Contract
EXECUTION
This
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT dated as of October 1, 2007
(this “Agreement”),
is
among Xxxxxxx Xxxxx Mortgage Company (the “Assignor”),
GS
Mortgage Securities Corp. (the “Assignee”)
and
Avelo Mortgage, L.L.C. (the “Company”
or
the
“Servicer”).
For
and
in consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. 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 Schedule I (the “Conduit
Mortgage Loans”)
and,
solely insofar as they relate to the Conduit Mortgage Loans, (b) the Trade
Confirmation dated February 2, 2007, between GSMC and Just Mortgage, Inc.
(“Just
Mortgage”),
the
Trade Confirmation dated May 29, 2007, between GSMC and SCME Mortgage Bankers,
Inc. (“SCME”),
the
Trade Confirmation dated July 5, 2007, between GSMC and SCME, the Trade
Confirmation dated January 25, 2007, between GSMC and Loan Link Financial
Services (“Loan
Link”),
the
Trade Confirmation dated January 9, 2007, between GSMC and Residential Mortgage
Capital (“RMC”),
the
Trade Confirmation dated April 25, 2007, between GSMC and RMC, the Trade
Confirmation dated May 2, 2007, between GSMC and RMC, the Purchase Price
and
Terms Agreement dated December 4, 2006, between GSMC and Xxxx Financial,
LLC
(“Xxxx
Financial”),
the
Purchase Price and Terms Agreement dated April 23, 2007, between GSMC and
Xxxx
Financial, the Purchase Confirmation dated January 23, 2007, between GSMC
and
Quicken Loans, Inc. (“Quicken”),
the
Purchase Confirmation dated February 13, 2007, between GSMC and Quicken,
the
Purchase Confirmation dated February 26, 2007, between GSMC and Quicken and
the
Purchase Confirmation dated June 18, 2007, between GSMC and Quicken
(collectively, the “PPTL
Agreements”),
(c) the Master Mortgage Loan Purchase Agreement dated as of April 5, 2006,
between GSMC and Just Mortgage, the Master Mortgage Loan Purchase Agreement
dated as of September 23, 2004, between GSMC and SCME, the Master Mortgage
Loan
Purchase Agreement dated as of January 25, 2007, between GSMC and Loan Link,
the
Master Mortgage Loan Purchase Agreement dated as of November 26, 2004, between
GSMC and RMC, the Flow Mortgage Loan Purchase and Warranties Agreement dated
as
of May 1, 2006, as amended by Amendment No. 1 dated as of December 1, 2007,
between GSMC and Xxxx Financial and the Amended and Restated Seller’s Purchase,
Warranties and Interim Servicing Agreement dated as of June 1, 2006, between
GSMC and Quicken, as amended by Amendment No. 1 dated as of October 30, 2006
(collectively, the “Purchase
Agreements”)
and
(d) that certain Flow Servicing Agreement dated as of January 1, 2006 (the
“Servicing
Agreement”),
by
and between the Assignor (in such capacity, the “Owner”)
and
the Company.
The
Assignor hereby agrees that it will (i) deliver possession of notes
evidencing the Conduit 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 Conduit
Mortgage Loans as required under the Trust 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
Servicing Agreement that are not the Conduit Mortgage Loans set forth on
the
Mortgage Loan Schedule and are not the subject of this Agreement, (ii) any
rights and obligations of the Assignor pursuant to the Servicing Agreement
arising prior to the date hereof, (iii) the rights and obligations of the
Owner under Section 6.02 (a) (relating to the Owner’s right to terminate
the Company) of the Servicing Agreement,
Section 4.04 (relating to the Owner’s right to receive information from the
Servicer) of the Servicing Agreement, Section 11.13 (relating to the Owner’s
right to solicit Mortgagors) of the Servicing Agreement and any rights of
the
Assignor to indemnification under the Servicing Agreement, the Purchase
Agreements or the PPTL Agreements, or
(iv) any rights of the Assignor under the Notice Letter dated October 29,
2007 (the “Notice
Letter”),
between the Owner and the Company, which rights shall survive the execution
and
delivery of this Agreement.
The
Assignee hereby assumes all of the Assignor’s rights and obligations under the
Conduit Mortgage Loans, the PPTL Agreements and the Servicing Agreement solely
insofar as such obligations relate to the Conduit Mortgage Loans, other than
the
obligations set forth in clauses (ii), (iii) and (iv) of the preceding
paragraph.
The
parties hereto agree that (i) notwithstanding anything to the contrary contained
in the Notice Letter, with respect to the Conduit Mortgage Loans being serviced
under the Servicing Agreement, the Servicing Fee Rate for the Conduit Mortgage
Loans shall be the rate set forth on the Mortgage Loan Schedule and
(ii) notwithstanding anything to the contrary in the Servicing Agreement,
in the event the Servicer is obligated to make an advance pursuant to the
Servicing Agreement, the aggregate payment due shall be the minimum monthly
payment due under the mortgage note, net of servicing fees.
2. Recognition
of the Company
(a) From
and
after the date hereof (the “Securitization
Closing Date”),
the
Company shall and does hereby recognize that the Assignee will transfer the
Conduit Mortgage Loans (absent the servicing rights related thereto) and
assign
its rights under the PPTL Agreements, the Purchase Agreements and the Servicing
Agreement (solely to the extent set forth herein) and this Agreement to Deutsche
Bank National Trust Company, as trustee (including its successors in interest
and any successor trustees under the Trust Agreement, the “Trustee”),
of
the GSR Mortgage Loan Trust 2007-OA2 (the “Trust”)
created pursuant to a Master Servicing and Trust Agreement dated as of October
1, 2007 (the “Trust
Agreement”),
among
GS Mortgage Securities Corp., as Depositor, the Trustee, Xxxxx Fargo Bank,
N.A.,
as Securities Administrator and Master Servicer (in such capacity, the
“Master
Servicer”)
and
Deutsche Bank National Trust Company, as custodian (the “Custodian”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i) the Trustee will be the owner of the Conduit Mortgage Loans and the
Servicer will be the servicer of the Conduit Mortgage Loans on or after the
applicable Transfer Date pursuant to the terms set forth in the Trust Agreement,
(ii) the Company shall look solely to the Trustee (and the Master Servicer
acting on the Trustee’s behalf) for performance of any obligations of the
Assignor under the Conduit Mortgage Loans and the Servicing Agreement (solely
insofar as it relates to the Conduit Mortgage Loans) (except for such
obligations of the Assignor retained by the Assignor hereunder), (iii) the
Trustee (and the Master Servicer acting on the Trustee’s behalf) shall have all
the rights and remedies available to the Assignor, insofar as they relate
to the
Conduit Mortgage Loans, under the applicable Purchase Agreement, the PPTL
Agreements and the Servicing Agreement, including, without limitation, the
enforcement of the document delivery requirements set forth in the applicable
purchase agreement, and shall be entitled to enforce any and all of the
obligations of the Company thereunder insofar as they relate to the Conduit
Mortgage Loans, including without limitation, the remedies for breaches of
representations and warranties set forth in Article IX of the Servicing
Agreement (except for the rights and remedies retained by the Assignor
hereunder), (iv) all references to the Owner under the Servicing Agreement
insofar as they relate to the Conduit Mortgage Loans shall be deemed to refer
to
the Trustee (except to the extent of the rights and obligations retained
by the
Assignor hereunder) (including the Master Servicer acting on the Trustee’s
behalf) and (v) the Conduit Mortgage Loans will be part of a REMIC, and the
Company shall service the Conduit 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 Conduit 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, 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 Conduit Mortgage Loans
or
the Company’s performance under the Servicing Agreement with respect to the
Conduit Mortgage Loans without the prior written consent of the
Trustee.
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(b) From
and
after the date hereof, the Servicer shall note the transfer of the Conduit
Mortgage Loans to the Trustee in its books and records, shall recognize the
Trustee as the owner of the Conduit Mortgage Loans and shall service the
Conduit
Mortgage Loans for the benefit of the Trustee pursuant to the Servicing
Agreement, the terms of which are incorporated herein by reference.
(c) The
Servicer represents and warrants that (a) the copy of the Servicing
Agreement, attached hereto as Exhibit 1,
provided to the Assignee is a true, complete and accurate copy of the Servicing
Agreement, (b) the Servicing Agreement is in full force and effect as of
the date hereof, (c) the provisions thereof have not been waived, amended
or modified in any respect except as provided herein, nor have any notices
of
termination been given thereunder, and (d) the Servicer is servicing each
Conduit Mortgage Loan currently serviced under the Servicing Agreement pursuant
to the terms of the Servicing Agreement.
(d) The
Servicer further acknowledges that, from and after the date hereof, it (and
any
of its successors under the Servicing Agreement) will be subject to the
supervision of the Master Servicer and the Master Servicer, acting on behalf
of
the Trustee as the owner of the Conduit Mortgage Loans, shall have the same
rights as are assigned by Assignor to the Assignee under this Agreement,
and as
will be further assigned by the Assignee to the Trustee, on behalf of the
Trust.
Such rights that the Master Servicer may enforce will include, without
limitation, the right to terminate the Servicer 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 Servicer under the Servicing Agreement,
the right to receive all monthly reports and other data required to be delivered
by the Servicer under the Servicing Agreement and the right to exercise certain
rights of consent and approval relating to actions taken by the
Servicer.
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All
reports, notices and other written information required to be delivered to
the
Trustee, as the successor in interest to the Assignor and the Assignee under
the
Servicing Agreement, shall also be delivered to the Master Servicer or the
Trustee, as designated by the Trustee, at the address set forth in Section
9 of
the Assignment, Assumption and Recognition Agreement dated as of October
1,
2007, between the Assignee and the Trustee and acknowledged by the Master
Servicer. All remittances required to be made to the Trustee, as the successor
in interest to the Assignor under the Servicing Agreement, shall be made
instead
to the Master Servicer by wire transfer to the following account:
XXXXX
FARGO BANK, NA
ABA#
000000000
FOR
CREDIT TO: SAS CLEARING
ACCT:
0000000000
REFERENCE:
GSR 2007-OA2 Acct # 53181900
Notwithstanding
anything to the contrary in the Servicing Agreement, with respect to the
Conduit
Mortgage Loans, not later than the tenth calendar day of each month (or if
such
tenth calendar day is not a Business Day, the immediately succeeding Business
Day), the Servicer shall furnish to the Master Servicer (i)(a) monthly loan
data
in the format of Exhibit 2 or another mutually agreed-upon format, (b) default
loan data in the format set forth in Exhibit
3
hereto
(or in such other format mutually agreed upon between the Servicer and the
Master Servicer) and (c) information regarding the realized losses and gains
in
the format set forth in Exhibit
4
and
Exhibit
5
hereto
(or in such other format mutually agreed upon between the Servicer and the
Master Servicer), in each case relating to the period ending on the last
day of
the preceding calendar month, (ii) all such information required pursuant
to
clause (i)(a) above on a magnetic tape, electronic mail, or other similar
media
reasonably acceptable to the Master Servicer, and (iii) all supporting
documentation with respect to the information required under the preceding
paragraph.
(e) The
Company and the Assignor shall have the right to amend, modify or terminate
the
Servicing Agreement without the joinder of the Assignee with respect to mortgage
loans not conveyed to the Assignee hereunder, provided,
however,
that
such amendment, modification or termination shall not affect or be binding
on
the Assignee.
(f) The
Assignor hereby assigns to the Assignee, any rights of the Assignor with
respect
to early payment defaults or first payment defaults in the PPTL Agreements,
if
applicable, but only to the extent such provision relates to the Conduit
Mortgage Loans. The foregoing shall constitute the Assignor’s consent to the
assignment of the PPTL Agreements (to the extent required by the terms of
each
PPTL Agreement).
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(g) Notwithstanding
any provision of the PPTL Agreements to the contrary, in the event any Conduit
Mortgage Loan is repurchased pursuant to any early payment default or first
payment default provisions of the PPTL Agreements, the “Repurchase Price”
payable to the Assignee shall be an amount equal to the sum of: (a) the
outstanding principal balance of such Conduit Mortgage Loan as of the date
of
such repurchase, (b) accrued interest on such outstanding principal balance
at
the applicable Mortgage Interest Rate from the date interest was last paid
through the last day of the month in which such repurchase takes place, (c)
the
amount of any outstanding advances owed to the servicer, and (d) any reasonable
costs and expenses incurred by any servicer or by the Trustee, including
without
limitation costs and expenses incurred in the enforcement of the repurchase
obligation under the applicable PPTL Agreement. It is hereby understood that
the
right to any excess over such amount set forth in the definition of “Repurchase
Price” set forth in any PPTL Agreement is not being sold or assigned hereunder
and is being retained by the Assignor.
(h) The
Trust
(including the Trustee and the Master Servicer acting on the Trust’s behalf)
shall have all the rights and remedies available to the Assignor, insofar
as
they relate to the Conduit Mortgage Loans, under any early payment default
or
first payment default provisions of the PPTL Agreements including, without
limitation, the enforcement of the repurchase requirements set forth therein,
and shall be entitled to enforce all obligations of thereunder insofar as
they
relate to the Conduit Mortgage Loans unless otherwise stated in the Trust
Agreement.
3. Representations
and Warranties of the Company
The
Company warrants and represents to and covenants with, the Assignor, the
Assignee and the Trustee as of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its formation;
(b) 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 the Servicing Agreement. The execution by the Company of
this
Agreement is in the ordinary course of the Company’s business and 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;
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(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
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;
(d) The
Company shall establish a Custodial Account and an Escrow Account under the
Servicing Agreement in favor of the Trustee with respect to the Conduit Mortgage
Loans separate from the Custodial Account and Escrow Account previously
established under the Servicing Agreement in favor of the Assignor;
(e) 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 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 Servicing Agreement, and the Company
is
solvent;
(f) The
Company has serviced the Conduit Mortgage Loans currently serviced under
the
Servicing Agreement in accordance with the Servicing Agreement and has provided
accurate “paid through” data (assuming the correctness of all “paid through”
data provided by the Assignor to the Company at the time the Company began
servicing the Conduit Mortgage Loans) with respect to the Conduit Mortgage
Loans
to the Assignor;
(g) Except
as
reflected in the “paid through” data delivered to the Assignor (assuming the
correctness of all “paid through” data provided by the Assignor to the Company
at the time the Company began servicing the Conduit Mortgage Loans), there
is no
payment default existing under any Mortgage or any Mortgage Note as of the
Securitization Closing Date with respect to Conduit Mortgage Loans currently
serviced under the Servicing Agreement; and
(h) To
the
Company’s knowledge, there is no non-payment default existing under any Mortgage
or Mortgage Note currently serviced under the Servicing Agreement, or any
event
which, with the passage of time or with notice and the termination of any
grace
or cure period, would constitute a non-payment default, breach, violation
or
event which would permit acceleration as of the Securitization Closing Date.
4. Representations
and Warranties of the Assignor
The
Assignor warrants and represents to the Assignee and the Trustee as of date
hereof, unless otherwise stated below that:
(a) The
Assignor has been duly organized and is validly existing as a limited
partnership in good standing under the laws of the State of New York with
full
power and authority to enter into and perform its obligations under the
Agreements and this Agreement.
6
(b) This
Agreement has been duly executed and delivered by the Assignor, and, assuming
due authorization, execution and delivery by each of the other parties hereto,
constitutes a legal, valid, and binding agreement of the Assignor, enforceable
against it in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights
generally and to general principles of equity regardless of whether enforcement
is sought in a proceeding in equity or at law.
(c) The
execution, delivery and performance by the Assignor of this Agreement and
the
consummation of the transactions contemplated hereby do not require the consent
or approval of, the giving of notice to, the registration with or the taking
of
any other action in respect of, any state, federal or other governmental
authority or agency, except such as has been obtained, given, effected or
taken
prior to the date hereof.
(d) The
execution and delivery of this Agreement have been duly authorized by all
necessary action on the part of the Assignor; neither the execution and delivery
by the Assignor of this Agreement, nor the consummation by the Assignor of
the
transactions herein contemplated, nor compliance by the Assignor with the
provisions hereof will conflict with or result in a breach of, or constitute
a
default under, any of the provisions of the governing documents of the Assignor
or any law, governmental rule or regulation or any material judgment, decree
or
order binding on the Assignor or any of its properties, or any of the provisions
of any material indenture, mortgage, deed of trust, contract or other instrument
to which the Assignor is a party or by which it is bound.
(e) There
are
no actions, suits or proceedings pending or, to the knowledge of the Assignor,
threatened, before or by any court, administrative agency, arbitrator or
governmental body (i) with respect to any of the transactions contemplated
by
this Agreement or (ii) with respect to any other matter that in the judgment
of
the Assignor will be determined adversely to the Assignor and will, if
determined adversely to the Assignor, materially adversely affect its ability
to
perform its obligations under this Agreement.
(f) The
Assignor is the sole owner of record and holder of the Conduit Mortgage Loans
and the indebtedness evidenced by each Mortgage Note. The Conduit Mortgage
Loans
are not assigned or pledged, and the Assignor has good, indefeasible and
marketable title thereto, and has full right to transfer and sell the
Conduit Mortgage Loans to the Assignee free and clear of any encumbrance,
equity, participation interest, lien, pledge, charge, claim or security
interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign
each
Conduit Mortgage Loan pursuant to this Agreement and following the sale of
each
Conduit Mortgage Loan, the Assignee will own such Conduit 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 Conduit Mortgage Loans.
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(g) 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 Conduit Mortgage Loan
to be in default, nor has the Company waived any default resulting from any
action or inaction by the Mortgagor.
(h) Each
Conduit Mortgage Loan, at the time it was originated, complied in all material
respects with applicable local, state and federal laws, including, but not
limited to, all applicable predatory and abusive lending laws; and none of
the
Conduit Mortgage Loans are “high-cost,” “high-cost home” or “covered” loans
under any applicable federal, state or local predatory or abusive lending
law.
(i) No
Conduit Mortgage Loan is a High Cost Loan or Covered Loan, as applicable
(as
such terms are defined in the then current Standard & Poor’s
LEVELS®
Glossary,
Appendix E, in effect on October 1, 2007) and no Conduit Mortgage Loan
originated on or after October 1, 2002 through March 6, 2003 is governed
by the
Georgia Fair Lending Act.
For
the
purposes of this Section 4(i) the following definitions shall
apply:
Covered
Loan:
A
Mortgage Loan categorized as Covered pursuant to Appendix E of Standard &
Poor’s Glossary.
Home
Loan:
A
Mortgage Loan categorized as a Home Loan pursuant to Appendix E of Standard
& Poor’s Glossary.
Standard
& Poor’s Glossary:
The
Standard & Poor’s LEVELS® Glossary, as may be in effect from time to
time.
High
Cost Loan:
A
Mortgage Loan classified as (a) a “high cost” loan under the Home Ownership and
Equity Protection Act of 1994, (b) a “high cost home,” “threshold,” “covered,”
(excluding New Jersey “Covered Home Loans” as that term is defined in clause (1)
of the definition of that term in the New Jersey Home Ownership Security
Act of
2002), “high risk home,” “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) or (c) a Mortgage Loan categorized as High Cost pursuant
to
Appendix E of Standard & Poor’s Glossary. For avoidance of doubt, the
parties agree that this definition shall apply to any law regardless of whether
such law is presently, or in the future becomes, the subject of judicial
review
or litigation.
(j) Nothing
has occurred or failed to occur from and after the closing date set forth
in the
related Purchase Agreement to October 29, 2007, that would cause any of the
representations and warranties relating to the Conduit Mortgage Loans set
forth
in Section II.B.2. of the Xxxxxxx Xxxxx Mortgage Program Sellers Guide dated
as
of May 2006, as such may be amended by the related Purchase Agreement, to
be
incorrect in any material respects as of the date hereof as if made on the
date
hereof.
8
It
is
understood and agreed that the representations and warranties set forth in
this
Section 4 shall survive delivery of the respective Mortgage Files to the
Custodian
and
shall inure to the benefit of the Assignee and its assigns notwithstanding
any
restrictive or qualified endorsement or assignment. Upon the discovery by
the
Assignor or the Assignee and its assigns of a breach of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other parties to this Agreement, and in no event
later than two (2) Business Days from the date of such discovery. It is
understood and agreed that the obligations of the Assignor set forth in Section
5 to repurchase a Conduit Mortgage Loan constitute the sole remedies available
to the Assignee and its assigns on their behalf respecting a breach of the
representations and warranties contained in this Section 4. It is further
understood and agreed that the Assignor shall be deemed not to have made
the
representations and warranties in this Section 4 with respect to, or to the
extent of, the representations and warranties made, as to the matters covered
in
this Section 4, in any Purchase Agreement (or any officer’s certificate
delivered pursuant thereto).
It
is
understood and agreed that the Assignor has made no representations or
warranties to the Assignee other than those contained in this Section 4,
and no
other affiliate of the Assignor has made any representations or warranties
of
any kind to the Assignee.
5. Remedies
for Breach of Representations and Warranties of the Assignor
Upon
discovery or notice of any breach by the Assignor of any representation,
warranty, or covenant under this Agreement that materially and adversely
affects
the value of any Conduit Mortgage Loan or the interest of the Assignee therein
(it being understood that any such defect or breach shall be deemed to have
materially and adversely affected the value of the related Conduit Mortgage
Loan
or the interest of the Assignee therein if the Assignee incurs a loss as
a
result of such defect or breach), the Assignee promptly shall request that
the
Assignor cure such breach and, if the Assignor does not cure such breach
in all
material respects within 60 days from the date on which it is notified of
the
breach, the Assignee may enforce the Assignor’s obligation hereunder to purchase
such Conduit Mortgage Loan from the Assignee. Notwithstanding the foregoing,
however, if such breach is a Qualification Defect, such cure or repurchase
must
take place within 75 days of the discovery of such Qualification
Defect.
In
the
event the applicable originator has breached a representation or warranty
under
the applicable Purchase Agreement that is substantially identical to a
representation or warranty breached by the Assignor hereunder, the Assignee
shall first proceed against such originator as to such breach. If the applicable
originator does not within 60 days after notification of the breach, take
steps
to cure such breach (which may include certifying to progress made and
requesting an extension of the time to cure such breach, as permitted under
the
applicable Purchase Agreement) or repurchase, or substitute for, the affected
Conduit Mortgage Loan, the Trustee shall be entitled to enforce the obligations
of the Assignor hereunder to cure such breach or to repurchase such Conduit
Mortgage Loan from the Trust. In such event, the Assignor shall succeed to
the
rights of the Assignee to enforce the obligations of the applicable originator
to cure such breach or repurchase such Conduit Mortgage Loan under the terms
of
the applicable Purchase Agreement with respect to such Conduit Mortgage Loan.
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Except
as
specifically set forth herein, the Assignee shall have no responsibility
to
enforce any provision of this Agreement, to oversee compliance hereof, or
to
take notice of any breach or default thereof.
6. Representations
and Warranties of the Assignee.
(a) The
Assignee represents and warrants that it is a sophisticated investor able
to
evaluate the risks and merits of the transactions contemplated hereby, and
that
it has not relied in connection therewith upon any statements or representations
of the Assignor or the Servicer other than those contained in the Purchase
Agreements, the PPTL Agreements, the Servicing Agreement or this
Agreement.
(b) The
Assignee hereto represents and warrants that it is duly and legally authorized
to enter into this Agreement and to perform its obligations hereunder and
under
the Servicing Agreement.
(c) The
Assignee hereto represents and warrants that this Agreement has been duly
authorized, executed and delivered by it and (assuming due authorization,
execution and delivery thereof by each of the other parties hereto) constitutes
its legal, valid and binding obligation, enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles (regardless of whether
such
enforcement is considered in a proceeding in equity or at law).
7. Amendment
to Servicing Agreement.
In
connection with the transfer of the Conduit Mortgage Loans hereunder, the
Servicer agrees that, from and after the date hereof, each Conduit Mortgage
Loan
transferred hereunder will be subject to the Servicing Agreement, provided that,
solely
with respect to the Conduit Mortgage Loans transferred hereunder, the following
modifications shall be made:
(a) The
definition of “Annual Independent Public Accountants’ Servicing Report” is
hereby added:
““Annual
Independent Public Accountants’ Servicing Report”:
A
report of a firm of independent public accountants which is a member of the
American Institute of Certified Public Accountants to the effect that such
firm
has examined certain documents and records relating to the servicing of the
Mortgage Loans or mortgage loans similar in nature to the Mortgage Loans
by the
Servicer and that such firm is of the opinion that the provisions of this
Agreement or similar servicing agreements have been complied with, and that,
on
the basis of such examination conducted substantially in compliance with
the
Uniform Single Attestation Program for Mortgage Bankers, nothing has come
to the
attention of such firm which would indicate that such servicing has not been
conducted in compliance therewith, except (i) such exceptions such firm shall
believe to be immaterial, and (ii) such other exceptions as shall be set
forth
in such report. No Annual Independent Public Accountants’ Servicing Report shall
contain any provision restricting the use of such report by the Servicer,
including any prohibition on the inclusion of any such report in any filing
with
the Commission.”
10
(b) The
definition of Eligible
Investments
shall me
amended by adding the following at the end of the last paragraph:
“In
the
event the instrument is no longer acceptable to the Rating Agencies, the
funds
shall be transferred within 30 days to an Eligible Investment.”
(c) The
definition of Principal Payment Period shall be deleted and replaced as
follows:
“Principal
Prepayment Period:
As to
any remittance date, the period commencing on the 16th
day of
the month prior to the month in which such Remittance Date occurs and ending
on
the 15th
day of
the month in which such Remittance Date occurs.”
(d) The
definition of Qualified
Depository
shall be
deleted and replaced as follows:
“Qualified
Depository:
A
depository the accounts of which are acceptable to the Rating Agencies. In
the
event such depository is no longer acceptable to any such Rating Agency,
any
Escrow Accounts or Custodial Accounts established by the Servicer or any
Subservicer therein, as applicable, shall be transferred within 30 days to
a
Qualified Depository.”
(e) The
definition of Remittance
Date
shall be
deleted and replaced as follows:
“Remittance
Date:
With
respect to each Mortgage Loan, the 18th day of any month, or if such 18th
day is
not a Business Day, the preceding Business Day.”
(f) The
second paragraph of Section 2.01 shall be deleted and replaced as
follows:
“Subject
only to the Accepted Servicing Practices and the terms of this Agreement
and of
the respective Mortgage Loans, the Servicer shall have full power and authority
to do or cause to be done any and all things in connection with such servicing
and administration which it may deem necessary or desirable. Without limiting
the generality of the foregoing, the Servicer in its own name or in the name
of
the Owner, is hereby authorized and empowered by the Owner when the Servicer
believes it appropriate in its best judgment in accordance with Accepted
Servicing Practices, to execute and deliver any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge,
and
all other comparable instruments, with respect to the Mortgage Loans and
the
Mortgaged Properties and to institute foreclosure proceedings or obtain a
deed
in lieu of foreclosure so as to convert the ownership of such properties,
and to
hold or cause to be held title to such properties, in the name of the Servicer
on behalf of the Owner and without reference to the Owner except as otherwise
required by law. The Owner shall execute, at the written request of the
Servicer, and furnish to the Servicer such documents as are necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder, and the Owner hereby grants to the Servicer, and this
Agreement shall constitute, a power of attorney to carry out such duties
including a power of attorney to take title to Mortgaged Properties after
foreclosure on in the name of the Servicer on behalf of the Owner and without
reference to the Owner except as otherwise required by law. Except as otherwise
provided herein, the Owner shall not be liable for the actions of the Servicer
under such powers of attorney.
11
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
or
principal payments resulting from the application of the Servicemembers Civil
Relief Act or any similar state statutes or (B) as provided in Section 2.03,
if
the Mortgagor is in default with respect to the Mortgage Loan or such default
is, in the judgment of the Servicer, reasonably foreseeable, and provided,
in the
case of (A) or (B), the final maturity date of any Mortgage Loan shall not
be
extended beyond the Final Scheduled Distribution Date, as defined in the
Master
Servicing and Trust Agreement dated as of October 1, 2007 (the “Trust
Agreement”), among GS Mortgage Securities Corp., Xxxxx Fargo Bank, N.A. and
Deutsche Bank National Trust Company) or (ii) except as provided in Section
2.03, waive any prepayment penalty or premium.”
(g) Section
2.03 shall be deleted and replaced as follows:
“The
Servicer shall make reasonable efforts to collect all payments called for
under
the terms and provisions of the Mortgage Loans and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable insurance policies insuring the Mortgage Loan or the related
Mortgaged Property, follow such collection procedures as it would follow
with
respect to mortgage loans comparable to the Mortgage Loans and held for its
own
account. Consistent with the foregoing 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,
except
as provided below. In the event of any such arrangement pursuant to clause
(ii)
above, the Servicer shall make Monthly Advances on such Mortgage Loan during
such extension pursuant to Section 3.04 and in accordance with the amortization
12
schedule
of such Mortgage Loan without modification thereof by reason of such
arrangements; provided that the Servicer shall not be obligated to make Monthly
Advances which the Servicer determines to be 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 Accepted Servicing Practices, may also waive,
modify or vary any term of such Mortgage Loan (including modifications that
would change the Mortgage Interest Rate, forgive the payment of principal
or
interest, extend the final maturity date of such Mortgage Loan (provided,
that
the final maturity date of any Mortgage Loan shall not be extended beyond
the
Final Scheduled Distribution Date, as defined in the Trust Agreement), or
waive,
in whole or in part, a prepayment penalty or premium), accept payment from
the
related Mortgagor of an amount less than the outstanding 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”). The Servicer’s analysis supporting any Forbearance and
the conclusion that any Forbearance meets the Accepted Servicing Practices
shall
be reflected in writing in the Servicing File. Notwithstanding the foregoing,
a
Servicer may waive, in whole or in part, a prepayment penalty or premium
only
under the following circumstances: (i) such waiver relates to a default or
a
reasonably foreseeable default and would, in the reasonable judgment of the
Servicer, maximize recovery of total proceeds taking into account the value
of
such prepayment penalty or premium and the related Mortgage Loan, (ii) such
prepayment penalty or premium is not permitted to be collected by applicable
federal, state or local law or regulation, (iii) the collection of such
prepayment penalty or premium would be considered “predatory” pursuant to
written guidance published or issued by any applicable federal, state or
local
regulatory authority acting in its official capacity and having jurisdiction
over such matters, (iv) the enforceability thereof is limited (1) by bankruptcy,
insolvency, moratorium, receivership or other similar laws relating to
creditor’s rights generally or (2) due to acceleration in connection with a
foreclosure or other involuntary payment or (v) if the Servicer has not been
provided with information sufficient to enable it to collect the prepayment
penalty or premium. If a prepayment penalty or premium is waived other than
as
permitted in this Section 2.03, then the Servicer is required to pay the
amount
of such waived prepayment penalty or premium, by depositing such amount into
the
Collection Account as soon as possible after the date of payoff, but in no
event
later than five (5) Business Days from such date.”
(h)
Section
11.13 shall be deleted and replaced as follows:
“Section
11.13 Solicitation.
From
and after the related Transfer Date, the Servicer and the Owner agree that
the
Owner may take reasonable actions or permit or cause reasonable actions to
be
taken by its agents or affiliates (including the Servicer), or by any
independent contractors on the Owner’s behalf, to personally, by telephone or
mail, solicit the Mortgagor under any Mortgage Loan for any reasonable purpose,
including to refinance a Mortgage Loan, in whole or in part. It is understood
and agreed that all rights and benefits relating to the solicitation of any
Mortgagors and the attendant rights, title and interest in and to the list
of
such Mortgagors and data relating to their Mortgages (including insurance
renewal dates) shall be transferred to the Owner pursuant hereto on the related
Transfer Date and neither the Servicer nor the Owner shall take any action
to
undermine these rights and benefits. It is understood and agreed that promotions
undertaken by the Owner or any affiliate of the Owner (including the Servicer)
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. The Owner or any affiliate of
the
Owner (including the Servicer) may at its discretion implement general or
targeted programs to solicit certain mortgagors of the mortgage loans, including
the mortgage loans held by the issuing entity of a Securitization Transaction.
Such programs will not specifically target the mortgage loans held by the
issuing entity of a certain Securitization Transaction.”
13
(i) Section
12.05 shall be amended to include the following:
“(c) Notwithstanding
the foregoing provisions of Section 12.05, (i) in the event that during any
calendar year (or applicable portion thereof) the Servicer services 5% or
less
of the mortgage loans in a Securitization Transaction, as calculated by the
Master Servicer for such Securitization Transaction, or (ii) in any calendar
year in which an annual report on Form 10-K is not required to be filed with
respect to an issuing entity or Securitization Transaction, then, in each
such
event, the Servicer may, in lieu of providing an assessment of compliance
and
attestation thereon in accordance with Item 1122 of Regulation AB, provide
(and
cause each Subservicer and Subcontractor described in clause (a)(iii) above
to
provide) to the Depositor and the Master Servicer for such Securitization
Transaction, by not later than March 1 of such calendar year, an Annual
Independent Public Accountants’ Servicing Report. If the Servicer provides an
Annual Independent Public Accountants’ Servicing Report pursuant to this
subsection (c), then the certification required to be delivered by the Servicer
(and its Subservicers and Subcontractors) pursuant to clause (a)(iv) above
shall
be in the form of Exhibit 11 attached hereto instead of Exhibit 6.”
(j) Exhibit
7
of the Servicing Agreement (“Servicing Criteria to be Addressed in Assessment of
Compliance”) shall be replaced with Exhibit
6
hereto.
(k) Exhibit
7
attached hereto shall be added to the Servicing Agreement as Exhibit
11.
14
For
the
avoidance of doubt, the Servicing Agreement is not hereby amended with respect
to any other mortgage loans sold thereunder and shall remain in full force
and
effect in accordance with its terms with respect to such other mortgage
loans.
8. Miscellaneous.
(a) THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS,
RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
(b) 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.
(c) This
Agreement shall inure to the benefit of (i) the successors and assigns of
the parties hereto and (ii) the Trustee (including the Master Servicer
acting on the Trustee’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.
(d) Each
of
this Agreement, the PPTL Agreements and the Servicing Agreement shall survive
the conveyance of the Conduit Mortgage Loans to the Trustee and the assignment
of the applicable purchase agreement, the PPTL Agreements and the Servicing
Agreement (to the extent assigned hereunder) by the Assignor to the Assignee
and
by the Assignee to the Trustee and nothing contained herein shall supersede
or
amend the terms of the applicable purchase agreement, the PPTL Agreements
and
the Servicing Agreement.
(e) 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.
(f) In
the
event that any provision of this Agreement conflicts with any provision of
the
applicable purchase agreement, the PPTL Agreements or the Servicing Agreement
with respect to the Conduit Mortgage Loans, the terms of this Agreement shall
control.
(g) Capitalized
terms used in this Agreement (including the schedules hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the applicable
purchase agreement, the Servicing Agreement or the Trust Agreement, as
applicable.
9.
Third-Party
Beneficiary.
15
The
Master Servicer shall be considered a Third-Party Beneficiary to this Agreement
entitled to all rights and benefits hereof as if it were a direct party to
this
Agreement.
[SIGNATURE
PAGE FOLLOWS]
16
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: /s/
Xxxxxxxx Xxxx
Name:
Xxxxxxxx Xxxx
Title:
Vice President
XXXXXXX
XXXXX MORTGAGE
COMPANY,
a New York limited
partnership
By:
|
XXXXXXX
SACHS REAL ESTATE
FUNDING
CORP., a New York
corporation,
as General Partner
|
By:
/s/ Xxxxxxxx Xxxx
Name:
Xxxxxxxx Xxxx
Title:
Vice President
AVELO
MORTGAGE, L.L.C.
By:
/s/ J. Xxxxxx Xxxxxxx
Name:
J.
Xxxxxx Xxxxxxx
Title:
President
SCHEDULE
I
Mortgage
Loan Schedule
[To
be
retained in a separate closing binder entitled “GSR 2007-OA2 Conduit Mortgage
Loan
Schedule”
at the offices of XxXxx Xxxxxx LLP]
EXHIBIT
1
Servicing
Agreement
EXHIBIT
2
Standard
File Layout - Scheduled/Scheduled
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
Each
file requires the following fields:
|
|
|
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 20 digits
|
20
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
|
Text
up to 10 digits
|
10
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be
different
than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported
by the
Servicer.
|
4
|
Max
length of 6
|
6
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next
payment is
due to the Servicer, as reported by Servicer.
|
|
MM/DD/YYYY
|
10
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment amount.
|
|
MM/DD/YYYY
|
10
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|
Action
Code Key: 15=Bankruptcy, 00xXxxxxxxxxxx, ,
00xXXX,
63=Substitution, 65=Repurchase,70=REO
|
2
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
Plus
the following applicable fields:
|
|
|
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of
the cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a
processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the
current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for
the
current cycle as reported by the Servicer -- only applicable
for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for
the current
reporting cycle as reported by the Servicer -- only applicable
for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as
reported by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
BREACH_FLAG
|
Flag
to indicate if the repurchase of a loan is due to a breach of
Representations and Warranties
|
Y=Breach
N=NO
Breach
Let
blank if N/A
|
1
|
EXHIBIT
3
Standard
File Layout - Delinquency Reporting
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be
different
than the LOAN_NBR
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
|
CLIENT_NBR
|
Servicer
Client Number
|
||
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify
a group of
loans in their system.
|
|
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
||
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
||
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|
PROP_STATE
|
The
state where the property located.
|
|
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer
at the end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal,
Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
||
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions
to begin
foreclosure proceedings.
|
MM/DD/YYYY
|
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from
the
borrower.
|
MM/DD/YYYY
|
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
MM/DD/YYYY
|
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
MM/DD/YYYY
|
|
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
|
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
|
CURR_PROP_VAL
|
The
current "as is" value of the property based on brokers price
opinion or
appraisal.
|
2
|
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
If
applicable:
|
|
|
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
||
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a loan.
Code
indicates the reason why the loan is in default for this
cycle.
|
||
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
MM/DD/YYYY
|
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
MM/DD/YYYY
|
|
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
MM/DD/YYYY
|
|
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
FHA_PART_B_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part B Claim Payment
|
MM/DD/YYYY
|
|
FHA_PART_B_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part B Claim
|
2
|
No
commas(,) or dollar signs ($)
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
MOTION_FOR_RELIEF_DATE
|
The
date the Motion for Relief was filed
|
10
|
MM/DD/YYYY
|
FRCLSR_BID_AMT
|
The
foreclosure sale bid amount
|
11
|
No
commas(,) or dollar signs ($)
|
FRCLSR_SALE_TYPE
|
The
foreclosure sales results: REO, Third Party, Conveyance to
HUD/VA
|
|
|
REO_PROCEEDS
|
The
net proceeds from the sale of the REO property.
|
|
No
commas(,) or dollar signs ($)
|
BPO_DATE
|
The
date the BPO was done.
|
|
|
CURRENT_FICO
|
The
current FICO score
|
|
|
HAZARD_CLAIM_FILED_DATE
|
The
date the Hazard Claim was filed with the Hazard Insurance
Company.
|
10
|
MM/DD/YYYY
|
HAZARD_CLAIM_AMT
|
The
amount of the Hazard Insurance Claim filed.
|
11
|
No
commas(,) or dollar signs ($)
|
HAZARD_CLAIM_PAID_DATE
|
The
date the Hazard Insurance Company disbursed the claim
payment.
|
10
|
MM/DD/YYYY
|
HAZARD_CLAIM_PAID_AMT
|
The
amount the Hazard Insurance Company paid on the claim.
|
11
|
No
commas(,) or dollar signs ($)
|
ACTION_CODE
|
Indicates
loan status
|
Number
|
|
NOD_DATE
|
|
|
MM/DD/YYYY
|
NOI_DATE
|
|
|
MM/DD/YYYY
|
ACTUAL_PAYMENT_PLAN_START_DATE
|
|
|
MM/DD/YYYY
|
ACTUAL_PAYMENT_
PLAN_END_DATE
|
|
|
|
ACTUAL_REO_START_DATE
|
|
|
MM/DD/YYYY
|
REO_SALES_PRICE
|
|
|
Number
|
REALIZED_LOSS/GAIN
|
As
defined in the Servicing Agreement
|
|
Number
|
Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
· |
ASUM-
Approved
Assumption
|
· |
BAP-
Borrower
Assistance Program
|
· |
CO-
Charge
Off
|
· |
DIL-
Deed-in-Lieu
|
· |
FFA-
Formal
Forbearance Agreement
|
· |
MOD-
Loan
Modification
|
· |
PRE-
Pre-Sale
|
· |
SS-
Short
Sale
|
· |
MISC-
Anything
else approved by the PMI or Pool
Insurer
|
NOTE:
Xxxxx
Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply Xxxxx Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending
the
file.
The
Occupant
Code
field
should show the current status of the property code as follows:
·
|
Mortgagor
|
·
|
Tenant
|
·
|
Unknown
|
·
|
Vacant
|
The
Property
Condition
field
should show the last reported condition of the property as follows:
·
|
Damaged
|
·
|
Excellent
|
·
|
Fair
|
·
|
Gone
|
·
|
Good
|
·
|
Poor
|
·
|
Special
Hazard
|
·
|
Unknown
|
The
FNMA
Delinquent Reason Code
field
should show the Reason for Delinquency as follows:
Delinquency
Code
|
Delinquency
Description
|
001
|
FNMA-Death
of principal mortgagor
|
002
|
FNMA-Illness
of principal mortgagor
|
003
|
FNMA-Illness
of mortgagor’s family member
|
004
|
FNMA-Death
of mortgagor’s family member
|
005
|
FNMA-Marital
difficulties
|
006
|
FNMA-Curtailment
of income
|
007
|
FNMA-Excessive
Obligation
|
008
|
FNMA-Abandonment
of property
|
009
|
FNMA-Distant
employee transfer
|
011
|
FNMA-Property
problem
|
012
|
FNMA-Inability
to sell property
|
013
|
FNMA-Inability
to rent property
|
014
|
FNMA-Military
Service
|
015
|
FNMA-Other
|
016
|
FNMA-Unemployment
|
017
|
FNMA-Business
failure
|
019
|
FNMA-Casualty
loss
|
022
|
FNMA-Energy
environment costs
|
023
|
FNMA-Servicing
problems
|
026
|
FNMA-Payment
adjustment
|
027
|
FNMA-Payment
dispute
|
029
|
FNMA-Transfer
of ownership pending
|
030
|
FNMA-Fraud
|
031
|
FNMA-Unable
to contact borrower
|
INC
|
FNMA-Incarceration
|
The
FNMA
Delinquent Status Code
field
should show the Status of Default as follows:
Status
Code
|
Status
Description
|
09
|
Forbearance
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
24
|
Government
Seizure
|
26
|
Refinance
|
27
|
Assumption
|
28
|
Modification
|
29
|
Charge-Off
|
30
|
Third
Party Sale
|
31
|
Probate
|
32
|
Military
Indulgence
|
43
|
Foreclosure
Started
|
44
|
Deed-in-Lieu
Started
|
49
|
Assignment
Completed
|
61
|
Second
Lien Considerations
|
62
|
Veteran’s
Affairs-No Bid
|
63
|
Veteran’s
Affairs-Refund
|
64
|
Veteran’s
Affairs-Buydown
|
65
|
Chapter
7 Bankruptcy
|
66
|
Chapter
11 Bankruptcy
|
67
|
Chapter
13 Bankruptcy
|
EXHIBIT
4
Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
NOTE:
Do not net or combine items. Show all expenses individually and all credits
as
separate line items. Claim packages are due on the remittance report date.
Late
submissions may result in claims not being passed until the following month.
The
Servicer is responsible to remit all funds pending loss approval and /or
resolution of any disputed items.
The
numbers on the 332 form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
1.
|
The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation,
an Amortization Schedule from date of default through liquidation
breaking
out the net interest and servicing fees advanced is
required.
|
2.
|
The
Total Interest Due less the aggregate amount of servicing fee
that would
have been earned if all delinquent payments had been made as
agreed. For
documentation, an Amortization Schedule from date of default
through
liquidation breaking out the net interest and servicing fees
advanced is
required.
|
3.
|
Accrued
Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage
Loan as calculated on a monthly basis. For documentation, an
Amortization
Schedule from date of default through liquidation breaking out
the net
interest and servicing fees advanced is
required.
|
4-12.
|
Complete
as applicable. Required
documentation:
|
*
For
taxes and insurance advances - see page 2 of 332 form - breakdown required
showing period
of
coverage, base tax, interest, penalty. Advances prior to default require
evidence of servicer efforts to recover advances.
*
For
escrow advances - complete payment history
(to calculate advances from last positive escrow balance forward)
*
Other
expenses - copies of corporate advance history showing all payments
*
REO
repairs > $1500 require explanation
*
REO
repairs >$3000 require evidence of at least 2 bids.
*
Short
Sale or Charge Off require P&L supporting the decision and WFB’s approved
Officer Certificate
*
Unusual
or extraordinary items may require further documentation.
13. |
The
total of lines 1 through 12.
|
Credits:
14-21.
|
Complete
as applicable. Required
documentation:
|
*
Copy of
the HUD 1 from the REO sale. If a 3rd
Party
Sale, bid instructions and Escrow Agent / Attorney
Letter
of
Proceeds Breakdown.
*
Copy of
EOB for any MI or gov't guarantee
*
All
other credits need to be clearly defined on the 332 form
22.
|
The
total of lines 14 through 21.
|
Please
Note:
|
For
HUD/VA loans, use line (18a) for Part A/Initial proceeds and
line (18b)
for Part B/Supplemental proceeds.
|
Total
Realized Loss (or Amount of Any Gain)
23.
|
The
total derived from subtracting line 22 from 13. If the amount
represents a
realized gain, show
the amount in parenthesis ( ).
|
EXHIBIT
5
Calculation
of Realized Loss/Gain Form 332
XXXXX
FARGO BANK, N.A.
CALCULATION
OF REALIZED LOSS/GAIN
Prepared
by: __________________ Date:
_______________
Phone:
______________________ Email Address:_____________________
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
XXXXX
FARGO BANK, N.A. Loan No._____________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
Liquidation
Type:
REO Sale
3rd
Party Sale Short
Sale Charge
Off
Was
this loan granted a Bankruptcy deficiency or cramdown Yes
No
If
“Yes”,
provide deficiency or cramdown amount
_______________________________
Liquidation
and Acquisition Expenses:
(1)
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
$
______________
|
(1)
|
|
(2)
|
Interest
accrued at Net Rate
|
________________
|
(2)
|
|
(3)
|
Accrued
Servicing Fees
|
________________
|
(3)
|
|
(4)
|
Attorney's
Fees
|
________________
|
(4)
|
|
(5)
|
Taxes
(see page 2)
|
________________
|
(5)
|
|
(6)
|
Property
Maintenance
|
________________
|
(6)
|
|
(7)
|
MI/Hazard
Insurance Premiums (see page 2)
|
________________
|
(7)
|
|
(8)
|
Utility
Expenses
|
________________
|
(8)
|
|
(9)
|
Appraisal/BPO
|
________________
|
(9)
|
|
(10)
|
Property
Inspections
|
________________
|
(10)
|
|
(11)
|
FC
Costs/Other Legal Expenses
|
________________
|
(11)
|
|
(12)
|
Other
(itemize)
|
________________
|
(12)
|
|
Cash
for Keys__________________________
|
________________
|
(12)
|
||
HOA/Condo
Fees_______________________
|
________________
|
(12)
|
||
______________________________________
|
________________
|
(12)
|
||
Total
Expenses
|
$
_______________
|
(13)
|
Credits:
|
||||
(14)
|
Escrow
Balance
|
$
_______________
|
(14)
|
|
(15)
|
HIP
Refund
|
________________
|
(15)
|
|
(16)
|
Rental
Receipts
|
________________
|
(16)
|
|
(17)
|
Hazard
Loss Proceeds
|
________________
|
(17)
|
|
(18)
|
Primary
Mortgage Insurance / Gov’t Insurance
|
________________
|
(18a)
HUD Part A
|
|
________________
(18b) HUD Part B
|
||||
(19)
|
Pool
Insurance Proceeds
|
________________
|
(19)
|
|
(20)
|
Proceeds
from Sale of Acquired Property
|
________________
|
(20)
|
|
(21)
|
Other
(itemize)
|
________________
|
(21)
|
|
_________________________________________
|
________________
|
(21)
|
||
Total
Credits
|
$________________
|
(22)
|
||
Total
Realized Loss (or Amount of Gain)
|
$________________
|
(23)
|
Escrow
Disbursement Detail
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of
Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
EXHIBIT
6
Servicing
Criteria to be Addressed in Assessment of Compliance
The
assessment of compliance to be delivered by Avelo Mortgage, L.L.C. [insert
name
of Subservicer] shall address, at a minimum, the criteria identified 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
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
Reference
|
Criteria
|
|
|
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
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
Reference
|
Criteria
|
|
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.
|
|
|
|
|
EXHIBIT
7
EXHIBIT
11
FORM
OF
ANNUAL CERTIFICATION
Re:
|
The
[ ] agreement dated as of [ ], 200[ ] (the “Agreement”),
among [IDENTIFY PARTIES]
|
I,
________________________________, the _______________________ of Avelo
Mortgage,
L.L.C., certify to Xxxxxxx Xxxxx Mortgage Company, [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 Conduit 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; 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: