicer to execute and deliver the Flow
Servicing Rights Purchase and Servicing Agreement, dated as of December
19, 2005, among the Servicer, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company (the
"Purchaser"), (the "Flow Servicing Rights Purchase and Servicing
Agreement") and such resolutions are in effect on the date hereof.
5. Each person listed on Exhibit 5 attached hereto who, as an
officer or representative of the Servicer, signed (a) the Flow Servicing
Rights Purchase and Servicing Agreement, and (b) any other document
delivered or on the date hereof in connection with any purchase
described in the agreements set forth above was, at the respective times
of such signing and delivery, and is now, a duly elected or appointed,
qualified and acting officer or representative of the Servicer, who
holds the office set forth opposite his or her name on Exhibit 5, and
the signatures of such persons appearing on such documents are their
genuine signatures.
Exh. 7-2
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Company.
Dated:____________________________ By:_________________________________
Name:_______________________________
[Seal] Title: [Vice] President
I, ________________________, an [Assistant] Secretary of Servicer,
hereby certify that ____________ is the duly elected, qualified and acting
[Vice] President of the Company and that the signature appearing above is
[her] [his] genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:____________________________ By:_________________________________
Name:_______________________________
[Seal] Title: [Assistant] Secretary
Exh. 7-3
EXHIBIT 5 to
Company's Officer's Certificate
NAME TITLE SIGNATURE
---- ----- ---------
------------------------ ----------------------- ------------------------
------------------------ ----------------------- ------------------------
------------------------ ----------------------- ------------------------
------------------------ ----------------------- ------------------------
------------------------ ----------------------- ------------------------
------------------------ ----------------------- ------------------------
Exh. 7-4
EXHIBIT 8
MORTGAGE LOAN DOCUMENTS
The following documents shall constitute the Mortgage Loan
Documents with respect to each Mortgage Loan:
(a) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of _________, without recourse"
and signed in the name of the last endorsee (the "Last Endorsee") by an
authorized officer. To the extent that there is no room on the face of
the Mortgage Notes for endorsements, the endorsement may be contained on
an allonge, if state law so allows and the Custodian is so advised by
the Purchaser that state law so allows. If the Mortgage Loan was
acquired by the Seller in a merger, the endorsement must be by "[Last
Endorsee], successor by merger to [name of predecessor]". If the
Mortgage Loan was acquired or originated by the Last Endorsee while
doing business under another name, the endorsement must be by "[Last
Endorsee], formerly known as [previous name]";
(b) the original of any guarantee executed in connection with the
Mortgage Note;
(c) the original Mortgage with evidence of recording thereon. If
in connection with any Mortgage Loan, the Purchaser cannot deliver or
cause to be delivered the original Mortgage with evidence of recording
thereon on or prior to the related Transfer Date because of a delay
caused by the public recording office where such Mortgage has been
delivered for recordation or because such Mortgage has been lost or
because such public recording office retains the original recorded
Mortgage, the Seller shall deliver or cause to be delivered to the
Custodian, a photocopy of such Mortgage, together with (i) in the case
of a delay caused by the public recording office, an Officer's
Certificate of the Purchaser (or certified by the title company, escrow
agent, or closing attorney) stating that such Mortgage has been
dispatched to the appropriate public recording office for recordation
and that the original recorded Mortgage or a copy of such Mortgage
certified by such public recording office to be a true and complete copy
of the original recorded Mortgage will be promptly delivered to the
Custodian upon receipt thereof by the Purchaser; or (ii) in the case of
a Mortgage where a public recording office retains the original recorded
Mortgage or in the case where a Mortgage is lost after recordation in a
public recording office, a copy of such Mortgage certified by such
public recording office to be a true and complete copy of the original
recorded Mortgage;
(d) the originals of all assumption, modification, consolidation
or extension agreements, if any, with evidence of recording thereon;
(e) the original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording. The Assignment of Mortgage
must be duly recorded only if recordation is either necessary under
applicable law or commonly required by private institutional mortgage
investors in the area where the Mortgaged Property is located or on
direction of the Purchaser as provided in this Agreement. If the
Assignment
Exh. 8-1
of Mortgage is to be recorded, the Mortgage shall be assigned to the
Purchaser or as directed by the Purchaser. If the Assignment of Mortgage
is not to be recorded, the Assignment of Mortgage shall be delivered in
blank. If the Mortgage Loan was acquired by the Seller in a merger, the
Assignment of Mortgage must be made by "[Seller], successor by merger to
[name of predecessor]". If the Mortgage Loan was acquired or originated
by the Purchaser while doing business under another name, the Assignment
of Mortgage must be by "[Seller], formerly known as [previous name]";
(f) the originals of all intervening assignments of mortgage (if
any) evidencing a complete chain of assignment from the Originator to
the Last Endorsee with evidence of recording thereon, or if any such
intervening assignment has not been returned from the applicable
recording office or has been lost or if such public recording office
retains the original recorded assignments of mortgage, the Seller shall
deliver or cause to be delivered to the Custodian, a photocopy of such
intervening assignment, together with (i) in the case of a delay caused
by the public recording office, an Officers Certificate of the Purchaser
(or certified by the title company, escrow agent, or closing attorney)
stating that such intervening assignment of mortgage has been dispatched
to the appropriate public recording office for recordation and that such
original recorded intervening assignment of mortgage or a copy of such
intervening assignment of mortgage certified by the appropriate public
recording office to be a true and complete copy of the original recorded
intervening assignment of mortgage will be promptly delivered to the
Custodian upon receipt thereof by the Seller; or (ii) in the case of an
intervening assignment where a public recording office retains the
original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by such public
recording office to be a true and complete copy of the original recorded
intervening assignment;
(g) The original mortgagee policy of title insurance or, in the
event such original title policy is unavailable, a certified true copy
of the related policy binder or commitment for title certified to be
true and complete by the title insurance company (provided, that the
original mortgagee policy of title insurance shall be added when
available);
(h) original powers of attorney, if applicable, or, if in
connection with any Mortgage Loan, the Seller cannot deliver or cause to
be delivered the original power of attorney with evidence of recording
thereon, if applicable, on or prior to the related Transfer Date because
of a delay caused by the public recording office, the Seller shall
deliver or cause to be delivered to the Custodian, a photocopy of such
power of attorney, together with an Officer's Certificate of the Seller
(or certified by the title company, escrow agent, or closing attorney)
stating that such power of attorney has been dispatched to the
appropriate public recording office for recordation and that the
original recorded power of attorney or a copy of such power of attorney
certified by such public recording office to be a true and complete copy
of the original recorded power of attorney will be promptly delivered to
the Custodian upon receipt thereof by the Seller; and
Exh. 8-2
(i) security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage.
The following documents, together with the Mortgage Loan
Documents, shall constitute the Mortgage File with respect to each Mortgage
Loan:
(a) The original hazard insurance policy and, if required by law,
flood insurance policy.
(b) Residential loan application.
(c) Mortgage Loan closing statement.
(d) Verification of employment and income except for Mortgage
Loans originated under a Limited Documentation Program.
(e) Verification of acceptable evidence of source and amount of
downpayment.
(f) Credit report on the Mortgagor.
(g) Residential appraisal report, if available.
(h) Photograph of the Mortgaged Property.
(i) Survey of the Mortgaged Property, if any.
(j) Copy of each instrument necessary to complete identification
of any exception set forth in the exception schedule in the title
policy, i.e., map or plat, restrictions, easements, sewer agreements,
home association declarations, etc.
(k) All required disclosure statements.
(l) If available, termite report, structural engineer's report,
water potability and septic certification.
(m) Sales contract, if applicable.
(n) Tax receipts, insurance premium receipts, ledger sheets,
payment history from date of origination, insurance claim files,
correspondence, current and historical computerized data files, and all
other processing, underwriting and closing papers and records which are
customarily contained in a mortgage loan file and which are required to
document the Mortgage Loan or to service the Mortgage Loan.
(o) Amortization schedule, if applicable.
Exh. 8-3
EXHIBIT 9
FORM OF ACKNOWLEDGMENT AGREEMENT
THIS ACKNOWLEDGMENT AGREEMENT ("Acknowledgement Agreement") entered into
as of the Transfer Date set forth below by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE
COMPANY, a New York limited partnership (the "Purchaser"), SAXON MORTGAGE
SERVICES, INC. a [TYPE OF ENTITY] (the "Servicer"), provides as follows:
A. Purchase Agreement. Reference is made to the Flow Servicing Rights
Purchase and Servicing Agreement dated as of December 19, 2005 (the "Servicing
Rights Purchase Agreement"), which terms are expressly incorporated herein.
All terms and conditions of this transaction shall be governed by the
Servicing Rights Purchase Agreement and this Acknowledgment Agreement;
provided, however, that in the event the terms of the Servicing Rights
Purchase Agreement are inconsistent with the terms of this Acknowledgment
Agreement, this Acknowledgment Agreement shall control.
B. Defined Terms. The following terms as used in the Servicing Rights
Purchase Agreement and this Acknowledgment Agreement shall have the meanings
set forth below:
1. Transfer Date: [Date]
2. Custodian: [Custodian]
3. Custodial Agreement: Custodial Agreement, dated as of
[____________], by and between the Seller and the Custodian.
4. Mortgage Loans: The residential mortgage loans identified on the
Mortgage Loan Schedule attached as Schedule I to this
Acknowledgment Agreement.
5. Purchase Price: The "Purchase Price" for the Servicing Rights
related to the Mortgage Loans shall equal to the product of (i)
[________]% and (ii) the unpaid principal balance of the Mortgage
Loans as of the Transfer Date.
6. Servicing Transfer Date: [___________]
7. Remittance Date: [_______] of each month
C. Agreement to Sell the Servicing Rights. Subject to the terms and
provisions of the Servicing Rights Purchase Agreement and this Acknowledgment
Agreement, the Purchaser hereby sells, assigns, conveys and sets over to the
Servicer as of the Transfer Date, without recourse, the Servicing Rights with
respect to the Mortgage Loans. The Servicer hereby accepts the Servicing
Rights and agrees to pay the Purchase Price for the Servicing Rights to the
Purchaser.
D. Acceptance of Servicing Responsibilities. The Servicer hereby
designates the Servicer as the entity to perform all servicing
responsibilities with respect to the Mortgage
Exh. 9-1
Loans. The Servicer accepts such servicing responsibilities and agrees to
service the Mortgage Loans in accordance with the Agreement.
E. Payment Instructions. The Servicer will pay the Purchase Price to
the Purchaser pursuant to the following wiring instructions:
Beneficiary Bank:
ABA Routing Number:
Beneficiary Account Name:
Account Number:
F. Limited Effect. Provisions of the Servicing Rights Purchase
Agreement not expressly amended hereby shall remain in full force and effect
without change or modification. Nothing contained herein shall be deemed to
waive any rights, remedies or privileges of the Servicer including, without
limitation, the remedies accorded the Purchaser under Sections 8.01, 9.08,
9.09, and 13.13 of the Agreement
G. Applicable Law. THIS ACKNOWLEDGMENT AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS,
RIGHTS AND REMEDIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES), EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW.
H. Counterparts. This Acknowledgment Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
an original, and all such counterparts shall constitute one and the same
instrument.
Remainder of Page Intentionally Left Blank
Exh. 8-2
IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the
Transfer Date.
PURCHASER:
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY
By:___________________________
Name:_________________________
Title:________________________
SERVICER
SAXON MORTGAGE SERVICES, INC.
By:___________________________
Name:_________________________
Title:________________________
Exh. 11-1
EXHIBIT 10
REPORTING REQUIREMENTS
GS Data Dictionary
____________________________________________________________________________________________________________________________________
Information
Type Field Name Description Example
------------------------------------------------------------------------------------------------------------------------------------
Static
Information
------------------------------------------------------------------------------------------------------------------------------------
Loan Number Loan Number currently being used to service this loan. 123456789
------------------------------------------------------------------------------------------------------------------------------------
Prior Loan Number (if any). If servicing has
transferred this should contain the Loan Number used
Prior Loan Number by the previous servicer. 987654321
------------------------------------------------------------------------------------------------------------------------------------
Custodian ID used to file documents. This can be the
custodian's only id or a category used to arrange
Custodian File Number documents into proper pools. 1de457
------------------------------------------------------------------------------------------------------------------------------------
Custodian secondary ID used to file documents. Often
this is used in conjunction with Custodian File
Custodian Loan Number Number to uniquely identify loans. 365wer5
------------------------------------------------------------------------------------------------------------------------------------
Min Mers # Mers Certificate Number Y
------------------------------------------------------------------------------------------------------------------------------------
GS Loan Number The Loan number that ▇▇▇▇▇▇▇ ▇▇▇▇▇ assigns to the loan Leave Blank
------------------------------------------------------------------------------------------------------------------------------------
Origination Date Origination Date shown on loan documents. 12/25/2004
------------------------------------------------------------------------------------------------------------------------------------
Originator The name of the company that originated the loan ▇▇▇▇▇ Fargo
------------------------------------------------------------------------------------------------------------------------------------
Origination Source Broker, etc. Broker
------------------------------------------------------------------------------------------------------------------------------------
Loan Purchase Date The date that Goldman purchased the loan 11/25/2004
------------------------------------------------------------------------------------------------------------------------------------
HOEPA Status Y\N
------------------------------------------------------------------------------------------------------------------------------------
Type of Ownership like fee simple, lease-hold Lease-Hold
------------------------------------------------------------------------------------------------------------------------------------
Documentation Type Full, Alt, No Ration, None, ▇▇▇▇,▇▇▇▇ Full
------------------------------------------------------------------------------------------------------------------------------------
Income Verification Flag Was the Borrower's income verified or stated Y
------------------------------------------------------------------------------------------------------------------------------------
Asset Verification Were the Borrower's Assets verified Y
------------------------------------------------------------------------------------------------------------------------------------
Employment Verification Was the Borrower's employment verified Y
------------------------------------------------------------------------------------------------------------------------------------
Code/literal used to identify the original purpose of
the loan. ( case-out refi, refi, purchase,
Purpose of Loan construction, etc) Purchase
------------------------------------------------------------------------------------------------------------------------------------
Cash-out Amount The Amount that the borrower removed from the loan 10000
------------------------------------------------------------------------------------------------------------------------------------
Front End Ratio at time of application. Mortgage
Front Debt To Income Ratio debt to borrower income. 56.23
------------------------------------------------------------------------------------------------------------------------------------
Back End Ratio at time of application. Total debt to
Debt To Income Ratio borrower 68.25
------------------------------------------------------------------------------------------------------------------------------------
Exh. 12-1
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income.
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Generic category code used internally to describe
------------------------------------------------------------------------------------------------------------------------------------
Product Type loan type 6MO
------------------------------------------------------------------------------------------------------------------------------------
Product Description Generic category description 6 month arm - IO
------------------------------------------------------------------------------------------------------------------------------------
Code/literal to identify the loan type. (Conventional
Loan Type [w/] PMI , Jumbo, FHA, VA, etc) Conventional - PMI
------------------------------------------------------------------------------------------------------------------------------------
Code/literal that identifies the type of property
Property Type securing the loan. ( 2 Family, PUD) PUD
------------------------------------------------------------------------------------------------------------------------------------
Occupancy status at time of application. (2nd home,
Occupancy Type owner occupied, vacant, etc) OO
------------------------------------------------------------------------------------------------------------------------------------
The basis on which interest is calculated. ( arrears,
Interest Calculation Method 360, 365, advance, etc) 30/360
------------------------------------------------------------------------------------------------------------------------------------
The term that the borrower can draw from the line of
Draw Term credit stated in months 120
------------------------------------------------------------------------------------------------------------------------------------
Indicates if the loan may violate predatory lending
Section32 Flag laws (Y/N) Y
------------------------------------------------------------------------------------------------------------------------------------
Property Address Property address, not billing address. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Property City Property city. Toronto
------------------------------------------------------------------------------------------------------------------------------------
Property State Property state. NY
------------------------------------------------------------------------------------------------------------------------------------
Property Zip Property zip. 10004
------------------------------------------------------------------------------------------------------------------------------------
Condo/PUD Project Name Name of the development. ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
The number of units for the property (1,2,3,4)
Number of Units (should correspond to the property type) 2
------------------------------------------------------------------------------------------------------------------------------------
Year-Built Date property was built 1978
------------------------------------------------------------------------------------------------------------------------------------
Number used to identify the lien position in effect
at the time of application. Example: ▇, ▇, ▇, ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇▇) 1
------------------------------------------------------------------------------------------------------------------------------------
Original amount of loan granted to borrower. In the
case of construction loans this should be the full
amount extended on which the monthly payments are
Original Balance based. 250000.00
------------------------------------------------------------------------------------------------------------------------------------
Amount of senior lien outstanding when loan was
Original Senior Lien Amount originated. 0.00
------------------------------------------------------------------------------------------------------------------------------------
Amount of junior liens outstanding when loan was
Original Junior Lien Amount originated 32000.00
------------------------------------------------------------------------------------------------------------------------------------
Original contractual interest rate for loan. (
Original Interest Rate provide all decimal places) 8.515
------------------------------------------------------------------------------------------------------------------------------------
Original Scheduled P&I Original Scheduled Principal and Interest payment 564.12
------------------------------------------------------------------------------------------------------------------------------------
Original Scheduled Principal, Interest, Tax and
Original PITI Insurance payment 725.12
------------------------------------------------------------------------------------------------------------------------------------
This is the contractual date when the first payment
First Payment Date was to be 2/1/2005
------------------------------------------------------------------------------------------------------------------------------------
Exh. 12-2
------------------------------------------------------------------------------------------------------------------------------------
made.
------------------------------------------------------------------------------------------------------------------------------------
This is the contractual date when the last payment on
the loan is scheduled to be made. For balloons it
Original Maturity Date should be the balloon date. 1/1/2020
------------------------------------------------------------------------------------------------------------------------------------
The number of months from First Payment Date to
Original Term Original Maturity Date inclusive. 180
------------------------------------------------------------------------------------------------------------------------------------
Payment Frequency Monthly, bi-weekly, etc. monthly
------------------------------------------------------------------------------------------------------------------------------------
Original Amortization Term
of the loan in number of
months. For fully
amortizing loans would be
the same as Original Term.
For balloon loans this
would exceed Original Term.
For IO loans this would
have
Original Amortization Term no value. 360
------------------------------------------------------------------------------------------------------------------------------------
Ratio representing the Original Loan Balance to the
Original Loan To Value Ratio Original Appraised Value 75.69
------------------------------------------------------------------------------------------------------------------------------------
For Junior liens, Ratio representing the sum of the
Original Combined Loan To Original Loan Balance plus Original Senior Lien
Value Ratio Amount to the Original Appraised Value 85.23
------------------------------------------------------------------------------------------------------------------------------------
Original Appraised Value Appraised value at time of application. 550562
------------------------------------------------------------------------------------------------------------------------------------
Original Appraisal Date Date of the original Appraisal 12/1/2004
------------------------------------------------------------------------------------------------------------------------------------
Original Appraisal Firm Name of the Appraisal firm Union Appraisals
------------------------------------------------------------------------------------------------------------------------------------
Appraisal Form Type Form 1040 U, 2005
------------------------------------------------------------------------------------------------------------------------------------
Appraisal Review Type Desk Top, Drive By
------------------------------------------------------------------------------------------------------------------------------------
Original Purchase Price Price paid for home. 360000
------------------------------------------------------------------------------------------------------------------------------------
Purchase BPO BPO at the time of Purchase by GS. 580000
------------------------------------------------------------------------------------------------------------------------------------
Purchase BPO Date Date of the Purchase BPO 12/1/2004
------------------------------------------------------------------------------------------------------------------------------------
Original FICO score Credit bureau score obtained at application. 654
------------------------------------------------------------------------------------------------------------------------------------
Credit Score Company Experian
------------------------------------------------------------------------------------------------------------------------------------
Original Credit Grade B+
------------------------------------------------------------------------------------------------------------------------------------
First Time Borrower Flag N
------------------------------------------------------------------------------------------------------------------------------------
Flood Insurance Indicator Does the property have flood insurance Y
------------------------------------------------------------------------------------------------------------------------------------
Code/Flag to determine if loan was originated with a
Prepayment Flag prepayment penalty. (Y / N) Y
------------------------------------------------------------------------------------------------------------------------------------
Code/literal to identify characteristics of penalty. 6 Months Interest on
Prepayment Penalty Type Example: 6 MO INT ON 80% ▇▇▇▇, 5/4/3/2/1, 3%. 80%
------------------------------------------------------------------------------------------------------------------------------------
Prepayment Term Original number of months that penalty was imposed. 24
------------------------------------------------------------------------------------------------------------------------------------
Code/literal to identify loans where negative
amortization is allowed. Example: Y=neg am allowed,
Negative Amortization Flag N=no neg am allowed. Y
------------------------------------------------------------------------------------------------------------------------------------
Maximum percentage of original balance that a loan
Negam Percent Cap may negatively amortize by. (25%, etc.) 25
------------------------------------------------------------------------------------------------------------------------------------
Exh. 12-3
------------------------------------------------------------------------------------------------------------------------------------
negatively amortize by. (25%, etc.)
------------------------------------------------------------------------------------------------------------------------------------
Name or code for company providing private mortgage
MI Provider insurance. Radian
------------------------------------------------------------------------------------------------------------------------------------
MI Coverage Percentage Percentage of insurance provided by PMI agreement. 12
------------------------------------------------------------------------------------------------------------------------------------
MI Certificate ID Unique ID to identify PMI insurance certificate. 5829471
------------------------------------------------------------------------------------------------------------------------------------
Lender Paid Insurance Flag Indicates if Lender pays PMI Insurance Y
------------------------------------------------------------------------------------------------------------------------------------
Lender Paid Insurance Fee stated in percent 0.25
------------------------------------------------------------------------------------------------------------------------------------
Assumable Flag Indicates if loan is assumable Y
------------------------------------------------------------------------------------------------------------------------------------
Buydown Flag Indicates if the loan has a buydown option (Y/N) Y
------------------------------------------------------------------------------------------------------------------------------------
Balloon Term Number of months to Balloon Date 180
------------------------------------------------------------------------------------------------------------------------------------
Code/literal to identify balloon loans. Example: Y,
Balloon Flag N. Y
------------------------------------------------------------------------------------------------------------------------------------
IO Loans
------------------------------------------------------------------------------------------------------------------------------------
Indicates the term in months of the interest only
IO Term period 24
------------------------------------------------------------------------------------------------------------------------------------
Indicates if the loan is an interest only loan for a
IO Flag period of the loan Y
------------------------------------------------------------------------------------------------------------------------------------
Flag to identify loans where interest is due is
calculated based on the date that each payment is
Daily Simple Interest Flag actually received. Y
------------------------------------------------------------------------------------------------------------------------------------
Convertible
Loans
------------------------------------------------------------------------------------------------------------------------------------
Indicates that the borrower is allowed to convert an
Convertible Flag ARM mortgage to a Fixed Rate mortgage Y
------------------------------------------------------------------------------------------------------------------------------------
The specified period at which a borrower can choose
Convertible Term to exercise convertible rights 24
------------------------------------------------------------------------------------------------------------------------------------
Conversion Expiration Date Expiration date of conversion provisions 12/25/2006
------------------------------------------------------------------------------------------------------------------------------------
Conversion Fee Fee for converting loan from ARM to Fixed
------------------------------------------------------------------------------------------------------------------------------------
Conversion Formula
------------------------------------------------------------------------------------------------------------------------------------
The period designated for lookback calculation stated
Convert Lookback in days. 45
------------------------------------------------------------------------------------------------------------------------------------
Convert Index Index used for the conversion
------------------------------------------------------------------------------------------------------------------------------------
Convert Margin
------------------------------------------------------------------------------------------------------------------------------------
Convert Cap Down
------------------------------------------------------------------------------------------------------------------------------------
Convert Cap Up
------------------------------------------------------------------------------------------------------------------------------------
Convert Lifetime Cap Down
------------------------------------------------------------------------------------------------------------------------------------
Convert Lifetime Cap Up
------------------------------------------------------------------------------------------------------------------------------------
Exh. 12-4
------------------------------------------------------------------------------------------------------------------------------------
Convert Max PI CAP ( Up )
------------------------------------------------------------------------------------------------------------------------------------
Convert Max PI CAP ( Down )
------------------------------------------------------------------------------------------------------------------------------------
ARM Loans
------------------------------------------------------------------------------------------------------------------------------------
A 'Y' or 'N' to indicate if a loan is an Adjustable
ARM Flag rate mortgage Y
------------------------------------------------------------------------------------------------------------------------------------
Code/literal used to identify the specific underlying
index that adjustable rate loans will reset from. (6
Arm Index Description Months Libor, 1 Yr CMT, etc) 6ML
------------------------------------------------------------------------------------------------------------------------------------
The spread above the index value that a new rate on
adjustable rate loans will be set to; subject to caps
Margin and rounding. (stated in percent) 3.65
------------------------------------------------------------------------------------------------------------------------------------
Code/literal used to identify the method to be used
when computing new rate on adjustable rate loans.
ARM Rounding Feature (stated in percent) 0.125
------------------------------------------------------------------------------------------------------------------------------------
The actual number of days prior to the Next Rate
Reset Date that the underlying index will be
referenced for determining new rate on adjustable
Lookback Days rate loans. Examples: 45, 30, 0. 45
------------------------------------------------------------------------------------------------------------------------------------
The first date that any payment reset was/is
scheduled to occur. Typically is one month after
First Payment Reset Date First Rate Reset Date. 3/1/2007
------------------------------------------------------------------------------------------------------------------------------------
The first date that any rate reset was/is scheduled
to occur. Typically is one month prior to First
First Rate Reset Date Payment Reset Date. 2/1/2007
------------------------------------------------------------------------------------------------------------------------------------
Number of payments to be made prior to the first rate
reset. For a typical 5/1 ARM, this would contain the
Initial Rate Reset Period value 60. 60
------------------------------------------------------------------------------------------------------------------------------------
Number of payments to be made between rate changes
following the initial rate reset period. For a
Rate Reset Period typical 5/1 ARM this would contain the value 12. 12
------------------------------------------------------------------------------------------------------------------------------------
Number of payments to be made prior to the first
payment reset. For a typical 5/1 ARM, this would
contain the value 60. For non hybrid loans this
Initial Payment Reset Period would equal the Payment Reset Period. 60
------------------------------------------------------------------------------------------------------------------------------------
Number of payments to be made between payment changes
following the Initial Payment Reset Period. For a
Payment Reset Period typical 5/1 ARM this would contain the value 12. 12
------------------------------------------------------------------------------------------------------------------------------------
Initial Rate Adjustment Cap Maximum rate change allowed on First Rate Reset Date. 3
------------------------------------------------------------------------------------------------------------------------------------
First Cap Adjustment Down 0
------------------------------------------------------------------------------------------------------------------------------------
Maximum rate increase allowed subsequent to First
Rate Adjustment Cap Rate Reset Date. 1
------------------------------------------------------------------------------------------------------------------------------------
Maximum rate decrease allowed subsequent to First
Periodic Floor Rate Reset 0
------------------------------------------------------------------------------------------------------------------------------------
Exh. 12-5
------------------------------------------------------------------------------------------------------------------------------------
Date.
------------------------------------------------------------------------------------------------------------------------------------
The maximum amount the rate is allowed to increase by
Lifetime Caps over the life of the loan. 6
------------------------------------------------------------------------------------------------------------------------------------
The minimum amount the rate is allowed to increase by
Lifetime Floor over the life of the loan. 0
------------------------------------------------------------------------------------------------------------------------------------
Max Rate The absolute maximum rate allowed for the loan. 11.65
------------------------------------------------------------------------------------------------------------------------------------
Min Rate The absolute minimum rate allowed for the loan. 3.65
------------------------------------------------------------------------------------------------------------------------------------
Periodic Cap for monthly principal & interest payment
Payment Cap increase. Example 7.5%. 6.5
------------------------------------------------------------------------------------------------------------------------------------
General
Information
------------------------------------------------------------------------------------------------------------------------------------
Borrower Name Last Name Borrower's Last Name Doe
------------------------------------------------------------------------------------------------------------------------------------
Borrower Name First Name Borrower's First Name ▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
CoBorrower Name Last Name Co-Borrower's Last Name Doe
------------------------------------------------------------------------------------------------------------------------------------
CoBorrower Name First Name Co-Borrower's First Name ▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Borrower Social Security
Number/TIN Eleven character ID. Example: ▇▇▇-▇▇-▇▇▇▇. ▇▇▇-▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
CoBorrower Social Security
Number/TIN Eleven character ID. Example: ▇▇▇-▇▇-▇▇▇▇. ▇▇▇-▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Self Employment Flag Y
------------------------------------------------------------------------------------------------------------------------------------
Borrower Age 52
------------------------------------------------------------------------------------------------------------------------------------
Co-Age 56
------------------------------------------------------------------------------------------------------------------------------------
Borrower Race
------------------------------------------------------------------------------------------------------------------------------------
Co-Race
------------------------------------------------------------------------------------------------------------------------------------
Borrower Gender Male
------------------------------------------------------------------------------------------------------------------------------------
Co-Gender Female
------------------------------------------------------------------------------------------------------------------------------------
Income 182564
------------------------------------------------------------------------------------------------------------------------------------
Co-Income 256453
------------------------------------------------------------------------------------------------------------------------------------
Co_credit Score 841
------------------------------------------------------------------------------------------------------------------------------------
Borrower Ethnicity
------------------------------------------------------------------------------------------------------------------------------------
Co-Ethnicity
------------------------------------------------------------------------------------------------------------------------------------
Exh. 12-6
------------------------------------------------------------------------------------------------------------------------------------
Information
Type Field Name Description Example
------------------------------------------------------------------------------------------------------------------------------------
Servicer Monthly Updated Information
------------------------------------------------------------------------------------------------------------------------------------
Loan Number Loan Number currently being used to service this loan. 123456789
------------------------------------------------------------------------------------------------------------------------------------
This is the servicer assigned number for reporting
Investor Number purposes. 691
------------------------------------------------------------------------------------------------------------------------------------
This is the servicer assigned category for reporting
Investor Category purposes. 2
------------------------------------------------------------------------------------------------------------------------------------
As of Date As of Date of data being provided
------------------------------------------------------------------------------------------------------------------------------------
Indicates whether the loan
is serviced on an actual or
scheduled basis.
Servicing Method (act/act,act/sched,sched/act,sched/sched) (sched/sched)
------------------------------------------------------------------------------------------------------------------------------------
Indicates if ABS or MBS method for reporting
Delinquency Convention delinquencies is used. MBS
------------------------------------------------------------------------------------------------------------------------------------
Beginning scheduled loan balance. If the loan is
Beginning Scheduled Balance serviced on a scheduled balance basis
------------------------------------------------------------------------------------------------------------------------------------
Ending scheduled loan balance. If the loan is
Ending Scheduled Balance serviced on a scheduled balance basis
------------------------------------------------------------------------------------------------------------------------------------
Actual balance at the beginning of the period.
This is most likely last period's ending balance
Beginning Actual Balance carried forward
------------------------------------------------------------------------------------------------------------------------------------
Ending Actual Balance Ending actual principal balance outstanding
------------------------------------------------------------------------------------------------------------------------------------
Accrued Interest Total Accrued Interest on loan.
------------------------------------------------------------------------------------------------------------------------------------
This is the actual date when the last payment on the
loan is scheduled to be made. For balloons it should
be the balloon date. For modified loans it should be
Current Maturity Date the modified maturity date. 1/1/2020
------------------------------------------------------------------------------------------------------------------------------------
Current scheduled Principal, Interest, Tax and
Current Scheduled PITI Insurance payment
------------------------------------------------------------------------------------------------------------------------------------
Current scheduled amount of monthly Principal and
Current Scheduled PI Interest
------------------------------------------------------------------------------------------------------------------------------------
Interest Rate in effect for currently outstanding
Current Interest Rate payment. 8.55
------------------------------------------------------------------------------------------------------------------------------------
The current rate exclusive of LPMI, servicing and
Current Net Interest Rate other fees. 7.55
------------------------------------------------------------------------------------------------------------------------------------
Exh. 12-7
------------------------------------------------------------------------------------------------------------------------------------
Number used to identify the lien position in effect
at the time of application. Example: ▇, ▇, ▇, ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇▇) 1
------------------------------------------------------------------------------------------------------------------------------------
Senior Lien Amount Most recently recorded senior lien amount. 0
------------------------------------------------------------------------------------------------------------------------------------
Remaining Term The Remaining Term of the loan 179
------------------------------------------------------------------------------------------------------------------------------------
Scheduled Due Date Scheduled payment date. 2/1/2005
------------------------------------------------------------------------------------------------------------------------------------
Next Due Date Date next payment is due. 2/1/2005
------------------------------------------------------------------------------------------------------------------------------------
Date interest is paid to. Typically for 30/360 loans
Interest Paid To Date it is one month prior to Next Due Date. 1/1/2005
------------------------------------------------------------------------------------------------------------------------------------
Last Payment Date Date last payment was made. 1/1/2005
------------------------------------------------------------------------------------------------------------------------------------
Code/literal used to identify loan status. Provide
enumerations worksheet if applicable. EX: Current,
Status of Loan Foreclosure, Bankruptcy, REO, etc. Foreclosure
------------------------------------------------------------------------------------------------------------------------------------
12 character string representing the timing of
payments received on a rolling 12 month basis.
String should begin with January and end with
12 Month Pay String December.
------------------------------------------------------------------------------------------------------------------------------------
Last Modification Date Date that loan was last modified.
------------------------------------------------------------------------------------------------------------------------------------
Extensions Granted Number of extensions granted, life of loan
------------------------------------------------------------------------------------------------------------------------------------
Total Extension Months Number of months loan has been extended in total.
------------------------------------------------------------------------------------------------------------------------------------
Recent Property Valuation Most recent appraised value or BPO value.
------------------------------------------------------------------------------------------------------------------------------------
Recent Property Valuation Date Date of most recent valuation.
------------------------------------------------------------------------------------------------------------------------------------
Identify method used to obtain new valuation.
Valuation Method Provide enumerations worksheet if applicable.
------------------------------------------------------------------------------------------------------------------------------------
Valuation Firm Name of the Firm who appraised the property
------------------------------------------------------------------------------------------------------------------------------------
Current FICO Current FICO score.
------------------------------------------------------------------------------------------------------------------------------------
FICO Date Current FICO Date.
------------------------------------------------------------------------------------------------------------------------------------
Servicing Fee Percentage The fee rate to service the loan
------------------------------------------------------------------------------------------------------------------------------------
The actual service fee for the loan for the given
Servicing Fee Payment month
------------------------------------------------------------------------------------------------------------------------------------
Total Monthly Payment Total cash received from borrower.
------------------------------------------------------------------------------------------------------------------------------------
Total Monthly Payment Principal Cash applied to principal.
------------------------------------------------------------------------------------------------------------------------------------
Total Monthly Payment Interest Cash applied to interest.
------------------------------------------------------------------------------------------------------------------------------------
Total Monthly Payment
Ancillary Fees Cash applied to fees.
------------------------------------------------------------------------------------------------------------------------------------
Total Monthly Prepayment Amount Total principal curtailment
------------------------------------------------------------------------------------------------------------------------------------
Interest Adjustment Adjustments made to a previous month's interest
------------------------------------------------------------------------------------------------------------------------------------
Principal Adjustment Adjustments made to a previous month's principal
------------------------------------------------------------------------------------------------------------------------------------
Negative Amortization Amount
(Monthly) The monthly negative amortization amount
------------------------------------------------------------------------------------------------------------------------------------
Exh. 12-8
------------------------------------------------------------------------------------------------------------------------------------
Negative Amortization Amount
(Total) The negative amornization amount up-to-date
------------------------------------------------------------------------------------------------------------------------------------
Advances
------------------------------------------------------------------------------------------------------------------------------------
Current balance of escrow account (borrower's
Escrow Balance positive funds)
------------------------------------------------------------------------------------------------------------------------------------
Net escrow advances made or recovered by servicer.
Monthly Escrow Advances Positive value denotes payments made by servicer.
------------------------------------------------------------------------------------------------------------------------------------
Escrow Advance Balance Total outstanding escrow advance balance.
------------------------------------------------------------------------------------------------------------------------------------
Net corporate advances made or recovered by servicer.
Monthly Corporate Advances Positive value denotes payments made by servicer.
------------------------------------------------------------------------------------------------------------------------------------
Recoverable Corporate Advance Recoverable corporate advance balance where a +
Balance denotes a payment made by the servicer
------------------------------------------------------------------------------------------------------------------------------------
Non Recoverable Corporate Balance of Corporate Advances made that are not
Advance Balance recoverable from the borrower
------------------------------------------------------------------------------------------------------------------------------------
Total Corporate Advance Balance Total outstanding Corporate Advance Balance
------------------------------------------------------------------------------------------------------------------------------------
Monthly Principal Advances Amount of principal advanced in current month
------------------------------------------------------------------------------------------------------------------------------------
Principal Advance Balance Total outstanding principal advances made by servicer.
------------------------------------------------------------------------------------------------------------------------------------
Monthly Interest Advances Amount of interest advanced in current month
------------------------------------------------------------------------------------------------------------------------------------
Interest Advance Balance Total outstanding interest advances made by servicer.
------------------------------------------------------------------------------------------------------------------------------------
Suspense Account Balance Total suspense account balance
------------------------------------------------------------------------------------------------------------------------------------
Code indicating loan has been placed in a stop
Stop Advance Flag advance status. Example: Y=Stop Advance.
------------------------------------------------------------------------------------------------------------------------------------
Date loan was initially placed on a stop advance
Stop Advance Start Date status.
------------------------------------------------------------------------------------------------------------------------------------
Amount of principal and interest advances recovered
Stop Advance Recovered at stop date.
------------------------------------------------------------------------------------------------------------------------------------
Stop Advance Reversal Date Date stop advance status was reversed.
------------------------------------------------------------------------------------------------------------------------------------
Stop Advance Reversal Amount Amount of advances reversed.
------------------------------------------------------------------------------------------------------------------------------------
Flood / Hazard / Other Insurance
------------------------------------------------------------------------------------------------------------------------------------
Hazard Insurance Carrier
------------------------------------------------------------------------------------------------------------------------------------
Hazard Insurance Amount
------------------------------------------------------------------------------------------------------------------------------------
Hazard Expiration Date
------------------------------------------------------------------------------------------------------------------------------------
Force-Placed Hazard Insurance Y/N
------------------------------------------------------------------------------------------------------------------------------------
Flood Insurance Carrier
------------------------------------------------------------------------------------------------------------------------------------
Flood Insurance Amount
------------------------------------------------------------------------------------------------------------------------------------
Flood Insurance Date
------------------------------------------------------------------------------------------------------------------------------------
Force-Placed Flood Insurance Y/N
------------------------------------------------------------------------------------------------------------------------------------
Exh. 12-9
------------------------------------------------------------------------------------------------------------------------------------
Flood Zone FEMA zones (Zone A, Zone B, etc.)
------------------------------------------------------------------------------------------------------------------------------------
Other Insurance Provide enumerations. Ex: Wind, earthquake, etc.
------------------------------------------------------------------------------------------------------------------------------------
Default
------------------------------------------------------------------------------------------------------------------------------------
Last Contact Date Date of Servicer's last contact with the borrower.
------------------------------------------------------------------------------------------------------------------------------------
Date of the Servicer's last attempt to contact the
Last Attempt Date borrower.
------------------------------------------------------------------------------------------------------------------------------------
Serciver Code representing the Reason for Default.
Reason For Default Provide Enumerations worksheet.
------------------------------------------------------------------------------------------------------------------------------------
In Demand Flag Code indicating demand letter has been sent.
------------------------------------------------------------------------------------------------------------------------------------
In Demand Start Date Date demand letter was sent.
------------------------------------------------------------------------------------------------------------------------------------
In Demand End Date Expiration of demand letter.
------------------------------------------------------------------------------------------------------------------------------------
Forbearance Flag Formal forbearance payment plan. Y/N
------------------------------------------------------------------------------------------------------------------------------------
Payment Plan Flag Informal or verbal payment plan agreement Y/N
------------------------------------------------------------------------------------------------------------------------------------
Forbearance Start Date Date forbearance plan was initiated.
------------------------------------------------------------------------------------------------------------------------------------
Forbearance End Date Date forbearance plan scheduled to be complete.
------------------------------------------------------------------------------------------------------------------------------------
Bankruptcy Flag Flag indicating loan is in bankruptcy.
------------------------------------------------------------------------------------------------------------------------------------
Bankruptcy Chapter Chapter of bankruptcy (7, 11, 12, 13, OTH).
------------------------------------------------------------------------------------------------------------------------------------
Bankruptcy Start Date Bankruptcy filing date.
------------------------------------------------------------------------------------------------------------------------------------
Bankruptcy Release Date Dismissal / Discharge date
------------------------------------------------------------------------------------------------------------------------------------
Bankruptcy Release Type Dismissal / Discharge / Motion for Relief
------------------------------------------------------------------------------------------------------------------------------------
Bankruptcy Post Petition Due Payment due date of Bankruptcy payment plan, i.e. the
Date new due date.
------------------------------------------------------------------------------------------------------------------------------------
Motion for Relief Request Date Motion for relief referral date.
------------------------------------------------------------------------------------------------------------------------------------
Motion for Relief Filing Date Date motion for relief filed with the court.
------------------------------------------------------------------------------------------------------------------------------------
Motion for Relief Hearing Date Motion for Relief Hearing Date.
------------------------------------------------------------------------------------------------------------------------------------
Motion for Relief Granted Date Motion for Relief Granted Date.
------------------------------------------------------------------------------------------------------------------------------------
Motion for Relief Denied Date Date the motion was Denied (if applicable)
------------------------------------------------------------------------------------------------------------------------------------
Foreclosure Indicator Flag Y/N
------------------------------------------------------------------------------------------------------------------------------------
First Legal Date Date of first legal action taken on foreclosure.
------------------------------------------------------------------------------------------------------------------------------------
Foreclosure Start Date Date of Referral to FC Attorney
------------------------------------------------------------------------------------------------------------------------------------
Foreclosure Estimated Sale Date Projected date of foreclosure sale.
------------------------------------------------------------------------------------------------------------------------------------
Foreclosure Sale Date Date of actual foreclosure sale.
------------------------------------------------------------------------------------------------------------------------------------
Flag indicating that the loan is in foreclosure but
Foreclosure On Hold on hold.
------------------------------------------------------------------------------------------------------------------------------------
Date indicating when the loan's foreclosure
Foreclosure Hold Start Date proceedings were put on hold.
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇. ▇▇-▇▇
------------------------------------------------------------------------------------------------------------------------------------
Number of days an active foreclosure has been in BK
Bankruptcy Delays subsequent to its initial foreclosure start date.
------------------------------------------------------------------------------------------------------------------------------------
Number of allowable days that a loan's
foreclosure proceedings have been on hold due to a
non cash delay (i.e. Title problem...) [again as per
Non - Cash Delays Fannie or ▇▇▇▇▇▇▇ time line]
------------------------------------------------------------------------------------------------------------------------------------
REO Start Date
------------------------------------------------------------------------------------------------------------------------------------
REO End Date Date property is sold.
------------------------------------------------------------------------------------------------------------------------------------
Status while within REO. Provide enumerations
worksheet if applicable. Ex: Eviction, Redemption,
REO Sub Status PreMarket, Listed, Under Contract
------------------------------------------------------------------------------------------------------------------------------------
Date when the servicer takes possession of the
property. Date we have full access to the property,
Possession Date eviction completed
------------------------------------------------------------------------------------------------------------------------------------
Eviction Start Date Date that the REO enters "Eviction" sub status
------------------------------------------------------------------------------------------------------------------------------------
Eviction End Date Date eviction action closed
------------------------------------------------------------------------------------------------------------------------------------
Under Contract Date Date that the REO enters "Under Contract" sub status
------------------------------------------------------------------------------------------------------------------------------------
Under Contract Price
------------------------------------------------------------------------------------------------------------------------------------
Estimated Closing Date Servicer estimated closing date on loan
------------------------------------------------------------------------------------------------------------------------------------
Actual Closing Date Actual closing date on loan.
------------------------------------------------------------------------------------------------------------------------------------
Legal time period, determined by State, when
borrower can redeem their property. Property not
available for sale until redemption completed (no
Redemption End Date beginning date, just an end date)
------------------------------------------------------------------------------------------------------------------------------------
Initial Listing Price First listing price of property.
------------------------------------------------------------------------------------------------------------------------------------
Initial Listing Date Date of the first listing price of property
------------------------------------------------------------------------------------------------------------------------------------
Current List Price Most recent listing price of property.
------------------------------------------------------------------------------------------------------------------------------------
Current List Date Date of the most recent listing price of property.
------------------------------------------------------------------------------------------------------------------------------------
Original REO Value Original REO target value
------------------------------------------------------------------------------------------------------------------------------------
Current REO Value Current REO target value
------------------------------------------------------------------------------------------------------------------------------------
FHA / VA
------------------------------------------------------------------------------------------------------------------------------------
Date property has been placed into condition
Conveyance Condition Date acceptable by HUD for title transfer
------------------------------------------------------------------------------------------------------------------------------------
FHA Case # FHA case number
------------------------------------------------------------------------------------------------------------------------------------
VA Loan Identification Number VA loan identification number
------------------------------------------------------------------------------------------------------------------------------------
Debenture Rate HUD assigned debenture rate
------------------------------------------------------------------------------------------------------------------------------------
First Vacancy Date Date property first became vacant
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇. ▇▇-▇▇
------------------------------------------------------------------------------------------------------------------------------------
FHA Default Date Dafault date as defined by FHA
------------------------------------------------------------------------------------------------------------------------------------
Date FHA Part A Filed Date servicer files Part A with HUD
------------------------------------------------------------------------------------------------------------------------------------
Date Part A funds are received from HUD to the
Date FHA Part A Settlement Date servicer
------------------------------------------------------------------------------------------------------------------------------------
Amount of Part A Funds Received Amount of funds received from HUD to the servicer
------------------------------------------------------------------------------------------------------------------------------------
Date Deed Sent for Recording Date servicer forwards the deed for recordation
------------------------------------------------------------------------------------------------------------------------------------
Title Approval date Date title approved by HUD
------------------------------------------------------------------------------------------------------------------------------------
Date FHA Part B Filed Date servicer files Part B with HUD
------------------------------------------------------------------------------------------------------------------------------------
Date Part B funds are received from HUD to the
Date FHA Part B Settlement Date servicer
------------------------------------------------------------------------------------------------------------------------------------
Amount of Part B Funds Received Amount of funds received from HUD to the servicer
------------------------------------------------------------------------------------------------------------------------------------
Date VA Claim Filed Date VA claim filed with VA
------------------------------------------------------------------------------------------------------------------------------------
Curtailment Amount 1 Amount of HUD or VA curtailment
------------------------------------------------------------------------------------------------------------------------------------
Curtailment Date 1 Date of HUD or VA curtailment
------------------------------------------------------------------------------------------------------------------------------------
Curtailment Adjusted Amount 1 Curtailment amount received from HUD or VA claim
------------------------------------------------------------------------------------------------------------------------------------
Curtailment Amount 2 Amount of HUD or VA curtailment 2nd curtailment
------------------------------------------------------------------------------------------------------------------------------------
Curtailment Date 2 Date of HUD or VA curtailment 2nd curtailment
------------------------------------------------------------------------------------------------------------------------------------
Curtailment amount received from HUD or VA claim 2nd
Curtailment Adjusted Amount 2 curtailment
------------------------------------------------------------------------------------------------------------------------------------
Curtailment Amount 3 Amount of HUD or VA curtailment 3rd curtailment
------------------------------------------------------------------------------------------------------------------------------------
Curtailment Date 3 Date of HUD or VA curtailment 3rd curtailment
------------------------------------------------------------------------------------------------------------------------------------
Curtailment amount received from HUD or VA claim 3rd
Curtailment Adjusted Amount 3 curtailment
------------------------------------------------------------------------------------------------------------------------------------
VA Cutoff Date Date of loan liquidation or date deed is recorded
------------------------------------------------------------------------------------------------------------------------------------
Amount of arrears placed into a partial claim in
Partial Claim Amount order to bring the borrower current
------------------------------------------------------------------------------------------------------------------------------------
Date partial claim was completed or that the loan
is brought current as a result of the completed partial
Partial Claim Date claim
------------------------------------------------------------------------------------------------------------------------------------
Termination
Information
------------------------------------------------------------------------------------------------------------------------------------
Liquidation Date
------------------------------------------------------------------------------------------------------------------------------------
Type of liquidation (charge-off, Third party sale,
Liquidation Type etc). Provide enumerations worksheet if applicable.
------------------------------------------------------------------------------------------------------------------------------------
Balance at Liquidation Actual Principal balance at time of liquidation
------------------------------------------------------------------------------------------------------------------------------------
Gross Total Proceeds Gross Total Proceeds.
------------------------------------------------------------------------------------------------------------------------------------
Net Total Proceeds Gross total proceeds less expenses.
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇. ▇▇-▇▇
------------------------------------------------------------------------------------------------------------------------------------
Principal Advanced at
Liquidation Total of principal advanced at time of liquidation.
------------------------------------------------------------------------------------------------------------------------------------
Interest Advanced at
Liquidation Total of interest advanced at time of liquidation.
------------------------------------------------------------------------------------------------------------------------------------
Corporate Advances at
Liquidation Corporate advance balance at time of liquidation.
------------------------------------------------------------------------------------------------------------------------------------
Escrow Advances at Liquidation Escrow advance balance at time of liquidation.
------------------------------------------------------------------------------------------------------------------------------------
Principal Advances Recovered The amount of the Principal balance recovered at
at Liquidation liquidation
------------------------------------------------------------------------------------------------------------------------------------
Interest Advances Recovered at The amount of the Interest balance recovered at
Liquidation liquidation
------------------------------------------------------------------------------------------------------------------------------------
Corporate Advances Recovered The amount of the Total Corporate Advance balance
at Liquidation recovered at liquidation
------------------------------------------------------------------------------------------------------------------------------------
Escrow Advances Recovered at The amount of the Total Escrow Advance balance
Liquidation recovered at liquidation
------------------------------------------------------------------------------------------------------------------------------------
Commission The broker commission amount on liquidation
------------------------------------------------------------------------------------------------------------------------------------
The dollar amount of seller concessions upon
Seller Concession liquidation.
------------------------------------------------------------------------------------------------------------------------------------
Repairs Cost of Repairs to property
------------------------------------------------------------------------------------------------------------------------------------
Amount servicer withholds for future trailing
Servicer Hold Back Amount expenses.
------------------------------------------------------------------------------------------------------------------------------------
Charge-off amount Loss amount.
------------------------------------------------------------------------------------------------------------------------------------
Paid in Full Loans
------------------------------------------------------------------------------------------------------------------------------------
Paid-Off Indicator User defined
------------------------------------------------------------------------------------------------------------------------------------
Paid-Off Date
------------------------------------------------------------------------------------------------------------------------------------
Pre-Payment Penalty Flag Y/N
------------------------------------------------------------------------------------------------------------------------------------
Pre-Payment Penalty Collected Dollar amount of penalty collected
------------------------------------------------------------------------------------------------------------------------------------
Balance at Termination Actual Principal balance at time of termination.
------------------------------------------------------------------------------------------------------------------------------------
Principal Amount Collected
------------------------------------------------------------------------------------------------------------------------------------
Interest Amount Collected
------------------------------------------------------------------------------------------------------------------------------------
Receivables After Loss Insurance
------------------------------------------------------------------------------------------------------------------------------------
Hazard Insurance Claim Date Date hazard claim filed.
------------------------------------------------------------------------------------------------------------------------------------
Hazard Insurance Claim Due Date Date hazard claim due.
------------------------------------------------------------------------------------------------------------------------------------
Hazard Insurance Claim Amount Amount of hazard claim.
------------------------------------------------------------------------------------------------------------------------------------
Hazard Insurance Claim Paid
Amount Amount of hazard claim paid to investor.
------------------------------------------------------------------------------------------------------------------------------------
MI Insurance Claim Date Date MI claim filed.
------------------------------------------------------------------------------------------------------------------------------------
MI Insurance Claim Due Date Date MI claim is due to be paid.
------------------------------------------------------------------------------------------------------------------------------------
MI Insurance Claim Amount Expected MI proceeds.
------------------------------------------------------------------------------------------------------------------------------------
MI Insurance Claim Paid Amount Actual MI proceeds received.
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇. ▇▇-▇▇
------------------------------------------------------------------------------------------------------------------------------------
Receivables After Loss Deficiency
------------------------------------------------------------------------------------------------------------------------------------
Potential Deficiency Judgment Flag indicating loan is referred for deficiency
Flag collections.
------------------------------------------------------------------------------------------------------------------------------------
Potential Deficiency Amount Deficiency balance reported to borrower/IRS.
------------------------------------------------------------------------------------------------------------------------------------
Deficiency Proceeds (this
period) Deficiency proceeds collected in current month.
------------------------------------------------------------------------------------------------------------------------------------
Net Deficiency Proceeds
(this period)
------------------------------------------------------------------------------------------------------------------------------------
Total Deficiency Proceeds (to
date) Deficiency proceeds collected to date.
------------------------------------------------------------------------------------------------------------------------------------
Total Net Deficiency Proceeds
(to date)
------------------------------------------------------------------------------------------------------------------------------------
Deficiency Vendor Expense Deficiency vendor out of pocket expenses.
------------------------------------------------------------------------------------------------------------------------------------
Static Data
------------------------------------------------------------------------------------------------------------------------------------
Borrower Name Last Name Borrower's Last Name Doe
------------------------------------------------------------------------------------------------------------------------------------
Borrower Name First Name Borrower's First Name ▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Borrower Social Security
Number/TIN Eleven character ID. Example: ▇▇▇-▇▇-▇▇▇▇. ▇▇▇-▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Origination Date Origination Date shown on loan documents. 12/25/2004
------------------------------------------------------------------------------------------------------------------------------------
Code/literal to identify the loan type. (Conventional
Loan Type [w/] PMI , Jumbo, FHA, VA, etc) Conventional - PMI
------------------------------------------------------------------------------------------------------------------------------------
Code/literal that identifies the type of property
Property Type securing the loan. ( 2 Family, PUD) PUD
------------------------------------------------------------------------------------------------------------------------------------
Occupancy status at time of application. (2nd home,
Occupancy Type owner occupied, vacant, etc) OO
------------------------------------------------------------------------------------------------------------------------------------
Property Address Property address, not billing address. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Property City Property city. Toronto
------------------------------------------------------------------------------------------------------------------------------------
Property State Property state. NY
------------------------------------------------------------------------------------------------------------------------------------
Property Zip Property zip. 10004
------------------------------------------------------------------------------------------------------------------------------------
Original amount of loan granted to borrower. In the
case of construction loans this should be the full
amount extended on which the monthly payments are
Original Balance based. 250000.00
------------------------------------------------------------------------------------------------------------------------------------
Amount of senior lien outstanding when loan was
Original Senior Lien Amount originated. 0.00
------------------------------------------------------------------------------------------------------------------------------------
Original contractual interest rate for loan.
Original Interest Rate (provide all decimal places) 8.515
------------------------------------------------------------------------------------------------------------------------------------
This is the contractual date when the first payment
First Payment Date was 2/1/2005
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇. ▇▇-▇▇
------------------------------------------------------------------------------------------------------------------------------------
to be made.
------------------------------------------------------------------------------------------------------------------------------------
This is the contractual date when the last payment on
the loan is scheduled to be made. For balloons it
Original Maturity Date should be the balloon date. 1/1/2020
------------------------------------------------------------------------------------------------------------------------------------
Ratio representing the Original Loan Balance to the
Original Loan To Value Ratio Original Appraised Value 75.69
------------------------------------------------------------------------------------------------------------------------------------
Original Appraised Value Appraised value at time of application. 550562
------------------------------------------------------------------------------------------------------------------------------------
Original FICO score Credit bureau score obtained at application. 654
------------------------------------------------------------------------------------------------------------------------------------
Code/literal to identify characteristics of penalty. 6 Months Interest on
Prepayment Penalty Type Example: 6 MO INT ON 80% ▇▇▇▇, 5/4/3/2/1, 3%. 80%
------------------------------------------------------------------------------------------------------------------------------------
Prepayment Term Original number of months that penalty was imposed. 24
------------------------------------------------------------------------------------------------------------------------------------
Code/literal to identify loans where negative
amortization is allowed. Example: Y=neg am allowed,
Negative Amortization Flag N=no neg am allowed. Y
------------------------------------------------------------------------------------------------------------------------------------
Maximum percentage of original balance that a loan
Negam Percent Cap may negatively amortize by. (25%, etc.) 25
------------------------------------------------------------------------------------------------------------------------------------
Name or code for company providing private mortgage
MI Provider insurance. Radian
------------------------------------------------------------------------------------------------------------------------------------
MI Coverage Percentage Percentage of insurance provided by PMI agreement. 12
------------------------------------------------------------------------------------------------------------------------------------
MI Certificate ID Unique ID to identify PMI insurance certificate. 5829471
------------------------------------------------------------------------------------------------------------------------------------
ARM Loans
------------------------------------------------------------------------------------------------------------------------------------
A 'Y' or 'N' to indicate if a loan is an Adjustable
ARM Flag rate mortgage Y
------------------------------------------------------------------------------------------------------------------------------------
Code/literal used to identify the specific underlying
index that adjustable rate loans will reset from. (6
Arm Index Description Months Libor, 1 Yr CMT, etc) 6ML
------------------------------------------------------------------------------------------------------------------------------------
The spread above the index value that a new rate on
adjustable rate loans will be set to; subject to caps
Margin and rounding. (stated in percent) 3.65
------------------------------------------------------------------------------------------------------------------------------------
Code/literal used to identify the method to be used
when computing new rate on adjustable rate loans.
ARM Rounding Feature (stated in percent) 0.125
------------------------------------------------------------------------------------------------------------------------------------
The actual number of days prior to the Next Rate
Reset Date that the underlying index will be
referenced for determining new rate on adjustable
Lookback Days rate loans. Examples: 45, 30, 0. 45
------------------------------------------------------------------------------------------------------------------------------------
The first date that any payment reset was/is
scheduled to occur. Typically is one month after
First Payment Reset Date First Rate Reset Date. 3/1/2007
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇. ▇▇-▇▇
------------------------------------------------------------------------------------------------------------------------------------
The first date that any rate reset was/is scheduled
to occur. Typically is one month prior to First
First Rate Reset Date Payment Reset Date. 2/1/2007
------------------------------------------------------------------------------------------------------------------------------------
Number of payments to be made prior to the first rate
reset. For a typical 5/1 ARM, this would contain the
Initial Rate Reset Period value 60. 60
------------------------------------------------------------------------------------------------------------------------------------
Number of payments to be made between rate changes
following the initial rate reset period. For a
Rate Reset Period typical 5/1 ARM this would contain the value 12. 12
------------------------------------------------------------------------------------------------------------------------------------
Number of payments to be made prior to the first
payment reset. For a typical 5/1 ARM, this would
contain the value 60. For non hybrid loans this
Initial Payment Reset Period would equal the Payment Reset Period. 60
------------------------------------------------------------------------------------------------------------------------------------
Number of payments to be made between payment changes
following the Initial Payment Reset Period. For a
Payment Reset Period typical 5/1 ARM this would contain the value 12. 12
------------------------------------------------------------------------------------------------------------------------------------
Initial Rate Adjustment Cap Maximum rate change allowed on First Rate Reset Date. 3
------------------------------------------------------------------------------------------------------------------------------------
The next date that any rate reset is scheduled to
occur. Typically is one month prior to Next Payment
Next Rate Reset Date Reset Date.
------------------------------------------------------------------------------------------------------------------------------------
The next date that any payment reset is scheduled to
occur. Typically is one month after Next Rate Reset
Next Payment Reset Date Date.
------------------------------------------------------------------------------------------------------------------------------------
Maximum rate increase allowed subsequent to First
Rate Adjustment Cap Rate Reset Date. 1
------------------------------------------------------------------------------------------------------------------------------------
Maximum rate decrease allowed subsequent to First
Periodic Floor Rate Reset Date. 0
------------------------------------------------------------------------------------------------------------------------------------
The maximum amount the rate is allowed to increase by
Lifetime Caps over the life of the loan. 6
------------------------------------------------------------------------------------------------------------------------------------
The minimum amount the rate is allowed to increase by
Lifetime Floor over the life of the loan. 0
------------------------------------------------------------------------------------------------------------------------------------
Max Rate The absolute maximum rate allowed for the loan. 11.65
------------------------------------------------------------------------------------------------------------------------------------
Min Rate The absolute minimum rate allowed for the loan. 3.65
------------------------------------------------------------------------------------------------------------------------------------
Periodic Cap for monthly principal & interest payment
Payment Cap increase. Example 7.5%. 6.5
------------------------------------------------------------------------------------------------------------------------------------
Exh. 12-16
EXHIBIT 11
SERVICING TRANSFER LETTER
-------------------------
As of [_________]
[SELLER]
[ADDRESS]
Re: Letter Agreement in connection with the purchase by ▇▇▇▇▇▇▇ Sachs
Mortgage Company (the "Purchaser") and the sale by [Seller] (the
"Company") of mortgage loans pursuant to that certain Flow
Mortgage Loan Purchase and Warranties Agreement (the "Agreement"),
dated as of [_______], by and between the Company and the
Purchaser
Ladies and Gentlemen:
In connection with the above-referenced transaction, and in
consideration of the mutual agreements hereinafter set forth, and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Purchaser and the Company hereby agree as follows:
(1) Unless otherwise specified in this letter agreement, all capitalized
terms herein shall have the meaning as provided in the Agreement.
(2) The Purchaser hereby requests, and the Company hereby acknowledges,
that Saxon Mortgage Services, Inc. shall be the "Successor Servicer" under the
agreement.
(3) This letter may be executed in any number of counterparts each of
which shall constitute one and the same instrument, and either party hereto
may execute this letter by signing any such counterpart.
[the remainder of this page intentionally left blank]
(4) This letter shall be deemed in effect when a fully executed
counterpart thereof is received by the Company in the State of New York and
shall be deemed to have been made in the State of New York. This letter 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 the laws of the State of New York except to the extent
preempted by Federal law.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY
By:
Name:_________________________________
Title:________________________________
Accepted and Agreed:
[SELLER]
(Company)
By: _____________________________
Name: _____________________________
Title: _____________________________
Exh. 13-1
EXHIBIT 12
FORM OF ANNUAL CERTIFICATION
Re: [_______________] (the "Trust"), Mortgage Pass-Through
Certificates, Series [_____], issued pursuant to the Pooling and
Servicing Agreement, dated as of [_____], 2003 (the "Pooling and
Servicing Agreement"), among [_____], as depositor (the
"Depositor"), [_____], as trustee (the "Trustee"), [_____], as
servicer (the "Servicer"), and [_____], as responsible party
I, [identify the certifying individual], certify to the Depositor
and the Trustee, and their officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
1. The servicing information required to be provided to the Trustee
by the Servicer under the Pooling and Servicing Agreement has been
so provided;
2. I am responsible for reviewing the activities performed by the
Servicer under the Pooling and Servicing Agreement and based upon
my knowledge and the annual compliance review required under the
Pooling and Servicing Agreement, and except as disclosed in the
annual compliance statement required to be delivered to the
Trustee in accordance with the terms of the Pooling and Servicing
Agreement (which has been so delivered to the Trustee), the
Servicer has fulfilled its obligations under the Pooling and
Servicing Agreement; and
3. All significant deficiencies relating to the Servicer's
compliance with the minimum servicing standards for purposes of
the report provided by an independent public accountant, after
conducting a review conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar
procedure, as set forth in the Pooling and Servicing Agreement,
have been disclosed to such accountant and are included in such
reports.
Date: _________________________
_______________________________
[Signature]
[Title]
EXHIBIT 13
INTENTIONALLY OMITTED
-3-
EXHIBIT 14
SERVICER ACKNOWLEDGMENT
-----------------------
As of [_________]
[SELLER]
[ADDRESS]
Re: Letter Agreement in connection with the purchase by ▇▇▇▇▇▇▇ Sachs
Mortgage Company (the "Purchaser") and the sale by [Seller] (the
"Company") of mortgage loans pursuant to that certain Flow
Mortgage Loan Purchase and Warranties Agreement (the "Agreement"),
dated as of [_______], by and between the Company and the
Purchaser
Ladies and Gentlemen:
In connection with the above-referenced transaction, and in
consideration of the mutual agreements hereinafter set forth, and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Purchaser and the Company hereby agree as follows:
(5) Unless otherwise specified in this letter agreement, all capitalized
terms herein shall have the meaning as provided in the Agreement.
(6) The Purchaser hereby requests, and the Company hereby acknowledges,
that [SERVICER] shall be the "Successor Servicer" under the agreement.
(7) This letter may be executed in any number of counterparts each of
which shall constitute one and the same instrument, and either party hereto
may execute this letter by signing any such counterpart.
[the remainder of this page intentionally left blank]
-4-
(8) This letter shall be deemed in effect when a fully executed
counterpart thereof is received by the Company in the State of New York and
shall be deemed to have been made in the State of New York. This letter 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 the laws of the State of New York except to the extent
preempted by Federal law.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY
By:
Name:______________________________
Title:_____________________________
Accepted and Agreed:
[SELLER]
(Company)
By: _____________________________
Name: _____________________________
Title: _____________________________
Exh. 11-5
EXHIBIT 15
Subprime Default and REO Servicing Standards
o Right Party Contact Rate of twenty-seven and a half percent (27.50%)
per month. Termination standard is twenty-two and a half percent
(22.50%), after Servicer has failed to respond to the notice provisions
contained in the Flow Servicing Rights Purchase and Servicing Agreement
o Servicer shall meet the foreclosure timeline requirements as set forth
in the FNMA guidelines
Time Zones
----------
All accounts should be called until 9:00 p.m. in each time zone Monday
through Thursday.
Collection Call Statistics
--------------------------
With respect to only loans owned by GS ("GS Loans"), Servicer shall report
monthly to GS to the extent permitted by applicable law the following dialer
statistical information broken out by delinquency bucket and on a loan level
basis:
o Number of attempts made; ACD, predictive and non-predictive ;
o Number of right party contacts ;
o Number of commitments obtained; and
o Number of performing commitments.
The reports provided by Servicer to Purchaser will stratify the collection
work efforts and/or results in such a manner as to reasonably assure Purchaser
that Servicer is in material compliance with the agreed upon service levels.
Skip Tracing Statistics
-----------------------
A minimum of 50% of the accounts referred to skip tracing should result in a
good phone number for the borrower.
Broken Repayment Plans or Broken Promise to Pay
-----------------------------------------------
Follow-up with the Mortgagor within seventy-two (72) hours of the repayment
plan being broken.
FICO's
------
Updated FICO scores must be ordered, at GS's sole cost and expense, on all GS
Loans on a quarterly basis and reported to GS on the following month end tape.
▇▇▇. ▇▇-▇▇
VALUATIONS
----------
BPO should be ordered on the day in which a loan becomes sixty-five (65) days
delinquent if such loan is not cash flowing through a forbearance plan or
bankruptcy plan. Servicer should receive the requested BPO within twenty-one
(21) days of such BPO order with the understanding that such BPOs may be
received at any time depending on the totality of the circumstances; provided,
however, the Servicer shall provide GS with notice and weekly updates of any
developments with respect to any BPO which is not received by the Servicer
within twenty-one (21) days of such BPO order. Reconciliation should be
performed on a BPO within five (5) business days of receipt thereof. Servicer
system should reflect reconciled value upon receipt of the BPO. The reconciled
value should then be reported to GS with the next month end data tape.
BANKRUPTCY
----------
All bankruptcy actions will be managed according to FNMA guidelines including,
without limitation, bankruptcy set-up, filing proofs of claims, monitoring
plans, referring loans to an attorney, filing motions for relief, and/or
releasing bankruptcies back to foreclosure/normal servicing.
All loans owned by GS should be run though ▇▇▇▇▇ or a similar system once
every thirty (30) days.
FORECLOSURE
-----------
Servicer shall follow FNMA timelines for all GS loans in foreclosure.
Allowable delays shall include bankruptcy filings, litigation, loss mitigation
which results in cash being applied to the loan. Assignment delays should be
no longer than thirty (30) days. Title issues should be no longer than sixty
(60) days. Any delays that shall exceed these estimated timelines should be
reported to GS on a monthly basis. GS loans will not be referred to
foreclosure until the reconciled value has been received and evaluated.
Servicer shall maintain a foreclosure resolution rate of fifty percent (50%).
Exh. 11-7
EXHIBIT 16
REO Servicing Standards
Purpose: The purpose of these standards is to serve as a guideline for
valuations, reporting and overall management of Goldman REO Assets.
Property Valuations:
o BPO - As soon as the REO property in possession, by our attached
definition an interior BPO should be ordered by the servicer. The BPO
should state a Value as-is and a Repaired Value. It should include
interior photos, photos of outbuildings, and deferred maintenance. Upon
completion an original copy of the BPO is to be forwarded to the REO
Department of ▇▇▇▇▇▇▇ Sachs either in PDF format or overnight hard
copy. Sale and listing information on the BPO should be in a grid
format acceptable to ▇▇▇▇▇▇▇ ▇▇▇▇▇.
o APPRAISAL - (Only on new REO acquisitions) As soon as the property is
re-keyed and trashed out the servicer will at Goldman request, order a
full interior appraisal on form 1004 from an Appraiser acceptable to
▇▇▇▇▇▇▇ ▇▇▇▇▇. The appraiser should be given the access instructions by
the servicer. The full appraisal will include interior photos, photos
of all outbuildings and deferred maintenance. Required is "The
Supplemental REO Addendum Form" giving 3 listing comps, itemization of
needed repairs, and as-is and as-repaired value. Upon completion an
original copy of the Appraisal is to be forwarded or made available to
the REO Department of ▇▇▇▇▇▇▇ Sachs either in PDF format or overnight
hard copy.
o OTHER - Any and all subsequent BPO's, CMA's Appraisals, AVM's or other
evaluations ordered during the course of the REO term are to be made
available in the same manner.
Vendors:
o From time to time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ will provide the Servicer with a
published list of Appraisers, Appraisal Vendors, Realtors, Brokers and
other service providers with whom they prefer not to do business. The
Servicer will make commercially reasonable efforts to refrain from
using anyone named on such a list and ▇▇▇▇▇▇▇ Sachs reserves the right
to refuse any product or service and payment for that product or
service provided by such listed Appraisers, Appraisal Vendors,
Realtors, Brokers and other service providers - if, and only if, such
product or service does not comply with reasonable standards as
determined by generally accepted mortgage servicing practices of
prudent mortgage lending institutions which service mortgage loans of
the same type as such mortgage loan in the jurisdiction where the
related mortgaged property is located.
Possession:
o RE-KEYING - The property should be Re-keyed as soon as it is in our
possession both to keep prior occupants out and allow access to new
service providers and ▇▇▇▇▇▇▇ ▇▇▇▇▇ personnel. ▇▇▇▇▇▇▇ Sachs suggests
that the door be re-keyed to a master key code (key code to be
furnished to REO personnel at ▇▇▇▇▇▇▇ ▇▇▇▇▇) and the new keys be
placed in a combo lock box. The servicer will keep REO personnel at
▇▇▇▇▇▇▇ Sachs informed with proper access information.
o TRASH OUT - Defined as but not limited to; grass cut, shrubs and trees
trimmed, all debris cleared from interior and exterior, appliances
emptied, cleaned and secured, all trash removed from premises, windows
and doors secured, any fire or safety hazard removed. The property
should be trashed out before the full appraisal is ordered and the "For
Sale" sign is placed on the property.
o CASH FOR KEYS - The maximum allowable payment to either an owner or
tenant to vacate the property without ▇▇▇▇▇▇▇ ▇▇▇▇▇' prior consent
should be one thousand five hundred dollars ($1,500). If the servicer
intends to pay either an owner or tenant to vacate the property an
amount in excess of one thousand five hundred dollars ($1,500), the
servicer should make commercially reasonable efforts to obtain ▇▇▇▇▇▇▇
Sachs' prior consent. Every advance should be cost justified and that
data available to ▇▇▇▇▇▇▇ ▇▇▇▇▇ upon request. The exact amount of the
advance should be proportional to the benefit and made to avoid a
lengthily eviction process. Payments should be made only after the
property is actually vacated and inspected by designated agents of the
servicer. The servicer will report each month on all cash for keys
transactions.
o INSURANCE CLAIMS- The servicer will report on a monthly basis all
Insurance claims filed, claims denied and claims aged over ninety (90)
days during the reporting period.
On the Market:
o LISTING -
o All properties are expected to be listed within thirty (30) days of
possession.
o Properties not listed within thirty (30) days will require an
exceptions report at month end.
o All listings should be in the local MLS.
o Listing Agreements should not be for more than six (6) months.
o All listing agreements are subject to cancellation at any time
without penalty of liability to ▇▇▇▇▇▇▇ Sachs
o SIGNAGE -
o All listed properties are to have a sign that is conspicuous and
readable from the street which clearly indicates the property is
available for sale and contact information for prospective buyers.
o From the date of acquisition through the date of listing , the
broker/agent/servicer is to reasonably inspect the property until a
sale sign is posted.
Exh. 11-9
EXHIBIT 17
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the "Agreement"), among
[IDENTIFY PARTIES]
I, ________________________________, the _______________________
of [NAME OF COMPANY] (the "Company"), certify to [the Owner], [the Depositor],
and the [Master Servicer] [Securities Administrator] [Trustee], and their
officers, with the knowledge and intent that they will rely upon this
certification, that:
1. I have reviewed the servicer compliance statement of the
Company provided in accordance with Item 1123 of Regulation AB (the
"Compliance Statement"), the report on assessment of the Company's
compliance with the servicing criteria set forth in Item 1122(d) of
Regulation AB (the "Servicing Criteria"), provided in accordance with
Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Item 1122 of Regulation AB (the
"Servicing Assessment"), the registered public accounting firm's
attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), and all servicing reports, officer's certificates
and other information relating to the servicing of the Mortgage Loans by
the Company during 200[ ] that were delivered by the Company to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee]
pursuant to the Agreement (collectively, the "Company Servicing
Information");
2. Based on my knowledge, the Company Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made,
not misleading with respect to the period of time covered by the Company
Servicing Information;
3. Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee];
4. I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and
the compliance review conducted in preparing the Compliance Statement
and except as disclosed in the Compliance Statement, the Servicing
Assessment or the Attestation Report, the Company has fulfilled its
obligations under the Agreement in all material respects; and
5. The Compliance Statement required to be delivered by the
Company pursuant to the Agreement, and the Servicing Assessment and
Attestation Report required to be provided by the Company and by any
Subservicer or Subcontractor pursuant to the Agreement, have been
provided to the [Depositor] [Master Servicer]. Any material instances of
noncompliance described in such reports have been disclosed to the
[Depositor] [Master Servicer]. Any material instance of noncompliance
with the Servicing Criteria has been disclosed in such reports.
Date:__________________________________
By:____________________________________
Name:
Title:
Exh. [A]-2
EXHIBIT 18
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Servicer]
[Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria":
--------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
--------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------
General Servicing Considerations
--------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third
parties, policies and procedures are instituted to monitor
the third party's performance and compliance with such
servicing activities.
--------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a
back-up servicer for the mortgage loans are maintained.
--------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect
on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of the
transaction agreements.
--------------------------------------------------------------------------------
Cash Collection and Administration
--------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate
custodial bank accounts and related bank clearing accounts no
more than two business days following receipt, or such other
number of days specified in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor
or to an investor are made only by authorized personnel.
--------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash
flows or distributions, and any interest or other fees
charged for such advances, are made, reviewed and approved as
specified in the transaction agreements.
--------------------------------------------------------------------------------
Exh. [B]-1
--------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
--------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the
transaction agreements.
--------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
--------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized
access.
--------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts. These
reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the bank statement cutoff date,
or such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than
the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items
are resolved within 90 calendar days of their original
identification, or such other number of days specified in the
transaction agreements.
--------------------------------------------------------------------------------
Investor Remittances and Reporting
--------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance
with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the terms specified in the transaction agreements; (C)
are filed with the Commission as required by its rules and
regulations; and (D) agree with investors' or the trustee's
records as to the total unpaid principal balance and number
of mortgage loans serviced by the Servicer.
--------------------------------------------------------------------------------
Exh. [B]-2
--------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
--------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other
terms set forth in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such
other number of days specified in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree
with cancelled checks, or other form of payment, or custodial
bank statements.
--------------------------------------------------------------------------------
Pool Asset Administration
--------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related mortgage
loan documents.
--------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as
required by the transaction agreements
--------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any
conditions or requirements in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are
posted to the Servicer's obligor records maintained no more
than two business days after receipt, or such other number of
days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
--------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
unpaid principal balance.
--------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's
mortgage loans (e.g., loan modifications or re-agings) are
made, reviewed and approved by authorized personnel in
accordance with the transaction agreements and related pool
asset documents.
--------------------------------------------------------------------------------
Exh. [B]-3
--------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
--------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures
and repossessions, as applicable) are initiated, conducted
and concluded in accordance with the timeframes or other
requirements established by the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during
the period a mortgage loan is delinquent in accordance with
the transaction agreements. Such records are maintained on at
least a monthly basis, or such other period specified in the
transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling plans
in cases where delinquency is deemed temporary (e.g., illness
or unemployment).
--------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage
loans with variable rates are computed based on the related
mortgage loan documents.
--------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in accordance
with the obligor's mortgage loan documents, on at least an
annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid,
or credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such funds
are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number
of days specified in the transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related penalty
or expiration dates, as indicated on the appropriate bills or
notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior
to these dates, or such other number of days specified in the
transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to
be made on behalf of an obligor are paid from the servicer's
funds and not charged to the obligor, unless the late payment
was due to the obligor's error or omission.
--------------------------------------------------------------------------------
Exh. [B]-4
--------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
--------------------------------------------------------------------------------
Reference Criteria
--------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within
two business days to the obligor's records maintained by the
servicer, or such other number of days specified in the
transaction agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
--------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is
maintained as set forth in the transaction agreements.
--------------------------------------------------------------------------------
[NAME OF SERVICER] [SUBSERVICER]
Date:__________________________________
By:____________________________________
Name:
Title:
Exh. [B]-5