ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This
Assignment, Assumption and Recognition Agreement (this “AAR Agreement”) is made
and entered into as of April 28, 2006 (the “Closing Date”), among EMC Mortgage
Corporation (the “Assignor”), Citibank, N.A., not individually but solely as
trustee for the holders of SACO I Trust 2006-5, Mortgage Pass-Through
Certificates, Series 2006-5 (the “Assignee”) and GMAC Mortgage Corporation (the
“Company”).
Whereas,
the Assignor purchased mortgage loans from the Company (the “Mortgage Loans”)
pursuant to that certain Mortgage Loan Purchase Agreement, dated as of February
1, 2005, between the Assignor and the Company (the “MLPA”) and that certain
Assignment, Assumption and Recognition Agreement dated January 31, 2006 between
the Assignor, the Company and Alliance Bancorp. (the “Assignment Agreement”,
together with the MLPA, the “Purchase Agreement”);
Whereas,
the Assignor and the Company entered into that certain Servicing Agreement,
dated as of May 1, 2001, as amended by Amendment No. 1, dated as of October
1,
2001, Amendment No. 2, dated as of July 31, 2002 and Amendment No. 3, dated
as
of December 20, 2005 (as amended, the “Servicing Agreement”), pursuant to which
the Company agreed to service the Mortgage Loans.
In
consideration of the mutual promises and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties hereto agree that the Mortgage Loans listed
on
Attachment
1
annexed
hereto (the “Assigned Loans”) shall be subject to the terms of this AAR
Agreement. Any capitalized term used and not otherwise defined herein shall
have
the meaning assigned to such term in the Servicing Agreement.
Assignment
and Assumption
1. Except
as
expressly provided for herein, the Assignor hereby grants, transfers and assigns
to the Assignee all of its right, title and interest in, to and under (a) the
Assigned Loans and (b) as it relates to the Assigned Loans, the Servicing
Agreement. Notwithstanding anything to the contrary contained herein, the
Assignor is not assigning to the Assignee any of its right, title and interest
in, to and under the Servicing Agreement with respect to any other mortgage
loan
other than the Assigned Loans. Except as is otherwise expressly provided herein,
the Assignor makes no representations, warranties or covenants to the Assignee
and the Assignee acknowledges that the Assignor has no obligations to the
Assignee under the terms of the Servicing Agreement or otherwise relating to
the
transaction contemplated herein (including, but not limited to, any obligation
to indemnify the Assignee).
Assignor
acknowledges and agrees that upon execution of this AAR Agreement, the Assignee
shall become the “Owner” under the Servicing Agreement, and all representations,
warranties and covenants by the “Servicer” to the “Owner” under the Servicing
Agreement including, but not limited to, the rights to receive indemnification,
shall accrue to Assignee by virtue of this AAR Agreement.
Representations,
Warranties and Covenants
2. Assignor
warrants and represents to, and covenants with, Assignee and Company as of
the
date hereof that:
| a. |
Attached
hereto as Attachment
2
is
a true and correct copy of the Servicing Agreement, which Servicing
Agreement is in full force and effect as of the date hereof and the
provisions of which have not been waived, amended or modified in any
respect, nor has any notice of termination been given
thereunder;
|
| b. |
Assignor
is the lawful owner of the Assigned Loans with full right to transfer
the
Assigned Loans and any and all of its interests, rights and obligations
under the Servicing Agreement as they relate to the Assigned Loans,
free
and clear from any and all claims and encumbrances; and upon the transfer
of the Assigned Loans to Assignee as contemplated herein, Assignee
shall
have good title to each and every Assigned Loan, as well as any and
all of
Assignee’s interests, rights and obligations under the Servicing Agreement
as they relate to the Assigned Loans, free and clear of any and all
liens,
claims and encumbrances;
|
| c. |
There
are no offsets, counterclaims or other defenses available to the Company
with respect to the Assigned Loans, the Purchase Agreement or the
Servicing Agreement;
|
| d. |
Assignor
has no knowledge of, and has not received notice of, any waivers under,
or
any modification of, any Assigned Loan;
|
| e. |
Assignor
is duly organized, validly existing and in good standing under the
laws of
the jurisdiction of its incorporation, and has all requisite power
and
authority to acquire, own and sell the Assigned
Loans;
|
| f. |
Assignor
has full corporate power and authority to execute, deliver and perform
its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Assignor’s business and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of Assignor’s charter or by-laws or any legal
restriction, or any material agreement or instrument to which Assignor
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 Assignor
or its
property is subject. The execution, delivery and performance by Assignor
of this AAR Agreement and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary corporate
action on part of Assignor. This AAR Agreement has been duly executed
and
delivered by Assignor and, upon the due authorization, execution and
delivery by Assignee and the parties hereto, will constitute the valid
and
legally binding obligation of Assignor enforceable against Assignor
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;
and
|
| g. |
No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or
made by Assignor in connection with the execution, delivery or performance
by Assignor of this AAR Agreement, or the consummation by it of the
transactions contemplated hereby. Neither Assignor nor anyone acting
on
its behalf has offered, transferred, pledged, sold or otherwise disposed
of the Assigned Loans or any interest in the Assigned Loans, or solicited
any offer to buy or accept a transfer, pledge or other disposition
of the
Assigned Loans, or any interest in the Assigned Loans or otherwise
approached or negotiated with respect to the Assigned Loans, or any
interest in the Assigned Loans with any Person in any manner, or made
any
general solicitation by means of general advertising or in any other
manner, or taken any other action which would constitute a distribution
of
the Assigned Loans under the Securities Act of 1933, as amended (the
“1933
Act”)
or
which would render the disposition of the Assigned Loans a violation
of
Section 5 of the 1933 Act or require registration pursuant
thereto.
|
3. The
Assignee warrants and represents to, and covenants with, the Assignor and the
Company as of the date hereof that:
| a. |
Assignee
is duly organized, validly existing and in good standing under the
laws of
the jurisdiction of its organization and has all requisite power and
authority to hold the Assigned Loans as trustee on behalf of the holders
of SACO I Trust 2006-5, Mortgage Pass-Through Certificates, Series
2006-5;
|
| b. |
Assignee
has full corporate power and authority to execute, deliver and perform
under this AAR Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by this AAR
Agreement is in the ordinary course of Assignee’s business and will not
conflict with, or result in a breach of, any of the terms, conditions
or
provisions of Assignee’s charter or by-laws or any legal restriction, or
any material agreement or instrument to which Assignee 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 Assignee or its property
is
subject. The execution, delivery and performance by Assignee of this
AAR
Agreement and the consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary corporate action
on
part of Assignee. This AAR Agreement has been duly executed and delivered
by Assignee and, upon the due authorization, execution and delivery
by
Assignor and the parties hereto, will constitute the valid and legally
binding obligation of Assignee enforceable against Assignee 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;
|
| c. |
No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or
made by Assignee in connection with the execution, delivery or performance
by Assignee of this AAR Agreement, or the consummation by it of the
transactions contemplated hereby; and
|
| d. |
The
Assignee assumes all of the rights of the Owner under the Servicing
Agreement with respect to the Assigned Loans other than the right to
enforce the obligations of the Servicer under the Servicing
Agreement.
|
4. Company
warrants and represents to, and covenants with, Assignee and Assignor, as of
the
date hereof, that:
| a. |
Attached
hereto as Attachment
2
is
a true and correct copy of the Servicing Agreement, which agreement
is in
full force and effect as of the date hereof and the provisions of which
have not been waived, amended or modified in any respect, nor has any
notice of termination been given
thereunder;
|
| b. |
Company
is duly organized, validly existing and in good standing under the
laws of
the jurisdiction of its incorporation, and has all requisite power
and
authority to service the Assigned Loans and otherwise to perform its
obligations under the Servicing
Agreement;
|
| c. |
Company
has full corporate power and authority to execute, deliver and perform
its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Company’s business and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of Company’s articles of incorporation or any
legal restriction, or any material agreement or instrument to which
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 Company
or its property is subject. The execution, delivery and performance
by
Company of this AAR Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all
necessary corporate action on part of Company. This AAR Agreement has
been
duly executed and delivered by Company, and, upon the due authorization,
execution and delivery by Assignor and Assignee, will constitute the
valid
and legally binding obligation of Company, enforceable against 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;
|
| d. |
No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or
made by Company in connection with the execution, delivery or performance
by Company of this AAR Agreement, or the consummation by it of the
transactions contemplated hereby;
|
| e. |
Company
shall establish a Custodial Account and an Escrow Account under the
Servicing Agreement in favor of Assignee with respect to the Assigned
Loans separate from the Custodial Account and Escrow Account previously
established under the Servicing Agreement in favor of Assignor;
|
| f. |
Pursuant
to Section 10.02 of the Servicing Agreement, the Company hereby restates
the representations and warranties set forth in Article III of the
Servicing Agreement with respect to the Company and the Assigned Loans
as
of the date hereof; and
|
| g. |
Neither
this AAR Agreement nor any certification, statement, report or other
agreement, document or instrument furnished or to be furnished by the
Company pursuant to this AAR Agreement contains or will contain any
materially untrue statement of fact or omits or will omit to state
a fact
necessary to make the statements contained therein not
misleading.
|
5. Company
warrants and represents to, and covenants with, Assignor and Bear Xxxxxxx Asset
Backed Securities I LLC (“BSABS I”) as of the date hereof:
| a. |
Company
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
Company;
|
| b. |
No
material noncompliance with the applicable servicing criteria with
respect
to other securitizations of residential mortgage loans involving the
Company as servicer has been disclosed or reported by the
Company;
|
| c. |
Company
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;
|
| d. |
No
material changes to the Company’s policies or procedures with respect to
the servicing function it will perform under the Servicing Agreement
and
this AAR Agreement for mortgage loans of a type similar to the Assigned
Loans have occurred during the three-year period immediately preceding
the
date hereof;
|
| e. |
There
are no aspects of the Company’s financial condition that could have a
material adverse effect on the performance by the Company of its servicing
obligations under the Servicing Agreement and this AAR
Agreement;
|
| f. |
There
are no material legal or governmental proceedings pending (or known
to be
contemplated) against the Company, any Subservicer or any third-party
originator; and
|
| g. |
There
are no affiliations, relationships or transactions relating to the
Company
or any Subservicer with respect to this Securitization Transaction
and any
party thereto of a type described in Item 1119 of Regulation
AB.
|
Notwithstanding
anything to the contrary in the Agreement, the Company shall (or shall cause
any
Third-Party Originator to) (i) immediately notify Assignor and BSABS I in
writing of (A) legal proceedings pending against the Company, or proceedings
known to be contemplated by governmental authorities against the Company which
in the judgment of the Company would be, in each case, material to purchasers
of
securities backed by the Assigned Loans, (B) any affiliations or relationships
of the type described in Item 1119(b) of Regulation AB that develop following
the date hereof between the Company and any of the above listed parties or
other
parties identified in writing by the Assignor or BSABS I with respect to the
Securitization Transaction and (ii) provide to the Assignor and BSABS I a
description of such proceedings, affiliations or relationships.
Each
such
notice/update should be sent to the Assignor by e-mail to
xxxXXxxxxxxxxxxxxx@xxxx.xxx. Additionally, all such notifications, other than
those pursuant to (i)(A) above, should be sent to:
EMC
Mortgage Corporation
0000
Xxxx
Xxxxx Xxxxx
Xxxxxxxxxx,
XX 00000-0000
Attention:
Conduit Seller Approval Dept.
Facsimile:
(000) 000-0000
Email:
xxxxxxxxxxxxxx@xxxx.xxx
With
a
copy to:
Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx,
Xxxx, XX 00000
Attention:
Global Credit Administration
Facsimile:
(000) 000-0000
Notifications
pursuant to (i)(A) above should be sent to:
EMC
Mortgage Corporation
Two
Mac
Xxxxxx Xxxxx
000
Xxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attention:
Associate General Counsel for Loan Administration
Facsimile:
(000) 000-0000
With
copies to:
Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx,
Xxxx, XX 00000
Attention:
Global Credit Administration
Facsimile:
(000) 000-0000
EMC
Mortgage Corporation
0000
Xxxx
Xxxxx Xxxxx
Xxxxxxxxxx,
XX 00000-0000
Attention:
Conduit Seller Approval Dept.
Facsimile:
(000) 000-0000
Email:
xxxxxxxxxxxxxx@xxxx.xxx
6. Assignor
hereby agrees to indemnify and hold the Assignee (and its successors and
assigns) harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
fees
and expenses that Assignee (and its successors and assigns) may sustain in
any
way related to any breach of the representations or warranties of Assignor
set
forth in this AAR Agreement or the breach of any covenant or condition contained
herein.
7. It
is
expressly understood and agreed by the parties hereto that insofar as this
AAR
Agreement is executed on behalf of the Assignee (i) this AAR Agreement is
executed and delivered by Citibank, N.A., not in its individual capacity but
solely as trustee under the Pooling and Servicing Agreement, dated as of April
1, 2006 (the “Pooling and Servicing Agreement”), among the Assignor, BSABS I,
Citibank, N.A., as trustee and LaSalle Bank National Association as securities
administrator and master servicer, in the exercise of the powers and authority
conferred and vested in it, (ii) each of the representations, undertakings
and
agreements herein made on the part of the Assignee is made and intended not
as
representations, warranties, covenants, undertakings and agreements by Citibank,
N.A. in its individual capacity, but is made and intended for the purpose of
binding only the Assignee, (iii) under no circumstances shall Citibank, N.A.
in
its individual capacity be personally liable for the payment of any indebtedness
or expenses of the Assignee or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
Assignee under this AAR Agreement and (iv) any recourse against the Assignee
in
respect of any obligations it may have under or pursuant to the terms of this
AAR Agreement shall be limited solely to the assets it may hold as trustee
of
SACO I Trust 2006-5.
Recognition
of Assignee
8. From
and
after the date hereof, Company shall recognize Assignee as owner of the Assigned
Loans, and will service the Assigned Loans for Assignee as if Assignee and
Company had entered into a separate servicing agreement for the servicing of
the
Assigned Loans in the form of the Servicing Agreement (as modified herein),
the
terms of which are incorporated herein by reference. The Company acknowledges
that the Assigned Loans will be part of a REMIC, and will service the Assigned
Loans in accordance with the Servicing Agreement but in no event in a manner
that would (i) cause any REMIC to fail to qualify as a REMIC or (ii) result
in
the imposition of a tax upon any REMIC (including but not limited to the tax
on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax
on contributions to a REMIC set forth in Section 860G(d) of the Code). It is
the
intention of Assignor, Company and Assignee that this AAR Agreement shall be
binding upon and for the benefit of the respective successors and assigns of
the
parties hereto. Neither Company nor Assignor shall amend or agree to amend,
modify, waive, or otherwise alter any of the terms or provisions of the
Servicing Agreement which amendment, modification, waiver or other alteration
would in any way affect the Assigned Loans without the prior written consent
of
Assignee.
The
Servicer shall indemnify and hold harmless each of the Owner, any Depositor
and
any Master Servicer 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 obligations of the Servicer under
Sections 6.04, 6.09, 10.02 or 11.16 or the Servicer’s negligence, bad faith or
willful misconduct in connection therewith. In addition, the Servicer shall
indemnify and hold harmless each of the Owner, any Depositor and any Master
Servicer and their 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 (i) any untrue statement or alleged untrue statement of any material
fact contained in any Back-Up Certification, the Annual Statement of Compliance,
the Assessment of Compliance, any Attestation Report or any other information
provided by or on behalf of the Servicer or on behalf of any subservicer or
subcontractor of the Servicer pursuant to Sections 6.04, 6.09, 10.02 or 11.16
(the “Servicer Information”), or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein, in light of the circumstances in which they were made,
not
misleading.
Modification
of Servicing Agreement
9. The
Company and Assignor hereby amend the Servicing Agreement as
follows:
| (a) |
The
following definitions are added to Article I of the Servicing
Agreement:
|
Assignee:
Citibank, N.A, as trustee for the holders of SACO I Trust 2006-5, Mortgage
Pass-Through Certificates, Series 2006-5.
Master
Servicer:
LaSalle
Bank National Association, or its successors in interest who meet the
qualifications of the Pooling and Servicing Agreement and this
Agreement.
Pooling
and Servicing Agreement:
That
certain pooling and servicing agreement, dated as of April 1, 2006, among Bear
Xxxxxxx Asset Backed Securities I LLC, the Trustee, LaSalle Bank National
Association. as securities administrator, the Master Servicer and the
Owner.
Trustee:
Citibank, N.A, or its successor in interest, or any successor trustee appointed
as provided in the Pooling and Servicing Agreement.
| (b) |
The
definition of “Business Day” is deleted in its entirety and replaced with
the following:
|
Business
Day:
Any day
other than: (i) a Saturday or Sunday, or (ii) a legal holiday in the States
of
New York, Iowa, Illinois, Minnesota or the Commonwealth of Pennsylvania or
(iii)
a day on which banks in the States of New York, Iowa, Illinois, Minnesota or
the
Commonwealth of Pennsylvania are authorized or obligated by law or executive
order to be closed.
| (c) |
The
definition of “Custodian” is deleted in its entirety and replaced with the
following:
|
Custodian:
LaSalle
Bank National Association.
| (d) |
The
definition of Qualified Depository is deleted in its entirety and replaced
with the following:
|
Qualified
Depository:
A
separate and segregated account established with a depository, the accounts
of
which are insured by the FDIC through BIF or the SAIF and the short term debt
ratings of which are rated in the highest rating category by Standard &
Poor's Rating Services, a division of The XxXxxx-Xxxx Companies Inc., Xxxxx'x
Investors Services, Inc., or Fitch, Inc.
| (e) |
Section
6.04 of the Servicing Agreement is hereby deleted in its entirety and
replaced with the following:
|
Section
6.04 Annual
Statement as to Compliance; Annual Certification.
(a) The
Servicer will deliver to the Owner and any Master Servicer, using its best
efforts to deliver on March 1, but in no event later than March 15, of each
calendar year beginning in 2007, an Officers’ Certificate acceptable to the
Owner (an “Annual Statement of Compliance”) stating, as to each signatory
thereof, that (i) a review of the activities of the Servicer during the
preceding calendar year and of performance under this Agreement or other
applicable servicing 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 or other
applicable servicing agreement in all material respects throughout such year,
or, if there has been a failure to fulfill any such obligation in any material
respect, specifying each such failure known to such officer and the nature
and
status of cure provisions thereof. Such Annual Statement of Compliance shall
contain no restrictions or limitations on its use.
(b) With
respect to any Mortgage Loans that are the subject of a Pass-Through Transfer,
using its best efforts to deliver on March 1, but in no event later than March
15, of each calendar year beginning in 2007, an officer of the Servicer shall
execute and deliver an Officers’ Certificate (an “Annual Certification”) to the
Owner, any Master Servicer and any related Depositor for the benefit of each
such entity and such entity’s affiliates and the officers, directors and agents
of any such entity and such entity’s affiliates, in the form attached hereto as
Exhibit H.
With
respect to any Mortgage Loans that are the subject of a Pass-Through Transfer
that is subject to the reporting requirements of the Exchange Act, in the event
that the Servicer fails to timely comply with this Section 6.04 after March
15th
of the related year, the Depositor of such Pass-Through Transfer shall use
its
commercially reasonable efforts to obtain written or verbal statements or
assurances from the Commission, by March 30th of the related year (or such
extension of time granted by the Commission so that it can review the facts
surrounding any requests made by the Depositor) that such failure to provide
the
required Annual Statement of Compliance on a timely basis, and a one time
additional failure by the Servicer to comply with this Section 6.04, will not
result in any adverse effect on the Depositor or its affiliates with respect
to
any Shelf Registration on Form S-3 of the Depositor or any of its affiliates.
Any costs or expenses incurred by the Depositor in obtaining such statement
or
assurances from the Commission shall be reimbursed to the Depositor by the
Servicer. In the event that the Depositor is unable to receive any such
assurances from the Commission after the use of such commercially reasonable
efforts by March 30th (or any extension period granted by the Commission) of
the
related year, such failure by the Servicer to comply with this Section 6.04
shall be deemed an Event of Default, automatically at such time, without notice
and without any cure period, and the Depositor or any Master Servicer may,
in
addition to whatever rights the Depositor or any Master Servicer may have under
Section 8.01, subject to the limitation expressed therein, and at law or equity
or to damages, including injunctive relief and specific performance, terminate
all the rights and obligations of the Servicer under this Agreement and in
and
to the Mortgage
Loans
and the proceeds thereof without compensating the Servicer for the same, as
provided in Section 9.01 . Such termination shall be considered with cause
pursuant to Section 10.01 of this Agreement. This paragraph shall supersede
any
other provision in this Agreement or any other agreement to the
contrary.
Failure
to provide the Annual Statement of Compliance or Annual Certification within
the
required timeframes set forth herein will be treated as a failure of the
Servicer to perform its duties under the Agreement and will be subject to the
indemnification provisions of Section 8.01, subject to the limitation expressed
therein, of the Agreement. This indemnification is understood by the parties
hereto to cover any gross negligence, bad faith or willful misconduct of the
Servicer in connection with its performance hereunder. For any indemnification
from the Servicer to any Master Servicer, the Servicer in no event will be
liable for punitive or consequential damages, regardless of the form of action,
whether in contract, tort or otherwise.
If
the
indemnification provided for therein is unavailable or insufficient to hold
harmless the Owner, each affiliate of the Owner, and each of the following
parties participating in a Pass-Through Transfer: each sponsor and issuing
entity; each Person (including, but not limited to, any Master Servicer, if
applicable) responsible for the preparation, execution or filing of any report
required to be filed with the Commission with respect to such Pass-Through
Transfer, 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 Pass-Through Transfer;
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);
and the respective present and former directors, officers, employees, agents
and
affiliates of each of the foregoing and of the Depositor (each, an “Indemnified
Party”), then the Servicer agrees that it shall contribute to the amount paid or
payable by such Indemnified Party as a result of any claims, losses, damages
or
liabilities incurred by such Indemnified Party in such proportion as is
appropriate to reflect the relative fault of such Indemnified Party on the
one
hand and the Servicer on the other.
In
the
case of any failure of performance described above, the Servicer shall promptly
reimburse the Owner, any Depositor, as applicable, and each Person responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction, for all costs
reasonably incurred by each such party in order to obtain the information,
report, certification, accountants’ letter or other material not delivered as
required by the Servicer, any Subservicer or any Subcontractor.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
| (f) |
The
fifth and sixth paragraphs of Section 6.09 of the Servicing Agreement
are
deleted in its entirety and replaced with the
following:
|
With
respect to any Mortgage Loans that are the subject of a Pass-Through Transfer
that is subject to the reporting requirements of the Exchange Act, in the event
that the Servicer fails to timely comply with this Section 6.10 by March 15th
of
the related year, the Owner shall use its commercially reasonable efforts to
obtain written or verbal statements or assurances from the Commission, by March
30th of the related year (or such extension of time granted by the Commission
so
that it can review the facts surrounding any requests made by the Depositor)
that such failure to provide the required Assessment of Compliance and
Attestation Report on a timely basis, and a one time additional failure by
the
Servicer to comply with this Section 6.10, will not result in any adverse effect
on the Depositor or its affiliates with respect to any Shelf Registration on
Form S-3 of the Depositor or any of its affiliates. Any costs or expenses
incurred by the Depositor in obtaining such statement or assurances from the
Commission shall be reimbursed to the Depositor by the Servicer. In the event
that the Depositor is unable to receive any such assurances from the Commission
after the use of such commercially reasonable efforts by March 30th (or any
extension period granted by the Commission) of the related year, such failure
by
the Servicer to comply with this Section 6.10 shall be deemed an Event of
Default, automatically at such time, without notice and without any cure period,
and the Depositor or any Master Servicer may, in addition to whatever rights
the
Depositor or any Master Servicer may have under Section 8.01, subject to the
limitation expressed therein, and at law or equity or to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of the Servicer under this Agreement and in and to the Mortgage
Loans and the proceeds thereof without compensating the Servicer for the same,
as provided in Section 9.01 . Such termination shall be considered with cause
pursuant to Section 10.01 of this Agreement. This paragraph shall supersede
any
other provision in this Agreement or any other agreement to the
contrary.
Failure
to provide the Assessment of Compliance or Attestation Report within the
required timeframes set forth herein will be treated as a failure of the
Servicer to perform its duties under the Agreement and will be subject to the
indemnification provisions of Section 8.01, subject to the limitation expressed
therein, of the Agreement. This indemnification is understood by the parties
hereto to cover any gross negligence bad faith or willful misconduct of the
Servicer in connection with its performance hereunder. For any indemnification
from the Servicer to any Master Servicer, the Servicer in no event will be
liable for punitive or consequential damages, regardless of the form of action,
whether in contract, tort or otherwise.
| (g) |
The
last five paragraphs of Section 10.02 of the Servicing Agreement are
hereby deleted and replaced with the
following:
|
As
a
condition to the succession to the Servicer or any Subservicer as servicer
or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Servicer or such Subservicer may be merged or consolidated,
or (ii) which may be appointed as a successor to the Servicer or any
Subservicer, the Servicer shall provide to the Owner, any Master Servicer,
and
any Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Owner, any Master Servicer
and any Depositor of such succession or appointment and (y) in writing and
in
form and substance reasonably satisfactory to the Owner, any Master Servicer
and
such Depositor, all information reasonably requested by the Owner, any Master
Servicer or any Depositor in order to comply with its reporting obligation
under
Item 6.02 of Form 8-K with respect to any class of asset-backed securities;
In
addition to such information as the Servicer is obligated to provide pursuant
to
other provisions of this Agreement, not later than ten days prior to the
deadline for the filing of any distribution report on Form 10-D in respect
of
any Securitization Transaction that includes any of the Mortgage Loans serviced
by the Servicer or any Subservicer, the Servicer or such Subservicer, as
applicable, shall, to the extent the Servicer or such Subservicer has knowledge,
provide to the party responsible for filing such report (including, if
applicable, the Master Servicer) notice of the occurrence of any of the
following events along with all information, data, and materials related thereto
as may be required to be included in the related distribution report on Form
10-D (as specified in the provisions of Regulation AB referenced
below):
(A) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the Collection Period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(B) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(C) information
regarding new asset-backed securities issuances backed by the same pool assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation AB);
and
The
Servicer shall provide to the Owner, any Master Servicer and any Depositor,
evidence of the authorization of the person signing any certification or
statement, copies or other evidence of Fidelity Bond Insurance and Errors and
Omission Insurance policy, financial information and reports, and such other
information related to the Servicer or any Subservicer or the Servicer or such
Subservicer’s performance hereunder.
Notwithstanding
the foregoing, the Servicer shall be under no obligation to provide information
that the Owner deems required under Regulation AB if (i) the Servicer does
not
reasonably believe that such information is required under Regulation AB and
(ii) the Servicer is not providing such information for (A) its own
securitizations, or (B) any third party securitizations with loans serviced
by
the Servicer, unless the Owner pays all reasonable actual costs incurred by
the
Servicer in connection with the preparation and delivery of such information
and
the Servicer is given reasonable time to establish the necessary systems and
procedures to produce such information; provided, however, that the costs
incurred by the Servicer in connection with establishing the necessary systems
and procedures will be split pro rata with any other purchaser that makes a
request for similar information.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to, and serviced in accordance with the terms of, this Agreement and
the
related Term Sheet, and with respect thereto this Agreement and the related
Term
Sheet shall remain in full force and effect.
| (h) |
Exhibit
F and Exhibit J in the Servicing Agreement shall be modified by deleting
the words “Xxxxx Fargo Bank”, “WFB” and “Xxxxx Fargo Bank, N.A.” and
replacing them with “LaSalle Bank National
Association”.
|
| (i) |
Exhibit
G of the Servicing Agreement is deleted in its entirety and replaced
with
the following:
|
EXHIBIT
G
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing 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.
|
x
|
|
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.
|
x
|
|
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.
|
x
|
|
|
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.
|
x
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
x
|
|
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.
|
x
|
|
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.
|
x
|
|
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.
|
x
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
x
|
|
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.
|
x
|
|
|
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.
|
x
|
|
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.
|
x
|
|
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.
|
x
|
|
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.
|
x
|
|
|
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.
|
x
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
x
|
|
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.
|
x
|
|
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.
|
x
|
|
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.
|
x
|
|
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.
|
x
|
|
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.
|
x
|
|
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).
|
x
|
|
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.
|
x
|
|
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.
|
x
|
|
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.
|
x
|
|
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.
|
x
|
|
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.
|
x
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
x
|
|
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
COMPANY] [NAME OF SUBSERVICER]
Date: _________________________
By: _________________________
Name:
Title:
Miscellaneous
10. All
demands, notices and communications related to the Assigned Loans, the Servicing
Agreement and this AAR Agreement shall be in writing and shall be deemed to
have
been duly given if personally delivered at or mailed by registered mail, postage
prepaid, as follows:
| a. |
In
the case of Company,
|
GMAC
Mortgage Corporation
000
Xxxxxxxxxx Xxxx
Xxxxxxx,
Xxxxxxxxxxxx 00000
Attention:
Xx. Xxxxx Xxxx
Telecopier
No.: (000) 000-0000
| b. |
In
the case of Assignor,
|
EMC
Mortgage Corporation
Mac
Xxxxxx Xxxxx XX
000
Xxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention:
Xx. Xxxxxx Xxxxx
Telecopier
No.: (000) 000-0000
| c. |
In
the case of Assignee,
|
Citibank,
N.A., as Trustee
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx
Xxxx 00000
Attention:
SACO 2006-5
Telecopier
No.: (000) 000-0000
11. The
Company hereby acknowledges that LaSalle Bank National Association (the “Master
Servicer”) has been appointed as the master servicer of the Assigned Loans
pursuant to the Pooling and Servicing Agreement, dated as of April 1, 2006,
among the Assignor, the Assignee, BSABS I, LaSalle Bank National Association
as
securities administrator and the Master Servicer, and therefor has the right
to
enforce all obligations of the Company, as they relate to the Assigned Loans,
under the Servicing Agreement. Such right will include, without limitation,
the
right to terminate the Company under the Servicing Agreement upon the occurrence
of an event of default thereunder, the right to receive all remittances required
to be made by the Company under the Servicing Agreement, the right to receive
all monthly reports and other data required to be delivered by the Company
under
the Servicing Agreement, the right to examine the books and records of the
Company, indemnification rights, and the right to exercise certain rights of
consent and approval relating to actions taken by the Company. The Company
shall
make all distributions under the Servicing Agreement, as they relate to the
Assigned Loans, to the Master Servicer by wire transfer of immediately available
funds to:
LaSalle
Bank National Association
ABA#
000000000
Account
#
723658.1
Attn:
Xxxxxx Xxxxxx
and
the
Company shall deliver all reports required to be delivered under the Servicing
Agreement, as they relate to the Assigned Loans, to the Assignee at the address
set forth in Section 10 herein and to the Master Servicer at:
LaSalle
Bank National Association
000
X.
XxXxxxx Xx., Xxxxx 0000
Xxxxxxx,
XX 00000
Attention:
Global Securities and Trust Services Group- SACO 2006-5
12. THIS
AAR
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.
13. No
term
or provision of this AAR 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.
14. This
AAR
Agreement shall inure to the benefit of the successors and assigns of the
parties hereto. Any entity into which 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.
15. This
AAR
Agreement shall survive the conveyance of the Assigned Loans, the assignment
of
the Servicing Agreement to the extent of the Assigned Loans by Assignor to
Assignee and the termination of the Servicing Agreement and the Purchase
Agreement.
16. This
AAR
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.
17. In
the
event that any provision of this AAR Agreement conflicts with any provision
of
the Servicing Agreement with respect to the Assigned Loans, the terms of this
AAR Agreement shall control.
[TPW:
NYLEGAL:494004.9] 17297-00440 05/15/2006 11:58 AM
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
|
EMC
MORTAGE CORPORATION,
the
Assignor
|
CITIBANK,
N.A, not individually but solely as trustee for the holders of SACO
I
Trust 2006-5, Mortgage Pass-Through Certificates, Series
2006-5,
|
|
|
the
Assignee
|
||
|
By: _
|
By:
|
|
|
Name:
Title:
|
Name:_________________________
Title:
__________________
|
|
|
GMAC
MORTGAGE CORPORATION,
the
Company
|
||
|
By:
|
||
|
Name:
Title:
__________________________
|
||
Acknowledged
and Agreed
|
LASALLE
BANK
NATIONAL
ASSOCIATION
the
Master Servicer
|
|
By:
|
|
Name: _______
|
|
Title:
____________
BEAR
XXXXXXX ASSET BACKED
SECURITIES
I LLC
By:
Name: _______
Title:
____________
|
[TPW:
NYLEGAL:494004.9] 17297-00440 05/15/2006 11:58 AM
ATTACHMENT
1
ASSIGNED
LOANS
[TPW:
NYLEGAL:494004.9] 17297-00440 05/15/2006 11:58 AM
ATTACHMENT
2
SERVICING
AGREEMENT
