OPTION ONE MORTGAGE CORPORATION, as Servicer and AURORA LOAN SERVICES LLC, as Master Servicer and LEHMAN BROTHERS HOLDINGS INC., as Seller Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2006-BC6 SUBSERVICING...
EXECUTION
OPTION
ONE MORTGAGE CORPORATION,
as
Servicer
and
AURORA
LOAN SERVICES LLC,
as
Master
Servicer
and
XXXXXX
BROTHERS HOLDINGS INC.,
as
Seller
_____________________________
Structured
Asset Securities Corporation
Mortgage
Pass-Through Certificates, Series 2006-BC6
Dated
as
of December 1, 2006
_____________________________
Table
of
Contents
Page
ARTICLE
I. DEFINITIONS
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3
|
|
ARTICLE
II. SELLER’S ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
|
15
|
|
Section
2.01
|
Contract
for Servicing; Possession of Servicing Files.
|
15
|
Section
2.02
|
Books
and Records.
|
16
|
ARTICLE
III. SERVICING OF THE MORTGAGE LOANS
|
17
|
|
Section
3.01
|
Servicer
to Service.
|
17
|
Section
3.02
|
Collection
of Mortgage Loan Payments.
|
19
|
Section
3.03
|
Establishment
of and Deposits to Custodial Accounts.
|
19
|
Section
3.04
|
Permitted
Withdrawals From Custodial Account.
|
21
|
Section
3.05
|
Establishment
of and Deposits to Escrow Account.
|
23
|
Section
3.06
|
Permitted
Withdrawals From Escrow Account.
|
23
|
Section
3.07
|
Restoration
of Mortgaged Property.
|
24
|
Section
3.08
|
Fidelity
Bond and Errors and Omissions Insurance.
|
25
|
Section
3.09
|
Notification
of Adjustments.
|
25
|
Section
3.10
|
Payment
of Taxes, Insurance and Other Charges.
|
26
|
Section
3.11
|
Protection
of Accounts.
|
26
|
Section
3.12
|
Title,
Management and Disposition of REO Property.
|
27
|
Section
3.13
|
Real
Estate Owned Reports.
|
29
|
Section
3.14
|
MERS.
|
29
|
Section
3.15
|
Waiver
of Prepayment Charges.
|
30
|
Section
3.16
|
Servicing
and Administration of PMI Policies.
|
30
|
Section
3.17
|
Maintenance
of Hazard Insurance.
|
31
|
Section
3.18
|
Realization
Upon Defaulted Mortgage Loans.
|
32
|
Section
3.19
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreement.
|
33
|
Section
3.20
|
Safeguarding
Customer Information.
|
34
|
ARTICLE
IV. PAYMENTS TO MASTER SERVICER
|
34
|
|
Section
4.01
|
Remittances.
|
34
|
Section
4.02
|
Statements
to Master Servicer.
|
35
|
Section
4.03
|
Monthly
Advances by Servicer.
|
36
|
Section
4.04
|
Compensating
Interest.
|
38
|
Section
4.05
|
Credit
Reporting.
|
38
|
ARTICLE
V. GENERAL SERVICING PROCEDURES
|
38
|
|
Section
5.01
|
Servicing
Compensation; Seller Remittance Amount.
|
38
|
Section
5.02
|
Report
on Attestation of Compliance with Applicable Servicing
Criteria.
|
39
|
Section
5.03
|
Annual
Officer’s Certificate.
|
39
|
Section
5.04
|
Report
on Assessment of Compliance with Applicable Servicing
Criteria.
|
40
|
ARTICLE
VI. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS
|
41
|
|
Section
6.01
|
Representations,
Warranties and Agreements of the Servicer.
|
41
|
i
Section
6.02
|
Remedies
for Breach of Representations and Warranties of the
Servicer.
|
42
|
Section
6.03
|
Additional
Indemnification by the Servicer; Third Party Claims.
|
44
|
Section
6.04
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
44
|
Section
6.05
|
Reporting
Requirements of the Commission and Indemnification.
|
44
|
ARTICLE
VII. THE SERVICER
|
46
|
|
Section
7.01
|
Merger
or Consolidation of the Servicer.
|
46
|
Section
7.02
|
Limitation
on Liability of the Servicer and Others.
|
47
|
Section
7.03
|
Limitation
on Resignation and Assignment by the Servicer.
|
47
|
Section
7.04
|
Subservicing
Agreements and Successor Subservicer.
|
48
|
Section
7.05
|
Inspection.
|
48
|
ARTICLE
VIII. TERMINATION
|
50
|
|
Section
8.01
|
Termination
for Cause.
|
50
|
Section
8.02
|
Termination
Without Cause.
|
52
|
Section
8.03
|
Termination
for Distressed Mortgage Loans.
|
53
|
ARTICLE
IX. MISCELLANEOUS PROVISIONS
|
54
|
|
Section
9.01
|
Successor
to the Servicer.
|
54
|
Section
9.02
|
Costs.
|
56
|
Section
9.03
|
Notices.
|
56
|
Section
9.04
|
Severability
Clause.
|
58
|
Section
9.05
|
No
Personal Solicitation.
|
58
|
Section
9.06
|
Counterparts.
|
59
|
Section
9.07
|
Place
of Delivery and Governing Law.
|
59
|
Section
9.08
|
Further
Agreements.
|
59
|
Section
9.09
|
Intention
of the Parties.
|
59
|
Section
9.10
|
Successors
and Assigns; Assignment of Subservicing Agreement.
|
59
|
Section
9.11
|
Assignment
by the Seller.
|
59
|
Section
9.12
|
Amendment.
|
60
|
Section
9.13
|
Waivers.
|
60
|
Section
9.14
|
Exhibits.
|
60
|
Section
9.15
|
Intended
Third Party Beneficiaries.
|
60
|
Section
9.16
|
Confidentiality.
|
61
|
Section
9.17
|
General
Interpretive Principles.
|
63
|
Section
9.18
|
Reproduction
of Documents.
|
63
|
ii
EXHIBITS
EXHIBIT
A
|
Schedule
of Mortgage Loans (including Prepayment Charge
Schedule)
|
EXHIBIT
B
|
Custodial
Account Letter Agreement
|
EXHIBIT
C
|
Escrow
Account Letter Agreement
|
EXHIBIT
D-1
|
Master
Servicer Data Field Requirements
|
EXHIBIT
D-2
|
Master
Servicer Standard
Layout
|
EXHIBIT
D-3
|
Form
of Loan Loss Report
|
EXHIBIT
E
|
SASCO
2006-BC6 Trust Agreement
|
EXHIBIT
F
|
Form
of Certification to be Provided to the Depositor, the Trustee and
the
Master Servicer by the Servicer
|
EXHIBIT
G
|
Xxxxxx-Xxx
Guide No. 95-19
|
EXHIBIT
H
|
Servicing
Criteria to be Addressed in Report on Assessment of
Compliance
|
EXHIBIT
I
|
Transaction
Parties
|
EXHIBIT
J
|
Form
of Annual Officer’s Certificate
|
iii
This
SUBSERVICING AGREEMENT (this “Agreement”), entered into as of the 1st day of
December, 2006, by and among XXXXXX BROTHERS HOLDINGS INC., a Delaware
corporation (“LBH” or the “Seller”), OPTION ONE MORTGAGE CORPORATION, a
California corporation (“the Servicer”), having its principal executive offices
at 3 Ada, Irvine, California 92618, AURORA LOAN SERVICES LLC, as Master Servicer
(the “Master Servicer”) and acknowledged by U.S. BANK NATIONAL ASSOCIATION, as
trustee (the “Trustee”) under the Trust Agreement (as defined herein, with a
copy attached hereto as Exhibit E), recites and provides as
follows:
RECITALS
WHEREAS,
the Servicer and BNC Mortgage Company are parties to a Flow Interim Subservicing
Agreement dated January 1, 2006 (the
“Servicing Agreement”) pursuant to which the Servicer currently services certain
mortgage loans for Xxxxxx Brothers Bank, FSB (the “Bank”) as identified on
Exhibit A hereto (the “Mortgage Loans”);
WHEREAS,
Xxxxxx Brothers Bank, FSB (the “Bank”) acquired the Mortgage Loans from BNC
pursuant to a Flow Purchase and Warranties Agreement dated as of March 1, 2002
and as amended on December 16, 2002 and as further amended on June 2, 2003,
at
which time BNC assigned its interest solely as it relates to the Mortgage Loans
in the Servicing Agreement to the Bank.
WHEREAS,
at or prior to the Closing Date (as defined herein) the Bank and LBH shall
enter
into an Assignment and Assumption Agreement, dated as of December 1, 2006 (the
“Assignment and Assumption Agreement”), pursuant to which the Bank shall assign
all of its rights, title and interest in and to the Mortgage Loans to LBH and
LBH shall assume all of the rights and obligations of the Bank with respect
to
the Bank Mortgage Loans under the Servicing Agreement;
WHEREAS,
LBH has conveyed certain of the Mortgage Loans on a servicing-retained basis
to
Structured Asset Securities Corporation (the “Depositor”), which in turn has
conveyed the Mortgage Loans to the Trustee under a trust agreement dated as
of
December 1, 2006 (the “Trust Agreement”), among the Trustee, the Depositor, the
Master Servicer, Xxxxx Fargo Bank, N.A., as securities administrator (the
“Securities Administrator”) and Xxxxxxx Fixed Income Services Inc., as the
credit risk manager (the “Credit Risk Manager”);
WHEREAS,
the parties hereto are entering into the Agreement with the understanding that
certain of the Mortgage Loans serviced under this Agreement will be subject
to a
servicing transfer to be effective as of January 1, 2007, to Xxxxx Fargo Bank,
N.A., as successor servicer, and that, upon completion of such servicing
transfer, this Agreement will be terminated and its provisions will no longer
be
effective, with respect to such transferred Mortgage Loans, except as otherwise
provided herein;
WHEREAS,
multiple classes of certificates (the “Certificates”), including the Class P and
the Class X Certificates, will be issued on the Closing Date pursuant to the
Trust Agreement, and Xxxxxx Brothers Inc. or a nominee thereof is expected
to be
the initial registered holder of the Class P and Class X
Certificates;
WHEREAS,
subsequent to the Closing Date, Xxxxxx Brothers Inc. intends to convey all
of
its rights, title and interest in and to the Class P and the Class X
Certificates and all payments and all other proceeds received thereunder to
an
owner trust or other special purpose entity in which it will hold the sole
equity interest, and which owner trust or special purpose entity will issue
net
interest margin securities (“NIM Securities”) through an indenture trust, such
NIM Securities secured, in part, by the payments on such Certificates (the
“NIMS
Transaction”);
WHEREAS,
one or more insurers (collectively, the “NIMS Insurer”) may each issue insurance
policies guaranteeing certain payments under the NIM Securities to be issued
pursuant to the indenture in the NIMS Transaction;
WHEREAS,
in the event there may be two or more individual insurers, it is intended that
the rights extended to the NIMS Insurer pursuant to this Agreement be allocated
among two or more individual insurers that issue insurance policies in
connection with the NIMS Transaction through a NIMS Insurance Agreement by
and
among such insurers and the parties hereto;
WHEREAS,
from and after the Closing Date the Seller and the Trustee desire that the
Servicer service the Mortgage Loans pursuant to this Agreement, and the Servicer
has agreed to do so, subject to the rights of the Seller and of the Master
Servicer to terminate the rights and obligations of the Servicer hereunder
without cause, in the case of the Seller, and with cause, in the case of the
Master Servicer, as provided herein;
WHEREAS,
the Master Servicer shall be obligated under the Trust Agreement, among other
things, to supervise the servicing of the Mortgage Loans on behalf of the
Trustee, and shall have the right to terminate the rights and obligations of
the
Servicer under this Agreement upon the occurrence and continuance of an Event
of
Default as provided herein;
WHEREAS,
the Seller and the Servicer intend that the Trustee and the NIMS Insurer each
be
an intended third party beneficiary of this Agreement, but that the rights
of
the NIMS Insurer set forth in this Agreement shall exist only so long as the
NIM
Securities remain outstanding or the NIMS Insurer is owed amounts in respect
of
its guarantee of payment on the NIM Securities;
WHEREAS,
the Seller and the Servicer acknowledge and agree that certain of the Seller’s
rights and obligations under this Agreement (exclusive of the Seller’s rights
and obligations as owner of the servicing rights relating to the Mortgage Loans
and its rights and obligations under (i) Section 8.03 and (ii) Section 9.02,
all
of which rights and obligations will remain with the Seller or be assigned
or
delegated to the Master Servicer) will be assigned by the Seller to the
Depositor pursuant to a Mortgage Loan Sale and Assignment Agreement, dated
as of
December 1, 2006, and by the Depositor to the Trustee pursuant to the Trust
Agreement;
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth
and
for other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the Master Servicer, the Seller and the Servicer hereby
agree as follows:
2
ARTICLE
I.
DEFINITIONS
The
following terms are defined as follows (except as otherwise agreed in writing
by
the parties):
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices (i) of prudent
mortgage lending institutions that service mortgage loans of the same type
as
such Mortgage Loans in the jurisdiction where the related Mortgaged Property
is
located and (ii) in accordance with applicable state, local and federal laws,
rules and regulations.
Adjustable
Rate Mortgage Loan:
A
Mortgage Loan serviced pursuant to this Agreement under which the Mortgage
Interest Rate is adjusted from time to time in accordance with the terms and
provisions of the related Mortgage Note.
Advancing
Person:
As
defined in Section 4.03 hereof.
Agreement:
This
Subservicing Agreement and all amendments hereof and supplements
hereto.
Ancillary
Income:
All
income derived from the Mortgage Loans (other than the (i) Option One
Servicing Fee or (ii) Prepayment Charges or Servicer Prepayment Charge Payment
Amounts attributable to the Mortgage Loans), including but not limited to late
charges, any interest paid on funds deposited in the Custodial Account and
Escrow Account (other than interest on escrowed funds required by law to be
paid
to the Mortgagor), fees received with respect to checks or bank drafts returned
by the related bank for non-sufficient funds, assumption fees, optional
insurance administrative fees and all other incidental fees and
charges.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the transfer of the Mortgage
to
the party indicated therein, which assignment, notice of transfer or equivalent
instrument may be in the form of one or more blanket assignments covering the
Mortgage Loans secured by Mortgaged Properties located in the same jurisdiction,
if permitted by law.
Balloon
Mortgage Loan:
Any
Mortgage Loan that by its original terms or by virtue of any modification
provides for an amortization schedule extending beyond its originally scheduled
Maturity Date and which has a final scheduled payment that is proportionately
large in comparison to other scheduled payments.
Balloon
Payment:
The
final scheduled payment in respect of a Balloon Mortgage Loan.
Business
Day:
Any day
other than (i) a Saturday or Sunday or (ii) a day on which banking and savings
and loan institutions in the States of California, Colorado, Florida, New York,
Maryland, Massachusetts, Minnesota or the Commonwealth of Pennsylvania are
authorized or obligated by law or executive order to be closed.
3
Certificates:
Any or
all of the Certificates issued pursuant to the Trust Agreement.
Certificate
Registrar:
The
registrar appointed pursuant to Section 3.02 of the Trust
Agreement.
Closing
Date:
December 28, 2006.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Commission:
The
United States Securities and Exchange Commission.
Condemnation
Proceeds:
All
awards of settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan documents.
Costs:
For any
Person, any claims, losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and other costs and
expenses of such Person.
Custodial
Account:
The
separate account or accounts created and maintained by the Servicer pursuant
to
Section 3.03.
Custodial
Agreement:
Each
custodial agreement relating to custody of the Mortgage Loans, between the
Custodian and the Trustee, as acknowledged by the Depositor, the Securities
Administrator, the Master Servicer and the Servicesr, dated as of December
1,
2006.
Custodian:
Xxxxx
Fargo Bank, N.A. and Deutsche Bank National Trust Company and their successors
in interest and assigns.
Cut-off
Date:
December 1, 2006.
Delinquent:
For
reporting purposes, a Mortgage Loan is “Delinquent” when any payment
contractually due thereon has not been made by the close of business on the
Due
Date therefore. Such Mortgage Loan is “30 days Delinquent” if such payment has
not been received by the close of business on the corresponding day of the
month
immediately succeeding the month in which such payment was first due, or, if
there is not such corresponding day (e.g., as when a 30-day month follows a
31-day month in which a payment was due on the 31st
day of
such month), then on the last day of such immediately succeeding month.
Similarly for “60 days Delinquent” and the second immediately succeeding month
and “90 days Delinquent” and the third immediately succeeding
month.
Depositor:
Structured Asset Securities Corporation, a Delaware corporation, or any
successor in interest.
4
Determination
Date:
With
respect to each Remittance Date, the 15th day of the month in which such
Remittance Date occurs, or, if such 15th day is not a Business Day, the next
succeeding Business Day.
Distressed
Mortgage Loan:
As of
any Transfer Date, any Mortgage Loan that was Delinquent in payment for a period
of 90 days or more as of the first calendar day of the month in which such
Transfer Date occurs, without giving effect to any grace period permitted by
the
related Mortgage Note or for which the Servicer has accepted a deed in lieu
of
foreclosure. No Mortgage Loan shall be considered Delinquent for the purpose
of
this definition by virtue of the related Mortgagor having made payment to the
prior servicer.
Distribution
Date:
Commencing in January 2007, the 25th
day of
each month (or if such day is not a Business Day, the next succeeding Business
Day).
Due
Date:
The day
of the calendar month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any days of grace. With respect to the Mortgage Loans for which
payment from the Mortgagor is due on a day other than the first day of the
calendar month, such Mortgage Loans will be treated as if the Monthly Payment
is
due on the first day of the immediately succeeding month.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day of
the
month immediately preceding the month of the Remittance Date and ending on
the
first day of the month of the Remittance Date.
Eligible
Deposit Account:
An
account that is maintained with a federal or state-chartered depository
institution or trust company that complies with the definition of Eligible
Institution.
5
Eligible
Institution:
Any of
the following:
(i)
|
an
institution whose:
|
(A) commercial
paper, short-term debt obligations, or other short-term deposits are rated
at
least “A-1+” or long-term unsecured debt obligations are rated at least “AA-” by
S&P, if the amounts on deposit are to be held in the account for no more
than 365 days; or
(B) commercial
paper, short-term debt obligations, demand deposits, or other short-term
deposits are rated at least “A-2” by S&P, if the amounts on deposit are to
be held in the account for no more than 30 days and are not intended to be
used
as credit enhancement. Upon the loss of the required rating set forth in this
clause (ii), the accounts shall be transferred immediately to accounts which
have the required rating. Furthermore, commingling by the Servicer is acceptable
at the A-2 rating level if the Servicer is a bank, thrift, or depository and
provided the Servicer has the capability to immediately segregate funds and
commence remittance to an Eligible Deposit Account upon a downgrade;
or
(ii) the
corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the U.S. Code of Federal
Regulation Section 9.10(b), which, in either case, has corporate trust powers
and is acting in its fiduciary capacity.
Eligible
Investments:
Any one
or more of the obligations and securities listed below which investment provides
for a date of maturity not later than the Determination Date in each
month:
(i)
direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America, including
Federal Housing Administration debentures, but excluding any of such securities
whose terms do not provide for a payment of a fixed dollar amount upon maturity
or call for redemption (“Direct Obligations”) and Xxxxxxx Mac senior debt
obligations;
(ii)
federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories, the Trustee or the Securities
Administrator or any agent of the Trustee, the Securities Administrator, acting
in its respective commercial capacity) incorporated or organized under the
laws
of the United States of America or any state thereof and subject to supervision
and examination by federal or state banking authorities, so long as at the
time
of investment or the contractual commitment providing for such investment the
commercial paper or other short-term debt obligations of such depository
institution or trust company (or, in the case of a depository institution or
trust company which is the principal subsidiary of a holding company, the
commercial paper or other short-term debt or deposit obligations of such holding
company or deposit institution, as the case may be) have been rated by each
Rating Agency in its highest short-term rating category or one of its two
highest long-term rating categories;
6
(iii)
repurchase
agreements collateralized by Direct Obligations or securities guaranteed by
Xxxxxx Mae or Xxxxxxx Mac with any registered broker/dealer subject to
Securities Investors’ Protection Corporation jurisdiction or any commercial bank
insured by the FDIC, if such broker/dealer or bank has an uninsured, unsecured
and unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
(iv)
securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which have
a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to one
of
the two highest long-term credit rating categories of each Rating
Agency;
provided, however,
that
securities issued by any particular corporation will not be Eligible Investments
to the extent that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held as part of the
Custodial Account to exceed 20% of the aggregate principal amount of all
Eligible Investments in the Custodial Account; provided,
further,
that
such securities will not be Eligible Investments if they are published as being
under review with negative implications from either Rating Agency;
(v)
commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 180 days after the date of issuance thereof) rated by each Rating Agency
in
its highest short-term rating category;
(vi)
a
Qualified GIC (as defined in the Trust Agreement);
(vii)
certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii)
any
other
demand, money market, common trust fund or time deposit or obligation, or
interest-bearing or other security or investment, (A) rated in the highest
rating category by each Rating Agency or (B) that is acceptable to the NIMS
Insurer and would not adversely affect the then current rating by any Rating
Agency then rating the Certificates or the NIM Securities and
has a short term rating of at least “A-1” or its equivalent by each Rating
Agency.
Such
investments in this subsection (viii) may include money market mutual funds
or
common trust funds, including any fund for which the Trustee, the Securities
Administrator, the Master Servicer or any affiliate thereof serves as an
investment advisor, administrator, shareholder servicing agent, and/or custodian
or subcustodian, notwithstanding that (x) the Trustee, the Securities
Administrator, the Master Servicer or any affiliate thereof charges and collects
fees and expenses from such funds for services rendered, (y) the Trustee, the
Securities Administrator, the Master Servicer or any affiliate thereof charges
and collects fees and expenses for services rendered pursuant to this Agreement,
and (z) services performed for such funds and pursuant to this Agreement may
converge at any time;
provided, however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations.
7
Errors
and Omissions Insurance:
Errors
and Omissions Insurance to be maintained by the Servicer in accordance with
the
Xxxxxx Xxx Guide or Xxxxxxx Mac Guide.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to Section
3.05.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other document.
Event
of Default:
Any of
the events which may result in a termination for cause set forth in Section
8.01.
Xxxxxx
Xxx:
The
Federal National Mortgage Association or any successor thereto.
Xxxxxx
Mae Guide:
The
Xxxxxx Xxx Single Family Seller/Servicer Guide and all amendments or additions
thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Fidelity
Bond:
A
fidelity bond to be maintained by the Servicer in accordance with the Xxxxxx
Mae
or Xxxxxxx Mac Guide.
Final
Recovery Determination:
With
respect to any defaulted Mortgage Loan or any REO Property (other than any
Mortgage Loan or REO Property repurchased from the Trust), a determination
made
by the Servicer that all Insurance Proceeds, Liquidation Proceeds and other
payments or recoveries which the Servicer, in its reasonable good faith
judgment, expect to be finally recoverable in respect thereof have been so
recovered.
Fitch:
Fitch
Ratings, Inc., or any successor in interest.
Xxxxxxx
Mac:
The
Federal Home Loan Mortgage Corporation or any successor thereto.
Xxxxxxx
Mac Guide:
The
Xxxxxxx Mac Single Family Seller/Servicer Guide and all amendments or additions
thereto.
General
Servicing Fee:
With
respect to each Due Period and any Mortgage Loan, an amount equal to one-twelfth
the product of (i) the General Servicing Fee Rate and (ii) the outstanding
principal balance of such Mortgage Loan as of the related Determination Date.
The General Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds to
the
extent permitted by Section 3.02 of this Agreement) of such Monthly Payments
collected by the Servicer, or as otherwise provided under this
Agreement.
8
General
Servicing Fee Rate:
0.50%
per annum.
Xxxxxx
Mae:
The
Government National Mortgage Association or any successor thereto.
Holder
or Certificateholder:
The
registered owner of any Certificate as recorded on the books of the Certificate
Registrar.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property, including, but not limited
to,
proceeds of any hazard or flood insurance policy or any PMI Policy, to the
extent any such proceeds are not to be applied to the restoration and repair
of
the related Mortgaged Property or released to the Mortgagor in accordance with
the procedures that the Servicer would follow in servicing mortgage loans for
its own account, subject to the terms and conditions of the related Mortgage
Note and Mortgage.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise, or the sale of the related REO Property, if
the
Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Master
Servicer:
Aurora
Loan Services LLC, or any successor in interest, or if any successor Master
Servicer shall be appointed as provided in the Trust Agreement, then such
successor Master Servicer.
MERS:
Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or
any
successor in interest thereto.
MERS
Eligible Mortgage Loan:
Any
Mortgage
Loan that has been designated by the Servicer as recordable in the name of
MERS,
as nominee.
MERS
Mortgage Loan:
Any
Mortgage Loan as to which the related Mortgage, or an Assignment of Mortgage,
has been or will be recorded in the name of MERS, as nominee for the holder
from
time to time of the related Mortgage Note.
Monthly
Advance:
With
respect to each Remittance Date and each Mortgage Loan, an amount equal to
the
Monthly Payment (with the interest portion of such Monthly Payment adjusted
to
the Mortgage Loan Remittance Rate or, at the Servicer’s option, at a rate equal
to the related Mortgage Interest Rate minus the Option One Servicing Fee Rate)
that was due on the Mortgage Loan, and that was Delinquent at the close of
business on the first day of the month in which such Remittance Date occurs
or
was deferred pursuant to Section 3.01(c), but only to the extent that such
amount is expected, in the reasonable judgment of the Servicer, to be
recoverable from collections or other recoveries (including Liquidation
Proceeds, Condemnation Proceeds and Insurance Proceed) in respect of such
Mortgage Loan. To the extent that the Servicer determines that any such amount
is not recoverable from collections or other recoveries in respect of such
Mortgage Loan, such determination shall be evidenced by a certificate of a
Servicing Officer delivered to the Master Servicer and the NIMS Insurer setting
forth such determination and the procedures and considerations of the Servicer
forming the basis of such determination.
9
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage
Loan.
Moody’s:
Xxxxx’x
Investors Service, Inc. or any successor in interest.
Mortgage:
The
mortgage, deed of trust or other instrument securing a Mortgage Note, which
creates a first or second lien on an unsubordinated estate in fee simple in
real
property securing the Mortgage Note.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note after giving effect to any
applicable Relief Act Reduction.
Mortgage
Loan:
An
individual mortgage loan that is the subject of this Agreement, each mortgage
loan subject to this Agreement being identified on the Mortgage Loan Schedule
attached as Exhibit A, which mortgage loan includes without limitation the
Mortgage Loan documents, the Monthly Payments, Principal Prepayments,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition
Proceeds, and all other rights, benefits, proceeds and obligations arising
from
or in connection with such Mortgage Loan.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Master Servicer, which shall be equal to the Mortgage Interest Rate minus the
General Servicing Fee Rate.
Mortgage
Loan Schedule:
A
schedule of the Mortgage Loans, attached hereto as Exhibit A, setting forth
information with respect to such Mortgage Loans as agreed to by the Seller,
the
Servicer and the Master Servicer, including, but not limited to (i) any MERS
identification number (if available) with respect to each MERS Mortgage Loan
or
MERS Eligible Mortgage Loan, (ii) a data field indicating whether such Mortgage
Loan is insured under a PMI Policy and identifying the related Qualified
Insurer, (iii) a Prepayment Charge Schedule, (iv) a data field indicating
whether the Mortgage Loan is subject to an early payment default repurchase
obligation and (v) a data field indicating the Option One Servicing Fee
Rate.
Mortgage
Note:
The
original, executed note or other evidence of the indebtedness of a Mortgagor
secured by a Mortgage.
Mortgaged
Property:
The
real property securing repayment of the debt evidenced by a Mortgage
Note.
Mortgagor:
The
obligor on a Mortgage Note.
NIM
Securities:
As
defined in the sixth RECITAL to this Agreement.
10
NIMS
Insurer:
As
defined in the seventh RECITAL to this Agreement.
NIMS
Transaction:
As
defined in the sixth RECITAL to this Agreement.
Non-MERS
Eligible Mortgage Loan:
Any
Mortgage
Loan other than a MERS Eligible Mortgage Loan.
Non-MERS
Mortgage Loan:
Any
Mortgage Loan other than a MERS Mortgage Loan.
Nonrecoverable
Advance:
A
Monthly Advance or Servicing Advance that the Servicer has previously made
or
proposed to be made, and has determined would not be recoverable from
collections or other recoveries in respect of such Mortgage Loan, such
determination to be evidenced by a certificate of a Servicing Officer delivered
to the Master Servicer and the NIMS Insurer setting forth such determination
and
the procedures and considerations employed by the Servicer forming the basis
of
such determination.
Notice
Date:
The
15th
calendar
day preceding each Transfer Date, or, if such day is not a Business Day, the
immediately preceding Business Day.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board, the President or a vice
president (however denominated), and by the Treasurer, the Secretary, or one
of
the assistant treasurers or assistant secretaries of the Servicer, a Servicing
Officer, the Master Servicer, or the Seller, as applicable.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Servicer, reasonably
acceptable to the Trustee, the Master Servicer, the NIMS Insurer and the Seller,
provided
that any
Opinion of Counsel relating to qualification of the Mortgage Loans in a REMIC
or
compliance with the REMIC Provisions must be an opinion of counsel acceptable
to
the Trustee, the Master Servicer, the NIMS Insurer and the Seller, who (i)
is in
fact independent of the Seller, the Servicer, or any Master Servicer (ii) does
not have any material direct or indirect financial interest in the Seller or
the
Servicer, or any Master Servicer or any affiliate of any such entity and (iii)
is not connected with the Seller or Servicer, or any Master Servicer as an
officer, employee, director or person performing similar functions.
Option
One Servicing Fee:
With
respect to each Due Period and any Mortgage Loan, an amount equal to the sum
of
(a) one-twelfth the product of (i) the Option One Servicing Fee Rate and
(ii) the outstanding principal balance of such Mortgage Loan as of the
related Determination Date. The Option One Servicing Fee is payable solely
from,
the interest portion (including recoveries with respect to interest from
Liquidation Proceeds, Insurance Proceeds or Condemnation Proceeds to the extent
permitted by Section 3.04 of this Agreement) of such Monthly Payments collected
by the Servicer, or as otherwise provided under this Agreement.
Option
One Servicing Fee Rate:
0.23%
per annum.
Person:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
11
PMI
Insurer:
Any
Qualified Insurer issuing a PMI Policy with respect to the Mortgage
Loans.
PMI
Policy:
A
policy of primary mortgage guaranty insurance including all endorsements thereto
issued by a Qualified Insurer, as required by this Agreement or the Trust
Agreement with respect to certain Mortgage Loans whether acquired by the
Mortgagor, the lender or the Seller on behalf of the Trust Fund.
Prepayment
Charge:
With
respect to any Mortgage Loan and Remittance Date, the charges or premiums,
as
specified in the Prepayment Charge Schedule, if any, due in connection with
a
full or partial prepayment of such Mortgage Loan during the immediately
preceding Prepayment Period in accordance with the terms thereof (but excluding
any Servicer Prepayment Charge Payment Amount).
Prepayment
Charge Schedule:
A data
field in the Mortgage Loan Schedule attached hereto as Exhibit A which sets
forth the amount or method of calculation of the Prepayment Charge and the
term
during which such Prepayment Charge is imposed with respect to a Mortgage
Loan.
Prepayment
Interest Shortfall Amount:
With
respect to any Mortgage Loan that was subject to a Principal Prepayment in
full
or in part during any Due Period, which Principal Prepayment was applied to
such
Mortgage Loan prior to such Mortgage Loan’s Due Date in such Due Period, the
amount of interest (net of the General Servicing Fee) that would have accrued
on
the amount of such Principal Prepayment during the period commencing on the
date
as of which such Principal Prepayment was applied to such Mortgage Loan and
ending on the day immediately preceding such Due Date, inclusive.
Prepayment
Period:
With
respect to any Distribution Date and any full or partial Principal Prepayments,
the calendar month immediately preceding the month in which the related
Distribution Date occurs.
Prime
Rate:
The
prime rate published from time to time, as published as the average rate in
The
Wall Street Journal.
Principal
Prepayment:
Any
payment by a Mortgagor of principal (other than a Balloon Payment) or other
recovery of principal on a Mortgage Loan (including any payment or recovery
of
principal in connection with a purchase of a Mortgage Loan by a Seller, the
Servicer, the NIMS Insurer or any other Person) that is recognized as having
been received or recovered in advance of its scheduled Due Date and applied
to
reduce the principal balance of the Mortgage Loan in accordance with the terms
of the Mortgage Note.
Prior
Servicer:
Any
prior servicer (other than the Servicer) of any Mortgage Loans.
Purchase
Price:
With
respect to any Mortgage Loan or REO Property to be purchased by the NIMS Insurer
pursuant to Section 8.03(c), an amount equal to the sum of (i) 100% of the
principal balance thereof as of the date of purchase, (ii) accrued interest
on
such principal balance at the applicable Mortgage Interest Rate in effect from
time to time to the Due Date as to which interest was last covered by a payment
by the Mortgagor or a Monthly Advance by the Servicer or Master Servicer and
(iii) any unreimbursed Servicing Advances, Monthly Advances and any unpaid
General Servicing Fees allocable to such Distressed Mortgage Loan.
12
Qualified
Insurer:
A
mortgage guaranty insurance company duly authorized and licensed where required
by law to transact mortgage guaranty insurance business and approved as an
insurer by Xxxxxxx Mac and/or Xxxxxx Mae.
Rating
Agency:
Each of
Fitch, Xxxxx’x and S&P or their successors. If such agencies or their
successors are no longer in existence, “Rating Agencies” shall be such
nationally recognized statistical rating agencies, or other comparable Person,
designated by the Seller, notice of which designation shall be given to the
NIMS
Insurer, the Master Servicer and the Servicer.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Relief
Act Reduction:
With
respect to any Mortgage Loan as to which there has been a reduction in the
amount of the interest collectible thereon as a result of the application of
the
Servicemembers Civil Relief Act or similar state or local law, any amount by
which interest collectible on such Mortgage Loan for the Due Date in the related
Due Period is less than the interest accrued thereon for the applicable
one-month period at the Mortgage Interest Rate without giving effect to such
reduction.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
Remittance
Date:
The
18th day (or if such 18th day is not a Business Day, the first Business Day
immediately following) of any calendar month.
REO
Disposition:
The
final sale or other disposition by the Servicer of any REO
Property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section
3.12.
REO
Property:
A
Mortgaged Property acquired by the Servicer on behalf of the Trust Fund through
foreclosure or by deed in lieu of foreclosure pursuant to Section 3.12
hereof.
Residual
Certificate:
The
Class R Certificate.
S&P:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor in interest.
13
Securities
Administrator:
Xxxxx
Fargo Bank, N.A. or its successor in interest.
Seller
Remittance Amount:
With
respect to each Due Period and any Mortgage Loan, an amount equal to one-twelfth
the product of (a) the Seller Remittance Rate and (b) the outstanding principal
balance of the Mortgage Loan as of the related Determination Date. The
obligation of the Servicer to pay the Seller Remittance Amount with respect
to a
Mortgage Loan is limited to, and the Seller Remittance Amount is payable solely
from, the interest portion (including recoveries with respect to interest from
Liquidation Proceeds to the extent permitted by Section 3.04 of this Agreement)
of the Monthly Payments collected by the Servicer with respect to such Mortgage
Loan, or as otherwise provided under this Agreement; provided,
however,
that
the Servicer may include, at its option, any Seller Remittance Amount due on
any
Distribution Date but which has not been collected in the related Monthly
Advance. The Master Servicer shall have no obligation to monitor or enforce
the
obligation of the Servicer to remit payment of the Seller Remittance Amount
to
the Seller.
Seller
Remittance Rate:
With
respect to each Mortgage Loan, the difference between the General Servicing
Fee
Rate and the Option One Servicing Fee Rate.
Servicer:
Option
One Mortgage Corporation or its successor in interest or assigns or any
successor to the Servicer under this Agreement as herein provided.
Servicer
Prepayment Charge Payment Amount:
The
amount payable by the Servicer in respect of any impermissibly waived Prepayment
Charges pursuant to Section 3.15 hereof.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses other
than Monthly Advances (including reasonable attorneys’ fees and disbursements)
incurred in the performance by the Servicer of its servicing obligations,
including, but not limited to, the cost of (a) the preservation, inspection,
restoration and protection of the Mortgaged Property, (b) any enforcement of
administrative or judicial proceedings, including foreclosures, (c) the
management and liquidation of the Mortgaged Property (including costs incurred
in connection with environmental inspections or other related costs of
foreclosure of Mortgaged Property potentially contaminated by hazardous or
toxic
substance or wastes in accordance with Section 3.12 hereof) if the Mortgaged
Property is acquired in satisfaction of the Mortgage, (d) taxes, assessments,
water rates, sewer rents and other charges which are or may become a lien upon
the Mortgaged Property, and PMI Policy premiums and fire and hazard insurance
coverage, (e) any losses sustained by the Servicer with respect to the
liquidation of the Mortgaged Property and (f) compliance with the obligations
pursuant to the provisions of the Xxxxxxx Mac Guide.
Servicing
File:
The
items pertaining to a particular Mortgage Loan including, but not limited to,
the computer files, data disks, books, records, data tapes, notes, and all
additional documents generated as a result of or utilized in originating and/or
servicing each Mortgage Loan, which are held in trust for the Trustee by the
Servicer.
Servicing
Officer:
Any
representative of the Servicer involved in or responsible for, the
administration and servicing of the Mortgage Loans whose name appears on a
list
of servicing officers furnished by the Servicer to the Master Servicer upon
request, as such list may from time to time be amended.
14
Special
Servicer:
The
person designated by the Seller (with the prior consent of the Master Servicer
and the NIMS Insurer) to assume the servicing of Distressed Mortgage Loans
pursuant to Section 8.03 hereof.
Subcontractor:
Any
vendor, subcontractor or other
Person
that is not responsible for the overall servicing (as “servicing” is commonly
understood by participants in the mortgage-backed securities market) of the
Mortgage Loans but performs one or more discrete functions identified in Item
1122(d) of Regulation AB with respect to the Mortgage Loans under the direction
or authority of the Servicer or a related Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under this Agreement that are
identified in Item 1122(d) of Regulation AB.
Transfer
Date:
The
fourth calendar day of each month, or, if such day is not a Business Day, the
next succeeding Business Day. Each transfer of servicing on a Transfer Date
shall be deemed to be effective immediately following the close of business
on
such Transfer Date.
Trust
Agreement:
As
defined in the third RECITAL of this Agreement.
Trust
Fund:
The
trust fund established by the Trust Agreement known as the “SASCO 2006-BC6,” the
assets of which consist of the Mortgage Loans and any related
assets.
Trustee:
U.S.
Bank National Association, or any successor in interest, or if any successor
trustee or co-trustee shall be appointed as provided in the Trust Agreement,
then such successor trustee or such co-trustee, as the case may be.
Any
capitalized terms used and not defined in this Agreement shall have the meanings
ascribed to such terms in the Trust Agreement.
ARTICLE
II.
SELLER’S
ENGAGEMENT OF SERVICER TO PERFORM SERVICING
RESPONSIBILITIES
Section
2.01 Contract
for Servicing; Possession of Servicing Files.
The
Seller , by execution and delivery of this Agreement, does hereby contract
with
the Servicer, subject to the terms of this Agreement, for the servicing of
the
Mortgage Loans. On or before the Closing Date, the Seller shall cause to be
delivered the Servicing Files with respect to the Mortgage Loans listed on
the
Mortgage Loan Schedule to the Servicer if the Servicer does not already hold
such Servicing Files. Each Servicing File delivered to the Servicer shall be
held in trust by the Servicer for the benefit of the Trustee;
provided, however,
that the
Servicer shall have no liability for any Servicing Files (or portions thereof)
not delivered by the Seller . The Servicer’s possession of any portion of the
Mortgage Loan documents shall be at the will of the Trustee for the sole purpose
of facilitating servicing of the related Mortgage Loan pursuant to this
Agreement, and such retention and possession by the Servicer shall be in a
custodial capacity only. The ownership of each Mortgage Note, Mortgage, and
the
contents of the Servicing File shall be vested in the Trustee and the ownership
of all records and documents with respect to the related Mortgage Loan prepared
by or which come into the possession of the Servicer shall immediately vest
in
the Trustee and shall be retained and maintained, in trust, by the Servicer
at
the will of the Trustee in such custodial capacity only. The portion of each
Servicing File retained by the Servicer pursuant to this Agreement shall be
segregated from the other books and records of the Servicer and shall be
appropriately marked to clearly reflect the ownership of the related Mortgage
Loan by the Trustee. The Servicer shall release from its custody the contents
of
any Servicing File retained by it only in accordance with this
Agreement.
15
Section
2.02 Books
and Records.
(a)
Subject
to Section 3.01(a) hereof, as soon as practicable after the Closing Date or
the
date on which a Qualifying Substitute Mortgage Loan is delivered pursuant to
Section 2.05 of the Trust Agreement, as applicable (but in no event more than
90
days thereafter except to the extent delays are caused by the applicable
recording office), the Servicer, at the expense of the Seller, shall cause
the
Mortgage or Assignment of Mortgage, as applicable, with respect to each MERS
Eligible Mortgage Loan, to be properly recorded in the name of MERS in the
public recording office in the applicable jurisdiction, or shall ascertain
that
such have previously been so recorded.
(b)
Subject
to Section 3.01(a) hereof, an Assignment of Mortgage in favor of the Trustee
shall be recorded as to each Mortgage Loan unless instructions to the contrary
are delivered to the Servicer and the NIMS Insurer, in writing, by the Trustee.
The form of such assignment shall be: “U.S. Bank National Association, as
Trustee of SASCO 2006-BC6.” Subject to the preceding sentence, as soon as
practicable after the Closing Date (but in no event more than 90 days thereafter
except to the extent delays are caused by the applicable recording office),
the
Servicer, at the expense of the Seller, shall cause to be properly recorded
in
each public recording office where such Non-MERS Eligible Mortgage Loans are
recorded each Assignment of Mortgage. Notwithstanding the foregoing, the
Servicer shall not cause to be recorded any Assignment which relates to a
Mortgage Loan in a jurisdiction where the Rating Agencies do not require
recordation; provided
further,
however,
notwithstanding the foregoing, upon the occurrence of certain events set forth
in the Trust Agreement, each such assignment of Mortgage shall be recorded
by
the Master Servicer as set forth in the Trust Agreement.
(c)
Additionally,
the Servicer shall prepare and execute any note endorsements relating to any
of
the Non-MERS Mortgage Loans.
(d)
All
rights arising out of the Mortgage Loans shall be vested in the Trustee, subject
to the Servicer’s right to service and administer the Mortgage Loans hereunder
in accordance with the terms of this Agreement. All funds received on or in
connection with a Mortgage Loan, other than the General Servicing Fee and other
compensation to which the Servicer is entitled as set forth herein, including
but not limited to in Section 5.01 below, shall be received and held by the
Servicer in trust for the benefit of the Trustee pursuant to the terms of this
Agreement.
16
(e)
Any
out-of-pocket costs incurred by the Servicer pursuant to this Section 2.02
and
Section 3.01(a), including (i) a management fee of $0.25 per Mortgage Loan
for tracking, maintaining and managing MERS recording of the Mortgage Loans
and
(ii) any recording or other fees in connection with the Servicer’s
obtaining the necessary powers of attorney (and which are specified herein
to be
an expense of the Seller), shall be reimbursed to the Servicer by the Seller
within five (5) Business Days of receipt by the Seller of an invoice for
reimbursement. The Trust Fund shall not reimburse the Seller for any such
reimbursement to the Servicer.
ARTICLE
III.
SERVICING
OF THE MORTGAGE LOANS
Section
3.01 Servicer
to Service.
The
Servicer, as an independent contractor, shall service and administer the
Mortgage Loans from and after the Closing Date and shall have full power and
authority, acting alone, to do any and all things in connection with such
servicing and administration which the Servicer may deem necessary or desirable,
consistent with the terms of this Agreement and with Accepted Servicing
Practices.
The
Seller and the Servicer additionally agree as follows:
(a)
The
Servicer shall (A) record or cause to be recorded the Mortgage or the Assignment
of Mortgage, as applicable, with respect to all MERS Eligible Mortgage Loans,
in
the name of MERS, or shall ascertain that such have previously been so recorded;
(B) prepare or cause to be prepared all Assignments of Mortgage with respect
to
all Non-MERS Eligible Mortgage Loans; (C) prepare for recording or cause to
be
recorded, subject to Section 2.02(b) hereof, all Assignments of Mortgage with
respect to Non-MERS Mortgage Loans in the name of the Trust; (D) pay the
recording costs pursuant to Section 2.02 hereof; and/or (E) track such Mortgages
and Assignments of Mortgage to ensure they have been recorded. The Servicer
shall be entitled to be paid by the Seller, on behalf of the Depositor, its
out-of-pocket costs for the preparation and recordation of the Mortgages and
Assignments of Mortgage. After the expenses of such recording costs pursuant
to
Section 2.02 hereof shall have been paid by the Servicer, the Servicer shall
submit to the Seller a reasonably detailed invoice for reimbursement of
recording costs it incurred hereunder. The Seller, upon receipt of an invoice,
shall reimburse the Servicer within five (5) Business Days;
(b)
If
applicable, the Servicer shall, in accordance with the relevant provisions
of
the Xxxxxxxx-Xxxxxxxx National Affordable Housing Act of 1990, as the same
may
be amended from time to time, and the regulations provided in accordance with
the Real Estate Settlement Procedures Act, provide notice to the Mortgagor
of
each Mortgage Loan of the transfer of the servicing thereto to the Servicer;
and
(c)
The
Servicer shall fully furnish, in accordance with the Fair Credit Reporting
Act
of 1970, as amended (the “Fair Credit Reporting Act”) and its implementing
regulations, accurate and complete information (e.g.,
favorable
and unfavorable) on its borrower credit files to Equifax, Experian and Trans
Union Credit Information Company (three of the credit repositories) on a monthly
basis.
17
(d)
The
Servicer shall be responsible for the preparation of and costs associated with
notifications to Mortgagors of the assumption of servicing by the
Servicer.
(e)
Consistent
with the terms of this Agreement and except as provided in Section 3.15 hereof,
the Servicer may waive any late payment charge, assumption fee or other fee
(other than a Prepayment Charge) that may be collected in the ordinary course
of
servicing the Mortgage Loans. The Servicer shall not make any future advances
to
any Mortgagor under any Mortgage Loan, and (unless the Mortgagor is in default
with respect to the Mortgage Loan or such default is, in the judgment of the
Servicer, reasonably foreseeable) the Servicer shall not permit any modification
of any material term of any Mortgage Loan, including any modification that
would
change the Mortgage Interest Rate (except for modifications relating to Relief
Act Reduction), defer or forgive the payment of principal or interest, reduce
or
increase the outstanding principal balance (except for actual payments of
principal) or change the final maturity date on such Mortgage Loan. In the
event
of any such modification which permits the deferral of interest or principal
payments on any Mortgage Loan, the Servicer shall, on the Business Day
immediately preceding the Remittance Date in any month in which any such
principal or interest payment has been deferred, make a Monthly Advance in
accordance with Section 4.03, in an amount equal to the difference between
(a)
such month’s principal and one month’s interest at the Mortgage Loan Remittance
Rate (or, at the Seller’s option, at a rate equal to the related Mortgage
Interest Rate minus the Option One Servicing Fee Rate) on the unpaid principal
balance of such Mortgage Loan and (b) the amount paid by the Mortgagor. The
Servicer shall be entitled to reimbursement for such advances to the same extent
as for all other advances made pursuant to Section 4.03. Without limiting the
generality of the foregoing, the Servicer shall continue, and is hereby
authorized and empowered, to execute and deliver on behalf of itself and the
Trustee, all instruments of satisfaction or cancellation, or of partial or
full
release, discharge and all other comparable instruments, with respect to the
Mortgage Loans and with respect to the Mortgaged Properties; provided, further,
that the Servicer shall notify the related Custodian of the related Mortgage
Loan of such full release or discharge. Upon the request of the Servicer, the
Trustee shall execute and deliver to the Servicer, within the later of fifteen
days from the Closing Date or within fifteen days of such Servicer request,
any
powers of attorney (one for each county in which any of the Mortgaged Properties
are located) and other documents, furnished to it by the Servicer and reasonably
satisfactory to the Trustee, necessary or appropriate to enable the Servicer
to
carry out its servicing and administrative duties under this
Agreement.
The
Servicer shall not without the Trustee’s written consent: (i) initiate any
action, suit or proceedings solely under the Trustee’s name without indicating
the Servicer’s representative capacity or (ii) take any action with the intent
to cause, and which actually does cause, the Trustee to be registered to do
business in any state. The Servicer shall indemnify the Trustee for any and
all
costs, liabilities and expenses incurred by the Trustee in connection with
the
negligent or willful misuse of such powers of attorney by the
Servicer.
Promptly
after the execution of any assumption, modification, consolidation or extension
of any Mortgage Loan, the Servicer shall forward to the Master Servicer copies
of any documents evidencing such assumption, modification, consolidation or
extension. Notwithstanding anything to the contrary contained in this Agreement,
the Servicer shall not make or permit any modification, waiver or amendment
of
any term of any Mortgage Loan that would cause the REMIC or trust fund created
under the Trust Agreement to fail to qualify as a REMIC or result in the
imposition of any tax under Section 860F(a) or Section 860G(d) of the
Code.
18
Section
3.02 Collection
of Mortgage Loan Payments.
Continually
from the Closing Date until the date each Mortgage Loan ceases to be subject
to
this Agreement, the Servicer shall proceed diligently to collect all payments
due under each of the Mortgage Loans when the same shall become due and payable
and shall take special care in ascertaining and estimating Escrow Payments
and
all other charges that will become due and payable with respect to the Mortgage
Loans and each related Mortgaged Property, to the end that the installments
payable by the Mortgagors will be sufficient to pay such charges as and when
they become due and payable.
Section
3.03 Establishment
of and Deposits to Custodial Accounts.
(a)
The
Servicer shall segregate and hold all funds collected and received pursuant
to
the Mortgage Loans separate and apart from any of its own funds and general
assets and shall initially establish and maintain one or more Custodial
Accounts, in the form of time deposit or demand accounts, titled “Option One
Mortgage Corporation in
trust
for U.S. Bank National Association, as Trustee for SASCO 2006-BC6.” Any
Custodial Account shall be an Eligible Deposit Account established with a
Eligible Institution. Any funds deposited in a Custodial Account may be invested
in Eligible Investments subject to the provisions of Section 3.11 hereof. Funds
deposited in the Custodial Account may be drawn on by the Servicer in accordance
with Section 3.04 hereof. The creation of any Custodial Account shall be
evidenced by a letter agreement in the form of Exhibit B. Not later than 30
days
after the Closing Date, a copy of such certification or letter agreement shall
be furnished to the Master Servicer, the NIMS Insurer and, upon request, to
any
subsequent owner of the Mortgage Loans.
(b)
The
Servicer shall deposit in the Custodial Account within two Business Days of
receipt, and retain therein, the following collections received by the Servicer
and payments made by the Servicer after the Cut-off Date (other than scheduled
payments of principal and interest due on or before the Cut-off Date) or
received by the Servicer prior to the Cut-off Date but allocable to the period
subsequent thereto:
(i)
all
payments on account of principal on the Mortgage Loans, including all Principal
Prepayments;
(ii)
all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii)
all
Prepayment Charges or any Servicer Prepayment Charge Payment Amounts to be
paid
by the Servicer to the Trust Fund;
19
(iv)
all
Liquidation Proceeds;
(v)
all
Insurance Proceeds (other than any amounts immediately applied to the
restoration or repair of the Mortgaged Property or immediately released to
the
Mortgagor);
(vi)
all
Condemnation Proceeds that are not applied to the restoration or repair of
the
Mortgaged Property or released to the Mortgagor;
(vii)
with
respect to each Principal Prepayment in full or in part, the Prepayment Interest
Shortfall Amount, if any, for the month of distribution, made from the
Servicer’s own funds or from the Seller Remittance Amount, without reimbursement
up to a maximum amount per month of the General Servicing Fee actually received
for the Mortgage Loans;
(viii)
all
Monthly Advances made by the Servicer or an Advancing Person pursuant to Section
4.03;
(ix)
any
amounts required to be deposited by the Servicer in connection with the
deductible clause in any blanket hazard insurance policy;
(x)
any
amounts received with respect to or related to any REO Property or REO
Disposition Proceeds;
(xi)
any
amounts required to be deposited pursuant to Section 3.11 in connection with
any
losses realized on Eligible Investments with respect to funds held in the
Custodial Account;
(xii)
any
amounts required to be deposited by the Servicer pursuant to Section 3.16(a)
in
connection with any unpaid claims that are a result of a breach by the Servicer
or any Subservicer of its obligations hereunder or under a PMI
Policy;
(xiii)
any
amounts received by it under any PMI Policy;
(xiv)
the
Seller Remittance Amount; and
(xv)
any
other
amount required hereunder to be deposited by the Servicer in the Custodial
Account.
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing payments in the nature of (i) late payment charges and
insufficient fund charges, (ii) assumption fees, (iii) other Ancillary Income
and (iv) the Option One Servicing Fee need not be deposited by the Servicer
into
the Custodial Account.
Any
interest paid on funds deposited in the Custodial Account by the depository
institution shall accrue to the benefit of the Servicer as additional servicing
compensation and the Servicer shall be entitled to retain and withdraw such
interest from the Custodial Account pursuant to Section 3.04 (iv) of this
Agreement. Additionally, any other benefit derived from the Custodial Account
associated with the receipt, disbursement and accumulation of principal,
interest, taxes, hazard insurance, mortgage insurance, etc. shall accrue for
the
benefit of the Servicer.
20
Section
3.04 Permitted
Withdrawals From Custodial Account.
The
Servicer shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
(i)
to
make
payments to the Master Servicer in the amounts and in the manner provided for
in
Section 4.01;
(ii)
to
deposit
the Seller Remittance Amount into the collection account maintained by the
Master Servicer for payment by the Master Servicer to
the
Seller on the next succeeding Distribution Date;
(iii)
in
the
event the Servicer has elected not to retain the Option One Servicing Fee out
of
any Mortgagor payments on account of interest or other recovery of interest
with
respect to a particular Mortgage Loan (including late collections of interest
on
such Mortgage Loan, or interest portions of Insurance Proceeds, Liquidation
Proceeds or Condemnation Proceeds) prior to the deposit of such Mortgagor
payment or recovery in the Custodial Account, to pay to itself the related
Option One Servicing Fee from all such Mortgagor payments on account of interest
or other such recovery for interest with respect to that Mortgage
Loan;
(iv)
to
pay
itself investment earnings on funds deposited in the Custodial
Account;
(v)
to
clear
and terminate the Custodial Account upon the termination of this Agreement;
(vi)
to
transfer funds to another Qualified Depository in accordance with Section 3.11
hereof;
(vii)
to
invest
funds in certain Eligible Investments in accordance with Section 3.11 hereof;
(viii)
to
reimburse itself to the extent of funds held in the Custodial Account for
Monthly Advances of the Servicer’s funds made pursuant to Section 4.03. The
Servicer’s right to reimburse itself pursuant to this subclause (viii) with
respect to any Mortgage Loan shall be limited to amounts received on or in
respect of the related Mortgage Loan which represent late recoveries of payments
of principal or interest with respect to which a Monthly Advance was made,
it
being understood that in the case of any such reimbursement the Servicer’s right
thereto shall be prior to the rights of the Trust Fund;
provided, however,
that
following the final liquidation of a Mortgage Loan, the Servicer may reimburse
itself for previously unreimbursed Monthly Advances in excess of such
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds or REO
Disposition Proceeds with respect to such Mortgage Loan from any funds in the
Custodial Account, it being understood, in the case of any such reimbursement,
the Servicer’s right thereto shall be prior to the rights of the Trust Fund. The
Servicer may recover at any time from amounts on deposit in the Custodial
Account the amount of any Monthly Advances that the Servicer deems
nonrecoverable or that remain unreimbursed to the Servicer from related
Liquidation Proceeds after the final liquidation of the Mortgage Loan and to
reimburse itself for Monthly Advances to the extent of funds held in the
Collection Account for future distribution that were not included in available
funds for the preceding Remittance Date;
21
(ix)
to
reimburse itself for unreimbursed Servicing Advances and for any unpaid Option
One Servicing Fees and to reimburse the Seller for any unpaid Seller Remittance
Amount, the Servicer’s and the Seller’s respective rights to such reimbursement
pursuant to this subclause (ix) with respect to any Mortgage Loan being limited
to related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds,
REO
Disposition Proceeds and other amounts received in respect of the related REO
Property, and such other amounts as may be collected by the Servicer from the
Mortgagor or otherwise relating to the Mortgage Loan, it being understood that,
in the case of any such reimbursement, the Servicer’s and the Seller’s right
thereto shall be prior to the rights of the Trust Fund; provided,
however,
that
following the final liquidation of the related Mortgage Loan, the Servicer
may
reimburse itself for any such unreimbursed Servicing Advances or any unpaid
Option One Servicing Fees and the Seller may reimburse itself for any such
unpaid Seller Remittance Amount in excess of such Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds with respect
to such Mortgage Loan from any funds in the Custodial Account, it being
understood that, in case of any such reimbursement, the Servicer’s and the
Seller’s respective rights thereto shall be prior to the rights of the Trust
Fund;
(x)
to
reimburse the Servicer for expenses incurred by, and reimbursable to, the
Servicer pursuant to Section 6.03, but only to extent such amounts are
determined to be reimbursable by the Trust Fund pursuant to Section
6.03;
(xi)
to
reimburse itself for expenses incurred or reimbursable to the Servicer pursuant
to Section 3.12 to the extent not previously reimbursed under clause (ix) of
this Section 3.04;
(xii)
to
withdraw funds necessary for the operation, management and maintenance of any
REO related property to the extent not previously reimbursed under clause (ix)
of this Section 3.04; and
(xiii)
to
withdraw any funds deposited to the Custodial Account in error.
Notwithstanding
the foregoing clauses (viii) and (ix), no Monthly Advances or Servicing Advances
shall be required to be made by the Servicer if such Monthly Advance or
Servicing Advance would, if made, be, in the Servicer’s reasonable judgment,
nonrecoverable. The determination by the Servicer that it has made a
nonrecoverable Monthly Advance or Servicing Advance, or that any proposed
Monthly Advance or Servicing Advance would be a nonrecoverable advance, shall
be
evidenced by an Officer’s Certificate of the Servicer delivered to the Master
Servicer and the NIMS Insurer.
22
Section
3.05 Establishment
of and Deposits to Escrow Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan constituting Escrow Payments separate and apart from any of its
own funds and general assets and shall establish and maintain one or more Escrow
Accounts, in the form of time deposit or demand accounts, titled “Option One
Mortgage Corporation in trust for U.S. Bank National Association, as Trustee
for
SASCO 2006-BC6.” The Escrow Accounts shall be Eligible Deposit Accounts
established with an Eligible Institution in a manner that shall provide maximum
available insurance thereunder. Funds deposited in the Escrow Account may be
drawn on by the Servicer in accordance with Section 3.06. The creation of any
Escrow Account shall be evidenced by a letter agreement in the form of Exhibit
C. Not later than 30 days after the Closing Date, a copy of such certification
or letter agreement shall be furnished to the Master Servicer and the NIMS
Insurer and, upon request, to any subsequent owner of the Mortgage
Loans.
The
Servicer shall deposit in the Escrow Account or Accounts on a daily basis,
on or
prior to the Second Business Day following receipt thereof and retain therein
(i)
all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of this
Agreement; and
(ii)
all
amounts representing Insurance Proceeds or Condemnation Proceeds that are to
be
applied to the restoration or repair of any Mortgaged Property.
The
Servicer shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 3.06.
The
Servicer shall retain any interest paid on funds deposited in the Escrow Account
by the depository institution, other than interest on escrowed funds required
by
law to be paid to the Mortgagor. Additionally, any other benefit derived from
the Escrow Account associated with the receipt, disbursement and accumulation
of
principal, interest, taxes, hazard insurance, mortgage insurance, etc. shall
accrue to the benefit of the Servicer. To the extent required by law, the
Servicer shall pay interest on escrowed funds to the Mortgagor notwithstanding
that the Escrow Account may be non-interest bearing or that interest paid
thereon is insufficient for such purposes.
Section
3.06 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account or Accounts may be made by the Servicer
only:
(i)
to
effect
payments of ground rents, taxes, assessments, water rates, sewer rents, mortgage
insurance premiums, condominium charges, fire and hazard insurance premiums
or
other items constituting Escrow Payments for the related Mortgage;
(ii)
to
refund
to any Mortgagor any funds found to be in excess of the amounts required under
the terms of the related Mortgage Loan;
23
(iii)
as
permitted by applicable state law, for transfer to the Custodial Account and
application to reduce the principal balance of the Mortgage Loan in accordance
with the terms of the related Mortgage and Mortgage Note;
(iv)
to
pay to
the Servicer, or any Mortgagor to the extent required by law, any interest
paid
on the funds deposited in the Escrow Account;
(v)
for
application to restore or repair the Mortgaged Property in accordance with
Section 3.07;
(vi)
to
reimburse itself for any Servicing Advances made with respect to Escrow Payments
for a Mortgage Loan or the related Mortgaged Properties;
(vii)
to
withdraw any funds deposited into the Escrow Account inadvertently in error;
and
(viii)
to
clear
and terminate the Escrow Account on the termination of this
Agreement.
The
Servicer will be responsible for the administration of the Escrow Accounts
and
will be obligated to make Servicing Advances to the Escrow Account in respect
of
its obligations under this Section 3.06, reimbursable from the Escrow Accounts
or Custodial Account to the extent not collected from the related Mortgagor,
anything to the contrary notwithstanding, when and as necessary to avoid the
lapse of insurance coverage on the Mortgaged Property, or which the Servicer
knows, or in the exercise of the required standard of care of the Servicer
hereunder should know, is necessary to avoid the loss of the Mortgaged Property
due to a tax sale or the foreclosure as a result of a tax lien. If any such
payment has not been made and the Servicer receives notice of a tax lien with
respect to the Mortgage being imposed, the Servicer will, within ten (10)
Business Days of such notice, advance or cause to be advanced funds necessary
to
discharge such lien on the Mortgaged Property.
Section
3.07 Restoration
of Mortgaged Property.
The
Servicer need not obtain the approval of the Master Servicer prior to releasing
any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to the restoration or repair of the Mortgaged Property if such release is in
accordance with Accepted Servicing Practices. At a minimum, with respect to
claims of $10,000 or more, the Servicer shall comply with the following
conditions in connection with any such release of Insurance Proceeds or
Condemnation Proceeds:
(i)
the
Servicer shall receive satisfactory independent verification of completion
of
repairs and issuance of any required approvals with respect
thereto;
(ii)
the
Servicer shall take all steps necessary to preserve the priority of the lien
of
the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’ and materialmen’s liens.
24
(iii)
the
Servicer shall verify that the Mortgage Loan is not 60 or more days delinquent;
and
(iv)
pending
repairs or restoration, the Servicer shall place the Insurance Proceeds or
Condemnation Proceeds in the Escrow Account.
With
respect to claims of less than $10,000, the Servicer shall comply with the
following conditions in connection with any such release of Insurance Proceeds
or Condemnation Proceeds:
(v)
the
related Mortgagor shall provide an affidavit verifying the completion of repairs
and issuance of any required approvals with respect thereto;
(vi)
the
Servicer shall verify the total amount of the claim with the applicable
insurance company; and
(vii)
pending
repairs or restoration, the Servicer shall place the Insurance Proceeds or
Condemnation Proceeds in the Escrow Account. If the Trustee is named as an
additional loss payee, the Servicer is hereby empowered to endorse any loss
draft issued in respect of such a claim in the name of the Trustee.
Section
3.08 Fidelity
Bond and Errors and Omissions Insurance.
The
Servicer shall keep in force during the term of this Agreement a Fidelity Bond
and Errors and Omissions Insurance the minimum coverage of which shall be at
least equal to the coverage required by Xxxxxxx Mac in the Xxxxxxx Mac Guide
or
Xxxxxx Xxx in the Xxxxxx Mae Guides (unless a waiver of such requirement has
been obtained by the Servicer from either Xxxxxxx Mac or Xxxxxx Mae). Such
Fidelity Bond and Errors and Omissions Insurance shall be maintained with
recognized insurers, shall be in such form and amount as would permit the
Servicer to be qualified as a Xxxxxx Xxx or Xxxxxxx Mac seller/servicer, and
shall by its terms not be cancelable without thirty days’ prior written notice
to the Master Servicer and the NIMS Insurer. The Servicer shall be deemed to
have complied with this provision if an affiliate of the Servicer has such
errors and omissions and fidelity bond coverage and, by the terms of such
insurance policy or fidelity bond, the coverage afforded thereunder extends
to
the Servicer. The Servicer shall furnish to the Master Servicer and the NIMS
Insurer a copy of each such bond and insurance policy upon their
request.
Section
3.09 Notification
of Adjustments.
With
respect to each Adjustable Rate Mortgage Loan, the Servicer shall adjust the
Mortgage Interest Rate on the related interest rate adjustment date and shall
adjust the Monthly Payment on the related mortgage payment adjustment date,
if
applicable, in compliance with the requirements of applicable law and the
related Mortgage and Mortgage Note. The Servicer shall execute and deliver
any
and all necessary notices required under applicable law and the terms of the
related Mortgage Note and Mortgage regarding the Mortgage Interest Rate and
Monthly Payment adjustments. The Servicer shall promptly, upon written request
therefor, deliver to the Master Servicer such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate
and
implement such adjustments. Upon the discovery by the Servicer or the receipt
of
notice from the Master Servicer that the Servicer has failed to adjust a
Mortgage Interest Rate or Monthly Payment in accordance with the terms of the
related Mortgage Note, the Servicer shall immediately deposit in the Custodial
Account from its own funds the amount of any interest loss or deferral caused
thereby.
25
Section
3.10 Payment
of Taxes, Insurance and Other Charges.
With
respect to each escrowed Mortgage Loan, the Servicer shall maintain accurate
records reflecting the status of ground rents, taxes, assessments, water rates
and other charges which are or may become a lien upon the Mortgaged Property
and
the status of fire and hazard insurance coverage and shall obtain, from time
to
time, all bills for the payment of such charges (including renewal premiums)
and
shall effect payment thereof prior to the applicable penalty or termination
date
and at a time appropriate for securing maximum discounts allowable, employing
for such purpose deposits of the Mortgagor in the Escrow Account which shall
have been estimated and accumulated by the Servicer in amounts sufficient for
such purposes, as allowed under the terms of the Mortgage or applicable
regulations. The Servicer assumes full responsibility for the payment of all
such bills and shall effect payments of all such bills irrespective of the
Mortgagor’s faithful performance in the payment of the same or the making of the
Escrow Payments and shall make advances from its own funds to effect such
payments. With respect to non-escrowed Mortgage Loans, the Servicer shall employ
Accepted Servicing Practices to determine that any such payments are made by
the
Mortgagor at the time they are first to become due and to ensure that the
Mortgaged Property is not subjected to a tax lien as a result of nonpayment
and
that such Mortgaged Property is not left uninsured. The Servicer shall advance
its funds to effect payments on any such delinquent payments to avoid lapse
of
insurance coverage on the Mortgage Property or to avoid the sale or other loss
of the Mortgaged Property to a tax lien. Such advances made by the Servicer
shall be considered Servicing Advances subject to reimbursement pursuant to
Section 3.04 herein.
Section
3.11 Protection
of Accounts.
The
Servicer may transfer the Custodial Account or any Escrow Account to a different
Eligible Institution from time to time; provided
that in
the event the Custodial Account or any Escrow Account is held in a depository
institution or trust company that ceases to be an Eligible Institution, the
Servicer shall transfer such Custodial Account or Escrow Account, as the case
may be, to an Eligible Institution. The Servicer shall give notice to the NIMS
Insurer and the Master Servicer of of any change in the location of the
Custodial Account no later than 30 days after any such transfer is made and
deliver to the Master Servicer and the NIMS Insurer a certification notice
in
the form of Exhibit B or Exhibit C, as applicable, with respect to such Eligible
Institution.
The
Servicer shall bear any expenses, losses or damages sustained by the Trustee
or
the Master Servicer if the Custodial Account and/or the Escrow Account are
not
demand deposit accounts.
Amounts
on deposit in the Custodial Account and the Escrow Account may at the option
of
the Servicer be invested in Eligible Investments; provided
that in
the event that amounts on deposit in the Custodial Account or the Escrow Account
exceed the amount fully insured by the FDIC (the “Insured Amount”), the Servicer
shall be obligated to invest the excess amount over the Insured Amount in
Eligible Investments on the same Business Day as such excess amount becomes
present in the Custodial Account or the Escrow Account. Any such Eligible
Investment shall mature no later than the Business Day immediately preceding
the
related Remittance Date. Any such Eligible Investment shall be made in the
name
of the Servicer in trust for the benefit of the Trustee. All income on or gain
realized from any such Eligible Investment shall be for the benefit of the
Servicer and may be withdrawn at any time by the Servicer. Any losses incurred
in respect of any such investment shall be deposited in the Custodial Account
or
the Escrow Account by the Servicer out of its own funds immediately as
realized.
26
Section
3.12 Title,
Management and Disposition of REO Property.
In
the
event that title to any Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the Trustee (or MERS, as applicable), or in the event the Trustee is
not
authorized or permitted to hold title to real property in the state where the
REO Property is located, or would be adversely affected under the “doing
business” or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an Opinion of Counsel obtained by the Servicer (with a copy
delivered to the Trustee) from any attorney duly licensed to practice law in
the
state where the REO Property is located. The Person or Persons holding such
title other than the Trustee shall acknowledge in writing that such title is
being held as nominee for the Trustee.
The
Servicer shall manage, conserve, protect and operate each REO Property for
the
Trustee solely for the purpose of its prompt disposition and sale. The Servicer,
either itself or through an agent selected by the Servicer, shall manage,
conserve, protect and operate the REO Property in the same manner that it
manages, conserves, protects and operates other foreclosed property for its
own
account, and in the same manner that similar property in the same locality
as
the REO Property is managed. The Servicer shall attempt to sell the same (and
may temporarily rent the same for a period not greater than one year, except
as
otherwise provided below) on such terms and conditions as the Servicer deems
to
be in the best interest of the Trust Fund.
Notwithstanding
anything to the contrary contained in this Section 3.12, in connection with
a
foreclosure or acceptance of a deed in lieu of foreclosure, in the event the
Servicer has reasonable cause to believe that a Mortgaged Property is
contaminated by hazardous or toxic substances or wastes, or if the Master
Servicer or NIMS Insurer otherwise requests, an environmental inspection or
review of such Mortgaged Property to be conducted by a qualified inspector
shall
be arranged by the Servicer. Upon completion of the inspection, the Servicer
shall provide the Master Servicer and NIMS Insurer with a written report of
such
environmental inspection. In the event that the environmental inspection report
indicates that the Mortgaged Property is contaminated by hazardous or toxic
substances or wastes, the Servicer shall not proceed with foreclosure or
acceptance of a deed in lieu of foreclosure. In the event that the environmental
inspection report is inconclusive as to the whether or not the Mortgaged
Property is contaminated by hazardous or toxic substances or wastes, the
Servicer shall not, without the prior approval of both the Master Servicer
and
the NIMS Insurer proceed with foreclosure or acceptance of a deed in lieu of
foreclosure. In such instance, the Master Servicer and/or the NIMS Insurer
shall
be deemed to have approved such foreclosure or acceptance of a deed in lieu
of
foreclosure unless either notifies the Servicer in writing, within three (3)
days after its receipt of written notice of the proposed foreclosure or deed
in
lieu of foreclosure from the Servicer, that it disapproves of the related
foreclosure or acceptance of a deed in lieu of foreclosure. The Servicer shall
be reimbursed for all Servicing Advances made pursuant to this paragraph with
respect to the related Mortgaged Property from the Custodial
Account.
27
In
the
event that the Trust Fund acquires any REO Property in connection with a default
or imminent default on a Mortgage Loan, the Servicer shall dispose of such
REO
Property not later than the end of the third taxable year after the year of
its
acquisition by the Trust Fund unless the Servicer has applied for and received
a
grant of extension from the Internal Revenue Service (and provided a copy of
the
same to the NIMS Insurer) to the effect that, under the REMIC Provisions and
any
relevant proposed legislation and under applicable state law, the applicable
Trust REMIC may hold REO Property for a longer period without adversely
affecting the REMIC status of such REMIC or causing the imposition of a federal
or state tax upon such REMIC. If the Servicer has received such an extension
(and provide a copy of the same to the NIMS Insurer), then the Servicer shall
continue to attempt to sell the REO Property for its fair market value for
such
period longer than three years as such extension permits (the “Extended
Period”). If the Servicer has not received such an extension and the Servicer is
unable to sell REO Property within the period ending 3 months before the end
of
such third taxable year after its acquisition by the Trust Fund or if the
Servicer has received such an extension, and the Servicer is unable to sell
the
REO Property within the period ending three months before the close of the
Extended Period, the Servicer shall, before the end of the three-year period
or
the Extended Period, as applicable, (i) purchase such REO Property at a price
equal to the REO Property’s fair market value, as acceptable to the NIMS Insurer
or (ii) auction the REO Property to the highest bidder (which may be the
Servicer) in an auction reasonably designed to produce a fair price prior to
the
expiration of the three-year period or the Extended Period, as the case may
be.
The Master Servicer shall sign any document or take any other action reasonably
requested by the Servicer which would enable the Servicer, on behalf of the
Trust Fund, to request such grant of extension.
Notwithstanding
any other provisions of this Agreement, no REO Property acquired by the Trust
Fund shall be rented (or allowed to continue to be rented) or otherwise used
by
or on behalf of the Trust Fund in such a manner or pursuant to any terms that
would: (i) cause such REO Property to fail to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code; or (ii) subject any Trust
REMIC to the imposition of any federal income taxes on the income earned from
such REO Property, including any taxes imposed by reason of Sections 860F or
860G(c) of the Code, unless the Servicer has agreed to indemnify and hold
harmless the Trust Fund and the NIMS Insurer with respect to the imposition
of
any such taxes.
The
Servicer shall also maintain on each REO Property hazard insurance with extended
coverage in an amount which is at least equal to the lesser of (i) the maximum
insurable value of the improvements which are a part of such property and (ii)
the outstanding Principal Balance of the Mortgage Loan at the time it becomes
an
REO Property.
28
Each
REO
Disposition shall be carried out by the Servicer at such price and upon such
terms and conditions as the Servicer reasonably determines to be in the best
interest of the Certificateholders and provided the sales price and the related
terms and conditions are results of arm’s-length negotiation. The proceeds of
sale of the REO Property shall be promptly deposited in the Custodial Account.
After the expenses of such disposition shall have been paid, the Servicer shall
pursuant to Section 3.04 apply any remaining proceeds to payment of any
unreimbursed Option One Servicing Fees, Servicing Advances or Monthly Advances
or unpaid Seller Remittance Amount incurred with respect to such REO
Property.
The
Servicer shall withdraw from the Custodial Account funds necessary for the
proper operation, management and maintenance of the REO Property, including
the
cost of maintaining any hazard insurance pursuant to the Xxxxxxx Mac or Xxxxxx
Mae Guides.
Section
3.13 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 4.02, the Servicer shall
furnish by electronic transmission to the Master Servicer and the Credit Risk
Manager and, upon request, the NIMS Insurer on or before the Remittance Date
each month a statement with respect to any REO Property covering the operation
of such REO Property for the previous month and the Servicer’s efforts in
connection with the sale of such REO Property and any rental of such REO
Property incidental to the sale thereof for the previous month. That statement
shall be accompanied by such other information as either the Master Servicer
or
the Credit Risk Manager or, upon request, the NIMS Insurer shall reasonably
request.
Section
3.14 MERS.
(a)
The
Servicer shall take such actions as are necessary to cause the Trustee to be
clearly identified as the owner of each MERS Mortgage Loan on the records of
MERS for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS.
(b)
The
Servicer shall maintain in good standing its membership in MERS. In addition,
the Servicer shall comply with all rules, policies and procedures of MERS,
including the Rules of Membership, as amended, and the MERS Procedures Manual,
as amended.
(c)
With
respect to all MERS Mortgage Loans serviced hereunder, the Servicer shall
promptly notify MERS as to any transfer of beneficial ownership or release
of
any security interest in such Mortgage Loans.
(d)
With
respect to all MERS Mortgage Loans serviced hereunder, the Servicer shall notify
MERS as to any transfer of servicing pursuant to Section 3.15 or Section 9.01
within 10 Business Days of such transfer of servicing. The Servicer shall
cooperate with the Trustee and any successor servicer to the extent necessary
to
ensure that such transfer of servicing is appropriately reflected on the MERS
system.
29
Section
3.15 Waiver
of Prepayment Charges.
Except
as
provided below, the Servicer or any designee of the Servicer shall not waive
any
Prepayment Charge with respect to any Mortgage Loan. If the Servicer or its
designee fails to collect a Prepayment Charge at the time of the related
prepayment of any Mortgage Loan subject to such Prepayment Charge or waives
a
Prepayment Charge other than a waiver pursuant to clause (i), (ii) or (iii)
below of this Section 3.15, the Servicer shall pay to the Trust Fund at such
time (by deposit to the Custodial Account) an amount equal to the amount of
the
Prepayment Charge not collected, provided,
however,
the
Servicer shall not have any obligation to pay the amount of any uncollected
Prepayment Charge under this Section 3.15 if the failure to collect such amount
is the result of inaccurate or incomplete information in the Prepayment Charge
Schedule provided by LBH and which is included as part of the Mortgage Loan
Schedule attached hereto as Exhibit A. The Prepayment Charges listed on the
Prepayment Charge Schedule attached hereto as Exhibit A are a complete, true
and
accurate and may be relied on by the Servicer in its calculation of Prepayment
Charges. If the Prepayment Charge data set forth on Exhibit A is incorrect,
then
the Servicer shall have no liability for any loss resulting from calculation
of
Prepayment Charges using the data provided. Notwithstanding the above, the
Servicer or its designee may waive (and shall waive, in the case of (ii) and
(iii) below) a Prepayment Charge without paying to the Trust Fund the amount
of
such Prepayment Charge only if the related prepayment is not the result of
a
refinancing by the Servicer or its designee and such waiver (i) relates to
a
defaulted Mortgage Loan or a reasonably foreseeable default, such waiver is
standard and customary in servicing similar mortgage loans to the Mortgage
Loans, and such waiver, in the reasonable judgment of the Servicer, would
maximize recovery of total proceeds from the Mortgage Loan, taking into account
the amount of such Prepayment Charge and the related Mortgage Loan, (ii) relates
to a prepayment charge the collection of which, in the reasonable judgment
of
the Servicer, would be a violation of applicable laws or (iii) notwithstanding
any state or federal law to the contrary, any Prepayment Charge in any instance
when a Mortgage Loan is in foreclosure.
Section
3.16 Servicing
and Administration of PMI Policies.
(a)
The
Servicer shall take all such actions on behalf of the Trustee as are necessary
to service, maintain and administer PMI Policies and to perform and enforce
the
rights under such Policies for its own account. Except as expressly set forth
herein, the Servicer shall have full authority on behalf of the Trust to do
anything it reasonably deems appropriate or desirable in connection with the
servicing, maintenance and administration of the PMI Policies. The Servicer
shall not take, or permit any Subservicer to modify or assume a Mortgage Loan
covered by a PMI Policy or take any other action with respect to such Mortgage
Loan which would result in non-coverage under any PMI Policy of any loss which,
but for the actions of the Servicer or Subservicer, would have been covered
thereunder. If a PMI Insurer fails to pay a claim under a PMI Policy as a result
of breach by the Servicer or a sub-servicer of its obligations hereunder or
under a PMI Policy, the Servicer shall be required to deposit in the Custodial
Account on or prior to the next succeeding Remittance Date an amount equal
to
such unpaid claim from its own funds without any right to reimbursement from
the
Trust Fund. To the extent coverage is available, the Servicer shall keep or
cause to be kept in full force and effect the Insurance Policies for as long
as
any Certificates are outstanding. The Servicer shall cooperate with each PMI
Insurer and shall use its best efforts to furnish all reasonable aid, evidence
and information in the possession of the Servicer to which the Servicer has
access with respect to any Mortgage Loan;
provided, however,
notwithstanding anything to the contrary contained in a PMI Policy, the Servicer
shall not be required to submit any reports to a PMI Insurer until a reporting
date that is at least 15 days after the Servicer has received sufficient loan
level information from LBH to appropriately code its servicing system in
accordance with such PMI Insurer’s requirements.
30
(b)
The
Servicer shall deposit into the Custodial Account pursuant to Section 3.03(xiii)
hereof all Insurance Proceeds received from the PMI Insurer under the terms
of a
PMI Policy.
(c)
Notwithstanding
the provisions of (a) and (b) above, the Servicer shall not take any action
in
regard to any PMI Policy inconsistent with the interests of the Trustee or
the
Certificateholders or with the rights and interests of the Trustee or the
Certificateholders under this Agreement.
(d)
The
Trustee shall furnish the Servicer with any powers of attorney and other
documents (within fifteen (15) days upon request from the Servicer) in form
as
provided to it necessary or appropriate to enable the Servicer to service and
administer any PMI Policy;
provided, however,
that the
Trustee shall not be liable for the actions of the Servicer under such powers
of
attorney.
Section
3.17 Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan hazard insurance
such that all buildings upon the Mortgaged Property are insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage and such
other hazards as are customary in the area where the Mortgaged Property is
located in an amount which is at least equal to the lesser of (i) the
current principal balance of such Mortgage Loan and (ii) the amount
necessary to fully compensate for any damage or loss to the improvements that
are a part of such property on a replacement cost basis, in each case in an
amount not less than the amount as is necessary to avoid the application of
any
co-insurance clause contained in the related hazard insurance
policy.
Any
payments by the Servicer for hazard insurance, other than as set forth in the
last paragraph of this Section 3.17, shall be deemed Servicing Advances,
reimbursable in accordance with Section 3.04(ix), to the extent not collected
from the related Mortgagor. The Servicer will comply in the performance of
this
Agreement with all reasonable rules and requirements of each insurer under
any
such hazard policies. Any amounts to be collected by the Servicer under any
such
policies (other than amounts to be applied to the restoration or repair of
the
property or amounts to be released to the Mortgagor subject to the terms and
conditions of the related Mortgage and Mortgage Note) shall be deposited in
the
Custodial Account, subject to withdrawal pursuant to Section 3.04, if received
in respect of a Mortgage Loan. Any cost incurred by the Servicer in maintaining
any such insurance shall not, for the purpose of calculating distributions
to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
It is understood and agreed that no earthquake or other additional insurance
is
to be required of any Mortgagor other than pursuant to such applicable laws
and
regulations as shall at any time be in force and as shall require such
additional insurance. If the Mortgaged Property or REO Property is at any time
in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards and flood insurance has been
made available, the Servicer will cause to be maintained a flood insurance
policy in respect thereof. Such flood insurance shall be in an amount equal
to
the lesser of (i) the unpaid principal balance of the related Mortgage Loan
and (ii) the maximum amount of such insurance available for the related
Mortgaged Property under the national flood insurance program (assuming that
the
area in which such Mortgaged Property is located is participating in such
program).
31
In
the
event that the Servicer shall obtain and maintain a blanket policy with an
insurer having a General Policy Rating of B:III or better in Best’s Key Rating
Guide (or such other rating that is comparable to such rating) insuring against
hazard losses on all of the Mortgage Loans, it shall conclusively be deemed
to
have satisfied its obligations as set forth in the first two sentences of this
Section 3.17, it being understood and agreed that such policy may contain a
deductible clause, in which case the Servicer shall, in the event that there
shall not have been maintained on the related Mortgaged Property or REO Property
a policy complying with the first two sentences of this Section 3.17, and there
shall have been one or more losses which would have been covered by such policy,
deposit to the Custodial Account from its own funds without right of
reimbursement the amount not otherwise payable under the blanket policy because
of such deductible clause. In connection with its activities as administrator
and servicer of the Mortgage Loans, the Servicer agrees to prepare and present,
on behalf of itself, the Trustee and the Certificateholders, claims under any
such blanket policy in a timely fashion in accordance with the terms of such
policy.
Section
3.18 Realization
Upon Defaulted Mortgage Loans.
(a)
The
Servicer shall, consistent with Accepted Servicing Practices, foreclose upon
or
otherwise comparably convert the ownership of properties securing such of the
Mortgage Loans (including selling any such Mortgage Loans other than converting
the ownership of the related properties) as come into and continue in default
and as to which no satisfactory arrangements can be made for collection of
delinquent payments. The Servicer shall be responsible for all costs and
expenses incurred by it in any such proceedings;
provided, however,
that
such costs and expenses will be recoverable as Servicing Advances by the
Servicer as contemplated in Section 3.04. The foregoing is subject to the
provision that, in any case in which Mortgaged Property shall have suffered
damage from an uninsured cause, the Servicer shall not be required to expend
its
own funds toward the restoration of such Mortgaged Property unless in its
determination such restoration will increase the proceeds of liquidation of
the
related Mortgage Loan after reimbursement to itself for such
expenses.
As
an
alternative to permitting a modification or effectuating a foreclosure or other
conversion of the ownership of a Mortgaged Property, the Master Servicer may,
at
its option and as provided in the Trust Agreement, purchase any Mortgage Loan
that has become one hundred and twenty (120) days or more delinquent in payment;
provided,
however,
that
(i) such Mortgage Loan has not been purchased by the NIMS Insurer pursuant
to
Section 8.03(c) or become subject to a special servicing agreement pursuant
to
Section 8.03(a), (ii) the Master Servicer promptly notifies the Servicer of
its
intention to purchase any such delinquent Mortgage Loan and (iii) the Master
Servicer shall exercise any such option to purchase a Mortgage Loan within
sixty
(60) days after any such Mortgage Loan has become one hundred (120) days
delinquent.
32
(b)
If
the
Servicer determines that it is in the best economic interest of the Trust Fund
and the Certificateholders to sell a Distressed Mortgage Loan rather than
foreclosing, the Servicer may effect such a sale. The net proceeds of such
sale
shall be Liquidation Proceeds.
(c)
Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds, Liquidation
Proceeds, Condemnation Proceeds or REO Disposition Proceeds, in respect of
any
Mortgage Loan, will be applied in the following order of priority: first,
to
unpaid General Servicing Fees; second,
to
reimburse the Servicer or any sub-servicer for any related unreimbursed
Servicing Advances and Monthly Advances pursuant to Section 3.04; third,
to
accrued and unpaid interest on the Mortgage Loan, to the date of the Final
Recovery Determination, or to the Due Date prior to the Distribution Date on
which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and fourth,
as a
recovery of principal of the Mortgage Loan. The portion of the recovery so
allocated to any unpaid Option One Servicing Fee shall be reimbursed to the
Servicer or any Sub-Servicer pursuant to Section 3.04.
Section
3.19 Enforcement
of Due-On-Sale Clauses; Assumption Agreement.
The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or contract of sale, and whether or not the Mortgagor remains or
is
to remain liable under the Mortgage Note and/or the Mortgage), exercise its
rights to accelerate the maturity of such Mortgage Loan under the “due-on-sale”
clause, if any, applicable thereto;
provided, however, that
the
Servicer shall not exercise any such rights if prohibited by law from doing
so.
If the Servicer reasonably believes it is unable under applicable law to enforce
such “due-on-sale” clause, the Servicer will enter into an assumption and
modification agreement from or with the person to whom such property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. The Servicer is also authorized
to
enter into a substitution of liability agreement with such person, pursuant
to
which the original Mortgagor is released from liability and such person is
substituted as the Mortgagor and becomes liable under the Mortgage Note,
provided
that no
such substitution shall be effective unless such person satisfies the
underwriting criteria of the Servicer and has a credit risk rating at least
equal to that of the original Mortgagor. In connection with any assumption
or
substitution, the Servicer shall apply its own underwriting standards,
provided
such
standards follow practices and procedures as shall be normal and usual in its
general mortgage servicing activities and as it applies to other mortgage loans
owned solely by it. The Servicer shall not take or enter into any assumption
and
modification agreement, however, unless (to the extent practicable in the
circumstances) it shall have received confirmation, in writing, of the continued
effectiveness of any applicable hazard insurance policy. Any fee collected
by
the Servicer in respect of an assumption, modification or substitution of
liability agreement shall be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Interest Rate
and the amount of the Monthly Payment) may be amended or modified, except as
otherwise required pursuant to the terms thereof. The Servicer shall notify
the
Master Servicer and the NIMS Insurer that any such substitution, modification
or
assumption agreement has been contemplated by forwarding to each of them a
copy
of such agreement (identifying the Mortgage File to which it relates). The
Servicer shall forward an original copy of such document to the Custodian to
be
held by such Custodian with the other documents related to such Mortgage
Loan.
33
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the Servicer
shall not be deemed to be in default, breach or any other violation of its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or by the terms of the Mortgage Note or any assumption which
the Servicer may be restricted by law from preventing, for any reason whatever.
For purposes of this Section 3.19, the term “assumption” is deemed to also
include a sale (of the Mortgaged Property) subject to the Mortgage that is
not
accompanied by an assumption or substitution of liability agreement.
Section
3.20 Safeguarding
Customer Information.
The
Servicer has implemented and will maintain security measures designed to meet
the objectives of the Interagency Guidelines Establishing Standards for
Safeguarding Customer Information published in final form on February 1,
2001, 66 Fed. Reg. 8616 and the rules promulgated thereunder, as amended from
time to time (the “Guidelines”).
The
Servicer shall promptly provide the Master Servicer, the Trustee and the NIMS
Insurer information reasonably available to it regarding such security measures
upon the reasonable request of the Master Servicer, the Trustee and the NIMS
Insurer which information shall include, but not be limited to, any Statement
on
Auditing Standards (SAS) No. 70 report covering the Servicer’s operations, and
any other audit reports, summaries of test results or equivalent measures taken
by the Servicer with respect to its security measures to the extent reasonably
necessary in order for the Seller to satisfy its obligations under the
Guidelines.
ARTICLE
IV.
PAYMENTS
TO MASTER SERVICER
Section
4.01 Remittances.
On
each
Remittance Date, no later than 3:00 p.m. New York City time, the Servicer shall
remit on a scheduled/scheduled basis by wire transfer of immediately available
funds to the Master Servicer (a) all amounts deposited in the Custodial Account
as of the close of business on the last day of the related Due Period (net
of
charges against or withdrawals from the Custodial Account pursuant to Section
3.04), plus
(b)
all
Monthly Advances, if any, which the Servicer or other Advancing Person is
obligated to make pursuant to Section 4.03, minus
(c)
any
amounts attributable to Principal Prepayments, Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds or REO Disposition Proceeds received after
the
applicable Due Period, which amounts shall be remitted on the following
Remittance Date, together with any additional interest required to be deposited
in the Custodial Account in connection with such Principal Prepayment in
accordance with Section 3.03(b)(vii), and minus
(d) any
amounts attributable to Monthly Payments collected but due on a Due Date or
Due
Dates subsequent to the first day of the month in which such Remittance Date
occurs, which amounts shall be remitted on the Remittance Date next succeeding
the Due Date related to such Monthly Payment.
34
With
respect to any remittance received by the Master Servicer after the Business
Day
on which such payment was due, the Servicer shall pay to the Master Servicer
interest on any such late payment at an annual rate equal to the Prime Rate,
adjusted as of the date of each change, plus three percentage points, but in
no
event greater than the maximum amount permitted by applicable law. Such interest
shall be deposited in the Custodial Account by the Servicer on the date such
late payment is made and shall cover the period commencing with the day
following the Remittance Date and ending with the Business Day on which such
payment is made, both inclusive. Such interest shall be remitted along with
the
distribution payable on the next succeeding Remittance Date. The payment by
the
Servicer of any such interest shall not be deemed an extension of time for
payment or a waiver of any Event of Default by the Master Servicer or the
Trustee.
All
remittances required to be made to the Master Servicer shall be made on a
scheduled/scheduled basis to the following wire account or to such other account
as may be specified by the Master Servicer from time to time:
JPMorgan
Chase Bank, National Association
ABA#
000-000-000
Account
Name: Aurora Loan Services LLC
Master
Servicing Payment Closing Account No.:
Account
No.: 066-611059
Beneficiary:
Aurora Loan Services LLC
For
further credit to: SASCO 2006-BC6
Section
4.02 Statements
to Master Servicer.
(a) Not
later
than the 10th
calendar
day of each month (or if such calendar day is not a Business Day, the
immediately preceding Business Day), the Servicer shall furnish to the Master
Servicer and the NIMS Insurer (a) a monthly remittance advice in the format
set
forth in Exhibit D-1 hereto, a monthly defaulted loan report in the format
set
forth in Exhibit D-2 hereto (or upon such other format mutually agreed to
between the Servicer and the Master Servicer) relating to the period ending
on
the last day of the preceding calendar month and a monthly loan loss report
in
the format set forth in Exhibit D-3 hereto (or such other format mutually agreed
upon by the Servicer and the Master Servicer) and (b) all such information
required pursuant to clause (a) above on a magnetic tape, electronic mail,
or
other similar media reasonably acceptable to the Master Servicer. The format
of
this monthly reporting may be amended from time to time to the extent necessary
to comply with applicable law.
Such
monthly remittance advice shall also be accompanied with a supplemental report
provided to the Master Servicer and the Seller and, upon request, the NIMS
Insurer which includes on an aggregate basis for the previous Due Period (i)
the
amount of claims filed, (ii) the amount of any claim payments made, (iii) the
amount of claims denied or curtailed and (iv) policies cancelled with respect
to
those Mortgage Loans covered by any PMI Policy purchased by a Seller on behalf
of the Trust Fund;
provided, however,
notwithstanding anything to the contrary contained in a PMI Policy, the Servicer
shall not be required to submit any supplemental reports including the foregoing
data with respect to a PMI Policy until a reporting date that is at least 15
days after the Servicer has received sufficient loan level information from
the
Seller to appropriately code its servicing system in accordance with the PMI
Insurer’s requirements.
35
(b) In
addition, no more than 60 days after the end of calendar year December 31,
2006,
the Servicer shall provide, but only with respect to such portion of calendar
year 2006 for which Mortgage Loans are serviced pursuant to this Agreement,
(as
such information becomes reasonably available to the Servicer) to the Master
Servicer and, upon request, the NIMS Insurer such information concerning the
Mortgage Loans and annual remittances to the Master Servicer therefrom as is
necessary for the Securities Administrator to prepare the Trust Fund’s federal
income tax return. Such obligation of the Servicer shall be deemed to have
been
satisfied to the extent that substantially comparable information shall be
provided by the Servicer (or successor servicer) to the Master Servicer and
the
Trustee and, upon request, the NIMS Insurer pursuant to any requirements of
the
Code as from time to time are in force. The Servicer shall also provide, but
only with respect to such portion of calendar year 2006 for which Mortgage
Loans
are serviced pursuant to this Agreement, such information reasonably available
to it as may be requested by the Securities Administrator and required for
the
completion of any tax reporting responsibility of the Securities Administrator
within such reasonable time frame as shall enable the Securities Administrator
to timely file each Schedule Q (or other applicable tax report or return)
required to be filed by it.
(c) The
Servicer shall promptly notify the Trustee, the NIMS Insurer, the Securities
Administrator, the Master Servicer and the Depositor (i) of any legal
proceedings pending against the Servicer of the type described in Item 1117
(§
229.1117) of Regulation AB and (ii) if the Servicer shall become (but only
to
the extent not previously disclosed to the Securities Administrator, the NIMS
Insurer, the Master Servicer and the Depositor) at any time an affiliate of
any
of the parties listed on Exhibit I to this Agreement.
If
so
requested by the Trustee, the Securities Administrator, the Master Servicer
or
the Depositor on any date following the date on which information was first
provided to the Trustee, the NIMS Insurer, the Securities Administrator and
the
Depositor pursuant to the preceding sentence, the Servicer shall, within five
Business Days following such request, confirm in writing the accuracy of the
representations and warranties set forth in Section 6.01(k) or, if such a
representation and warranty is not accurate as of the date of such request,
provide reasonable adequate disclosure of the pertinent facts, in writing,
to
the requesting party.
The
Servicer shall provide to the Securities
Administrator, the Trustee, the NIMS Insurer, the Master Servicer and the
Depositor
prompt
notice of the occurrence of any of the following: any event of default under
the
terms of this Agreement, any merger, consolidation or sale of substantially
all
of the assets of the Servicer, the Servicer’s engagement of any Subservicer or
Subcontractor, any material litigation involving the Servicer, and any
affiliation or other significant relationship between the Servicer and other
transaction parties.
36
(d) Not
later
than the tenth calendar day of each month (or if such calendar day is not a
Business Day, the immediately preceding Business Day), the Servicer shall
provide to the Securities Administrator, the Trustee, the NIMS Insurer, the
Master Servicer and the Depositor notice of the occurrence of any material
modifications, extensions or waivers of terms, fees, penalties or payments
relating to the Mortgage Loans during the related Due Period or that have
cumulatively become material over time (Item 1121(a)(11) of Regulation AB)
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.
Section
4.03 Monthly
Advances by Servicer.
On
each
Remittance Date, no later than 3:00 p.m. New York City Time, the Servicer shall
deposit in the Custodial Account from its own funds or from amounts held for
future distribution, or both, an amount equal to the aggregate of all Monthly
Advances relating to Monthly Payments which were due on the Mortgage Loans
during the applicable Due Period and which were Delinquent at the close of
business on the immediately preceding Determination Date. Any amounts held
for
future distribution and so used shall be replaced by the Servicer by deposit
in
the Custodial Account on or before any future Remittance Date if funds in the
Custodial Account on such Remittance Date shall be less than remittances to
the
Master Servicer required to be made on such Remittance Date. The Servicer shall
keep appropriate records of such amounts and will provide such records to the
Master Servicer and the NIMS Insurer upon request. No provision in this
Agreement shall be construed as limiting the Servicer’s right to (i) pass
through late collections on the related Mortgage Loans in lieu of making Monthly
Advances (ii) reimburse itself for such Monthly Advances from late collections
on the related Mortgage Loans or (iii) utilize an Advancing Person (as
defined below).
The
Servicer shall make Monthly Advances through the Distribution Date immediately
preceding the distribution of all Liquidation Proceeds and other payments or
recoveries (including Insurance Proceeds and Condemnation Proceeds) with respect
to the related Mortgage Loans; provided,
however,
the
Servicer shall cease to make Monthly Advances when it deems such advances to
be
Nonrecoverable Advances.
The
Servicer may enter into a facility with any person which provides that such
person (an “Advancing Person”) may fund Monthly Advances required under this
Section 4.03 and/or Servicing Advances, although no such facility shall reduce
or otherwise affect the Servicer’s obligation to fund such Monthly Advances
and/or Servicing Advances. Any Monthly Advances and/or Servicing Advances made
by an Advancing Person shall be reimbursed to the Advancing Person by the
Servicer in the same manner as reimbursements would be made to the Servicer
under Section 3.04 if such Monthly Advances or Servicing Advance were funded
by
the Servicer; provided
that
neither the Master Servicer, the Trustee, the NIMS Insurer or the Trust Fund
shall have any liability or obligation to make any payment to any Advancing
Person, nor shall any of them have any liability for any Monthly Advances and/or
Servicing Advances reimbursed to the Servicer rather than to an Advancing
Person.
37
Section
4.04 Compensating
Interest.
The
Servicer shall be required to deposit in the Custodial Account, and retain
therein with respect to each Principal Prepayment, the Prepayment Interest
Shortfall Amount, if any, for the related Due Period. Such deposit shall be
made
from the Servicer’s own funds, without reimbursement therefor, up to an
aggregate amount for any month equal to the lesser of (i) the aggregate
Prepayment Interest Shortfall Amount for such month or (ii) the aggregate
General Servicing Fees for such month. The Servicer shall not be obligated
to
pay any Prepayment Interest Shortfall Amount with respect to any Relief Act
Reduction or bankruptcy.
Section
4.05 Credit
Reporting.
For
each
Mortgage Loan, in accordance with its current servicing practices, the Servicer
will accurately and fully report its underlying borrower credit files to each
of
the following credit repositories or their successors: Equifax Credit
Information Services, Inc., Trans Union, LLC and Experian Information Solution,
Inc., on a monthly basis in a timely manner. In addition, with respect to any
Mortgage Loan serviced for a Xxxxxx Xxx pool, the Servicer shall transmit full
credit reporting data to each of such credit repositories in accordance with
Xxxxxx Mae Guide Announcement 95-19 (November 20, 1995), a copy of which is
attached hereto as Exhibit G, reporting each of the following statuses, each
month with respect to a Mortgage Loan in a Xxxxxx Xxx pool: New origination,
current, delinquent (30-60-90-days, etc), foreclosed or charged
off.
ARTICLE
V.
GENERAL
SERVICING PROCEDURES
Section
5.01 Servicing
Compensation; Seller Remittance Amount.
As
consideration for servicing the Mortgage Loans subject to this Agreement, the
Servicer shall retain (a) the Option One Servicing Fee for each Mortgage Loan
remaining subject to this Agreement during any month and (b) Ancillary Income.
The Option One Servicing Fee shall be payable monthly.
The
obligation of the Trust Fund to pay the Option One Servicing Fee is limited
as
provided in Section 3.04(iii). The aggregate Option One Servicing Fees for
any
month with respect to the Mortgage Loans shall be reduced by the aggregate
Prepayment Interest Shortfall Amount for such month. The Servicer shall be
obligated to pay the aggregate Prepayment Interest Shortfall Amount for any
month to the extent not covered by the aggregate Option One Servicing Fees
for
such month up to a maximum of the aggregate General Servicing Fees for such
month. The Servicer shall be entitled to recover any unpaid Option One Servicing
Fee and the Seller shall be entitled to recover the Seller Remittance Amount,
to
the extent not remitted, out of Insurance Proceeds, Condemnation Proceeds,
REO
Disposition Proceeds or Liquidation Proceeds to the extent permitted in Section
3.04 and out of amounts derived from the operation and sale of an REO Property
to the extent permitted by Section 3.12.
Additional
servicing compensation in the form of Ancillary Income shall be retained by
the
Servicer only to the extent such fees or charges are received by the Servicer.
The Servicer shall also be entitled pursuant to Section 3.04 and Section 3.06
to
withdraw from the Custodial Account and Escrow Account, respectively, as
additional servicing compensation, interest or other income earned on deposits
therein, subject to Section 3.11.
38
The
Servicer shall be required to pay all expenses incurred by it in connection
with
its servicing activities hereunder and shall not be entitled to reimbursement
thereof except as specifically provided for herein.
Section
5.02 Report
on Attestation of Compliance with Applicable Servicing Criteria.
The
Servicer shall, using its best reasonable efforts, on or before March
1st,
but in
no event later than March 15th,
of each
calendar year, commencing in 2007, at its own expense, cause a firm of
independent public accountants (who may also render other services to Servicer),
which is a member of the American Institute of Certified Public Accountants,
to
furnish to the Seller, the NIMS Insurer, the Trustee, the Depositor, the
Securities Administrator and the Master Servicer (i) year-end audited (if
available) financial statements of the Servicer and (ii) a report to the effect
that such firm attests to, and reports on, the assessment made by such asserting
party pursuant to Section 5.04 below, which report shall be made in accordance
with standards for attestation engagements issued or adopted by the Public
Company Accounting Oversight Board. In addition, the Servicer shall, using
its
best reasonable efforts, on or before March 1st,
but in
no event later than March 15th,
of each
calendar year, commencing in 2007, at its own expense, furnish to the Seller,
the NIMS Insurer, the Trustee, the Depositor, the Securities Administrator
and
Master Servicer a report meeting the requirements of clause (ii) above regarding
the attestation of any Subservicer or Subcontractor which is “participating in
the servicing function” within the meaning of Item 1122 of Regulation
AB.
Section
5.03 Annual
Officer’s Certificate.
(a)
The
Servicer shall, using its best reasonable efforts, on or before March
1st,
but in
no event later than March 15th,
of each
calendar year, commencing in 2007, at its own expense, will deliver to the
Seller, the NIMS Insurer, the Trustee, the Depositor, the Securities
Administrator and the Master Servicer with respect to the period ending on
the
immediately preceding December 31, a Servicing Officer’s certificate in the form
of Exhibit J hereto, stating, as to each signer thereof, that (i) a review
of
the activities of the Servicer during such preceding calendar year (or
applicable portion thereof) and of its performance under this Agreement for
such
period has been made under such Servicing Officer’s supervision and (ii) to the
best of such officers’ knowledge, based on such review, the Servicer has
fulfilled all its obligations under this Agreement in all material respects
throughout such year (or applicable portion thereof), or, if there has been
a
failure to fulfill any such obligation in any material respect, specifically
identifying each such failure known to such Servicing Officer and the nature
and
status thereof including the steps being taken by the Servicer to remedy such
default.
(b)
For
so
long as a certificate under the Xxxxxxxx-Xxxxx Act of 2002, as amended,
(“Xxxxxxxx-Xxxxx”) is required to be given on behalf of the Trust Fund, on or
before March 1st,
but in
no event later than March 15th
of each
calendar year, (or if not a Business Day, the immediately preceding Business
Day), beginning with March 1, 2007, a Servicing Officer shall execute and
deliver an Officer’s Certificate to the Master Servicer, the Trustee, the
Depositor and the Securities Administrator for the benefit of the Trust Fund
and
the Master Servicer, the Trustee, the Depositor and the Securities Administrator
and their officers, directors and affiliates, in the form of Exhibit F
hereto.
39
(c) The
Servicer shall indemnify and hold harmless the Seller, the NIMS Insurer, the
Trustee, the Master Servicer, the Depositor, the Securities Administrator and
their respective officers, directors, agents and affiliates from and against
any
losses, damages, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments and other costs and expenses arising out of or based
upon a breach by the Servicer or any of its officers, directors, agents or
affiliates of its obligations under this Section 5.03 or the negligence, bad
faith or willful misconduct of the Servicer in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Master Servicer and/or the Depositor, then the Servicer agrees
that
it shall contribute to the amount paid or payable by the Master Servicer and/or
the Depositor as a result of the losses, claims, damages or liabilities of
the
Master Servicer and/or the Depositor in such proportion as is appropriate to
reflect the relative fault of the Master Servicer and/or the Depositor on the
one hand and the Servicer on the other in connection with a breach of the
Servicer’s obligations under this Section 5.03 or the Servicer’s negligence, bad
faith or willful misconduct in connection therewith.
Section
5.04 Report
on Assessment of Compliance with Applicable Servicing Criteria.
The
Servicer shall, using its best reasonable efforts, on or before March
1st,
but in
no event later than March 15th,
of each
calendar year, commencing in 2007, the Servicer shall deliver to the Seller,
the
Trustee, the NIMS Insurer, the Master Servicer, the Depositor and the Securities
Administrator a report regarding its assessment of compliance with the servicing
criteria identified in Exhibit H attached hereto, as of and for the calendar
year of the trust (which, unless otherwise identified to the Servicer in
writing, shall be the calendar year) for the year prior to the year of delivery
of the report, with respect to asset-backed security transactions taken as
a
whole and that are backed by the same type of asset type backing such
asset-backed securities. Each such report shall include (a) a statement of
the
party’s responsibility for assessing compliance with the servicing criteria
applicable to such party, (b) a statement that such party used the criteria
identified in Item 1122(d) of Regulation AB (§ 229.1122(d)) to assess compliance
with the applicable servicing criteria, (c) disclosure of any material instance
of noncompliance identified by such party, and (d) a statement that a registered
public accounting firm has issued an attestation report on such party’s
assessment of compliance with the applicable servicing criteria, which report
shall be delivered by the Servicer as provided in Section 5.02.
40
ARTICLE
VI.
REPRESENTATIONS,
WARRANTIES
AND
AGREEMENTS
Section
6.01 Representations,
Warranties and Agreements of the Servicer.
The
Servicer, as a condition to the consummation of the transactions contemplated
hereby, hereby makes the following representations and warranties to the Seller,
the Depositor, the Trustee and the Master Servicer as of the Closing
Date:
(a)
Due
Organization and Authority.
The
Servicer is a corporation duly organized, validly existing and in good standing
under the laws of the State of California and has all licenses necessary to
carry on its business as now being conducted and is licensed, qualified and
in
good standing in each state where a Mortgaged Property is located if the laws
of
such state require licensing or qualification in order to conduct business
of
the type conducted by the Servicer, and in any event the Servicer is in
compliance with the laws of any such state to the extent necessary to ensure
the
enforceability of the terms of this Agreement; the Servicer has the full power
and authority to execute and deliver this Agreement and to perform in accordance
herewith; the execution, delivery and performance of this Agreement (including
all instruments of transfer to be delivered pursuant to this Agreement) by
the
Servicer and the consummation of the transactions contemplated hereby have
been
duly and validly authorized; this Agreement evidences the valid, binding and
enforceable obligation of the Servicer and all requisite action has been taken
by the Servicer to make this Agreement valid and binding upon the Servicer
in
accordance with its terms;
(b)
Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer;
(c)
No
Conflicts.
Neither
the execution and delivery of this Agreement, the acquisition of the servicing
responsibilities by the Servicer or the transactions contemplated hereby, nor
the fulfillment of or compliance with the terms and conditions of this
Agreement, will conflict with or result in a breach of any of the terms,
conditions or provisions of the Servicer’s organizational documents or any legal
restriction or any agreement or instrument to which the Servicer is now a party
or by which it is bound, or constitute a default or result in an acceleration
under any of the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Servicer or its property
is
subject, or impair the ability of the Servicer to service the Mortgage Loans,
or
impair the value of the Mortgage Loans;
(d)
Ability
to Perform.
The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(e)
No
Litigation Pending.
There
is no action, suit, proceeding or investigation pending (or known to be
contemplated) or threatened against the Servicer or any Subservicer which,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties
or
assets of the Servicer or any Subservicer, or in any material impairment of
the
right or ability of the Servicer or any Subservicer to carry on its business
substantially as now conducted, or in any material liability on the part of
the
Servicer or any Subservicer, or which would draw into question the validity
of
this Agreement or of any action taken or to be taken in connection with the
obligations of the Servicer contemplated herein, or which would be likely to
impair materially the ability of the Servicer to perform under the terms of
this
Agreement;
41
(f)
No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Servicer
of
or compliance by the Servicer with this Agreement;
(g)
Ability
to Service.
The
Servicer is an approved seller/servicer of conventional residential mortgage
loans for Xxxxxx Xxx and Xxxxxxx Mac, with the facilities, procedures and
experienced personnel necessary for the sound servicing of mortgage loans of
the
same type as the Mortgage Loans. The Servicer is in good standing to service
mortgage loans for Xxxxxx Mae and Xxxxxxx Mac. The Servicer is a member in
good
standing of the MERS system, if applicable;
(h)
No
Untrue Information.
Neither
this Agreement nor any statement, report or other document furnished or to
be
furnished by the Servicer pursuant to this Agreement or in connection with
the
transactions contemplated hereby contains any untrue material statement of
fact
or omits to state a material fact necessary to make the statements contained
therein not misleading;
(i)
No
Commissions to Third Parties.
The
Servicer has not dealt with any broker or agent or anyone else who might be
entitled to a fee or commission in connection with this transaction other than
the Seller; and
(j)
Fair
Credit Reporting Act.
The
Servicer has fully furnished, in accordance with the Fair Credit Reporting
Act
and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information Company (three of the credit repositories) on
a
monthly basis.
(k)
Additional
Representations and Warranties of the Servicer.
Except
as disclosed in writing to the Seller, the Master Servicer, the Depositor and
the Trustee prior to the Closing Date: (i)
the Servicer is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any other
securitization due to any act or failure to act of the Servicer; (ii)
the
Servicer has not been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; (iii) no
material noncompliance
with the applicable servicing criteria with respect to other securitizations
of
residential mortgage loans involving the Servicer as servicer
has been disclosed or reported by the Servicer; (iv) no material
changes to the Servicer’s policies or procedures with respect to the servicing
function it will perform under this Agreement for mortgage loans of a type
similar to the Mortgage Loans
have occurred during the three-year period immediately preceding the Closing
Date; (v) there are no aspects of the Servicer’s financial condition that could
have a material adverse effect on the performance by the
Servicer of its servicing obligations under this Agreement
and (vi) there are no affiliations, relationships or transactions relating
to
the Servicer or any Subservicer with any party listed on Exhibit I hereto.
42
Section
6.02 Remedies
for Breach of Representations and Warranties of the Servicer.
It
is
understood and agreed that the representations and warranties set forth in
Section 6.01 shall survive the engagement of the Servicer to perform the
servicing responsibilities as of the Closing Date hereunder and the delivery
of
the Servicing Files to the Servicer and shall inure to the benefit of the
Seller, the Depositor, the Master Servicer and the Trustee. Upon discovery
by
any of the Servicer, the Master Servicer, the Depositor, the NIMS Insurer or
the
Seller of a breach of any of the foregoing representations and warranties which
materially and adversely affects the ability of the Servicer to perform its
duties and obligations under this Agreement or otherwise materially and
adversely affects the value of the Mortgage Loans, the Mortgaged Property,
the
priority of the security interest on such Mortgaged Property or the interest
of
the Seller, the Depositor, the Master Servicer or the NIMS Insurer, the party
discovering such breach shall give prompt written notice to the
others.
Within
60
days of (or, in the case of any breach of a representation or warranty set
forth
in Section 6.01(k), 5 days) the earlier of either discovery by or notice to
the
Servicer of a breach of a representation or warranty set forth in Section 6.01
which materially and adversely affects the ability of the Servicer to perform
its duties and obligations under this Agreement or otherwise materially and
adversely affects the value of the Mortgage Loans, the Mortgaged Property or
the
priority of the security interest on such Mortgaged Property, the Servicer
shall
use its best efforts promptly to cure such breach in all material respects
and,
if such breach cannot be cured, the Servicer shall, at the option of the
Trustee’s, the Master Servicer’s or the NIMS Insurer’s option, assign the
Servicer’s rights and obligations under this Agreement (or respecting the
affected Mortgage Loans) to a successor servicer selected by the Master Servicer
with the prior consent and approval of the NIMS Insurer. Such assignment shall
be made in accordance with Section 9.01 and 9.02.
In
addition, the Servicer shall indemnify the Seller, the Master Servicer, the
NIMS
Insurer, the Depositor and the Trustee (and each of their respective directors,
officers, employees and agents) and the Trust Fund, and hold each of them
harmless against any Costs resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach of the
Servicer’s representations and warranties contained in this Agreement. It is
understood and agreed that the remedies set forth in this Section 6.02
constitute the sole remedies of the Seller, the Master Servicer, the Depositor,
the NIMS Insurer and the Trustee hereunder respecting a breach of the foregoing
representations and warranties.
Any
cause
of action against the Servicer relating to or arising out of the breach of
any
representations and warranties made in Section 6.01 shall accrue upon (i)
discovery of such breach by the Servicer or notice thereof by the Seller, the
Master Servicer, the NIMS Insurer or the Depositor to the Servicer, (ii) failure
by the Servicer to cure such breach within the applicable cure period, and
(iii)
demand upon the Servicer by the Seller, the Depositor, the Master Servicer
or
the NIMS Insurer for compliance with this Agreement.
43
Section
6.03 Additional
Indemnification by the Servicer; Third Party Claims.
(a)
The
Servicer shall indemnify the Seller, the Depositor, the Trustee, the Master
Servicer, the NIMS Insurer, the Trust Fund and each of their respective
directors, officers, employees and agents and the Trust Fund and shall hold
each
of them harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any
other
costs, fees and expenses that any of them may sustain arising out of or based
upon:
(A) any
failure by the Servicer, any Subservicer or any Subcontractor to deliver any
information, report, certification, accountants’ letter or other material when
and as required under this Agreement, including any report under Sections 5.02,
5.03 or 5.04 or any failure by the Servicer to identify pursuant to Section
7.04(c) any Subcontractor that is “participating in the servicing function”
within the meaning of Item 1122 of Regulation AB;
(B) the
failure of the Servicer to perform its duties and service the Mortgage Loans
in
material compliance with the terms of this Agreement or
(C) the
failure of the Servicer to cause any event to occur or not to occur which would
have occurred or would not have occurred, as applicable, if the Servicer were
applying Accepted Servicing Practices under this Agreement.
In
the
case of any failure of performance described in clause (a)(A) of this Section
6.03, the Servicer shall promptly reimburse the Trustee, the Master Servicer
or
the Depositor, as applicable, and each Person, including, but not limited to
the
Securities Administrator, responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to the
transaction relating to this Agreement, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to this 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.
The
Servicer shall immediately notify the Seller, the Depositor, the Master
Servicer, the Trustee, the NIMS Insurer or any other relevant party if a claim
is made by a third party with respect to this Agreement or the Mortgage Loans,
assume (with the prior written consent of the indemnified party in the event
of
an indemnified claim) the defense of any such claim and pay all expenses in
connection therewith, including counsel fees, promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or any other
party in respect of such claim and follow any written instructions received
from
such indemnified party in connection with such claim. Subject to the Servicer’s
indemnification pursuant to Section 6.02, or the failure of the Servicer to
service and administer the Mortgage Loans in material compliance with the terms
of this Agreement, the Trust Fund shall indemnify the Servicer and hold the
Servicer harmless against any and all Costs that the Servicer may sustain in
connection with any legal action relating to this Agreement, the Certificates
or
the origination or Servicing of the Mortgage Loans by any prior owner or
servicer, other than any Costs incurred by reason of the Servicer’s willful
misfeasance, bad faith or negligence in the performance of duties hereunder
or
by reason of its reckless disregard of obligations and duties
hereunder.
44
Section
6.04 Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the negligent
performance by the Servicer of its duties and obligations set forth herein,
the
Servicer shall indemnify the Holder of the related Residual Certificate, the
NIMS Insurer, the Master Servicer, the Trustee, the Securities Administrator
and
the Trust Fund (and each of their respective directors, officers, employees
and
agents) against any and all losses, claims, damages, liabilities or expenses
(“Losses”) resulting from such negligence; provided,
however,
that the
Servicer shall not be liable for any such Losses attributable to the action
or
inaction of the Trustee, the Depositor, the Master Servicer or the Holder of
such Residual Certificate, as applicable, nor for any such Losses resulting
from
misinformation provided by the Holder of such Residual Certificate on which
the
Servicer has relied. The foregoing shall not be deemed to limit or restrict
the
rights and remedies of the Holder of such Residual Certificate, the Trustee,
the
NIMS Insurer or the Trust Fund, now or hereafter existing at law or in equity
or
otherwise. Notwithstanding the foregoing, however, in no event shall the
Servicer have any liability (1) for any action or omission that is taken in
accordance with and in compliance with the express terms of, or which is
expressly permitted by the terms of, this Agreement, (2) for any Losses other
than arising out of a negligent performance by the Servicer of its duties and
obligations set forth herein, and (3) for any special or consequential damages
to Certificateholders (in addition to payment of principal and interest on
the
Certificates).
Section
6.05 Reporting
Requirements of the Commission and Indemnification.
Notwithstanding
any other provision of this Agreement, the Servicer acknowledges and agrees
that
the purpose of Sections 4.02(c) and (d), 5.02, 5.03, 5.04, 6.01(k), 6.03 and
7.04 of this Agreement is to facilitate compliance by the Trustee, the
Securities Administrator, the Master Servicer and the Depositor with the
provisions of Regulation AB. Therefore, the Servicer agrees that (a) the
obligations of the Servicer hereunder shall be interpreted in such a manner
as
to accomplish that purpose, (b) such obligations may change over time due to
interpretive advice or guidance of the Commission, convention or consensus
among
active participants in the asset-backed securities markets, advice of counsel,
or otherwise in respect of the requirements of Regulation AB, (c) the Servicer
shall agree to enter into such mutually agreeable amendments to this Agreement
as may be necessary, in the judgment of the Depositor, the Master Servicer
and
their respective counsel, to comply with such interpretive advice or guidance,
convention, consensus, advice of counsel, or otherwise, (d) the Servicer shall
otherwise comply with requests made by the Trustee, the Securities
Administrator, the Master Servicer or the Depositor for delivery of additional
or different information available to the Servicer as such parties may determine
in good faith is necessary to comply with the provisions of Regulation AB and
(e) the
Servicer shall (i) agree to such modifications and enter into such amendments
to
this Agreement as may be necessary, in the judgment of the Depositor, the Master
Servicer and their respective counsel, to comply with any such clarification,
interpretive guidance, convention or consensus and (ii) promptly
upon request provide to the Depositor for inclusion in any periodic report
required to be filed under the Securities Exchange Act of 1934, as amended
(the
“Exchange Act”), such items of information available to the Servicer regarding
this Agreement and matters related to the Servicer, (collectively, the “Servicer
Information”), provided
that
such
information shall be required to be provided by the Servicer only to the extent
that such shall be reasonably determined by the Depositor and its counsel to
be
necessary or advisable to comply with the provisions of Regulation
AB.
45
The
Servicer hereby agrees to indemnify and hold harmless the Depositor, the Master
Servicer, the Securities Administrator, their respective officers and directors
and each person, if any, who controls the Depositor, the Securities
Administrator or Master Servicer within the meaning of Section 15 of the
Securities Act of 1933, as amended (the “Act”), or Section 20 of the Exchange
Act, from and against any and all losses, claims, expenses, damages or
liabilities to which the Depositor, the Master Servicer, their respective
officers or directors and any such controlling person may become subject under
the Act or otherwise, as and when such losses, claims, expenses, damages or
liabilities are incurred, insofar as such losses, claims, expenses, damages
or
liabilities (or actions in respect thereof) arise out of or are based upon
any
untrue statement or alleged untrue statement of any material fact contained
in
the Servicer Information or arise out of, or are based upon, the omission or
alleged omission to state therein any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will reimburse
the
Depositor, the Master Servicer, the Securities Administrator, their respective
officers and directors and any such controlling person for any legal or other
expenses reasonably incurred by it or any of them in connection with
investigating or defending any such loss, claim, expense, damage, liability
or
action, as and when incurred; provided,
however,
that
the Servicer shall be liable only insofar as such untrue statement or alleged
untrue statement or omission or alleged omission relates solely to the
information in the Servicer Information furnished to the Depositor, the
Securities Administrator or Master Servicer by or on behalf of the Servicer
specifically in connection with this Agreement.
ARTICLE
VII.
THE
SERVICER
Section
7.01 Merger
or Consolidation of the Servicer.
The
Servicer shall keep in full effect its existence, rights and franchises as
a
corporation, and shall obtain and preserve its qualification to do business
as a
foreign entity in each jurisdiction in which such qualification is or shall
be
necessary to protect the validity and enforceability of this Agreement or any
of
the Mortgage Loans and to perform its duties under this Agreement.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, or any Person succeeding to the business of the Servicer,
shall, with the prior written consent of the Master Servicer and the NIMS
Insurer, be
the
successor of the Servicer hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding;
provided, however,
that the
successor or surviving Person shall be an institution (i) having a net worth
of
not less than $15,000,000, and (ii) which is acceptable to the NIMS Insurer
and
is a Xxxxxxx Mac-approved or Xxxxxx Mae-approved servicer in good
standing.
46
Section
7.02 Limitation
on Liability of the Servicer and Others.
Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Seller, the Master Servicer, the
NIMS Insurer, the Depositor or the Trustee hereunder for any action taken or
for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment;
provided, however,
that
this provision shall not protect the Servicer or any such person against any
breach of warranties or representations made herein, or failure to perform
its
obligations in strict compliance with any standard of care set forth in this
Agreement, or any liability which would otherwise be imposed by reason of any
breach of the terms and conditions of this Agreement. The Servicer and any
director, officer, employee or agent of the Servicer may rely in good faith
on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Servicer shall not be
under
any obligation to appear in, prosecute or defend any legal action which is
not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement and which in its opinion may involve it in any expense or
liability;
provided, however,
that the
Servicer may, with the consent of the NIMS Insurer and the Master Servicer,
undertake any such action which it deems necessary or desirable in respect
of
this Agreement and the rights and duties of the parties hereto. In such event,
the Servicer shall be entitled to reimbursement from the Trust Fund for the
reasonable legal expenses and costs of such action.
Section
7.03 Limitation
on Resignation and Assignment by the Servicer.
The
Seller has entered into this Agreement with the Servicer in reliance upon the
independent status of the Servicer, and the representations as to the adequacy
of its servicing facilities, plant, personnel, records and procedures, its
integrity, reputation and financial standing, and the continuance thereof.
Therefore, the Servicer shall neither assign its rights under this Agreement
or
the servicing hereunder nor delegate its duties hereunder or any portion
thereof, or sell or otherwise dispose of all or substantially all of its
property or assets without, in each case, the prior written consent of the
Seller, the Master Servicer and the NIMS Insurer, which consent shall not be
unreasonably withheld; provided
that in
each case, there must be delivered to the Seller, the Master Servicer, the
NIMS
Insurer and the Trustee a letter from each Rating Agency to the effect that such
transfer of servicing or sale or disposition of assets will not result in a
qualification, withdrawal or downgrade of the then-current rating of any of
the
Certificates or of the NIM Securities.
Notwithstanding the foregoing, the Servicer, without the consent of the
Seller,
the Master Servicer and
the NIMS
Insurer,
may retain third-party contractors to perform certain servicing and loan
administration functions, including without limitation, hazard insurance
administration, tax payment and administration, flood certification and
administration, collection services and similar functions;
provided, however,
that the retention of such contractors by Servicer shall not limit the
obligation of the Servicer to service the Mortgage Loans pursuant to the terms
and conditions of this Agreement.
47
The
Servicer shall not resign from the obligations and duties hereby imposed on
it
except by mutual consent of the Seller, the Master Servicer and the NIMS Insurer
or upon the determination that its duties hereunder are no longer permissible
under applicable law and such incapacity cannot be cured by the Servicer. Any
such determination permitting the resignation of the Servicer shall be evidenced
by an Opinion of Counsel to such effect delivered to the Seller, the Master
Servicer, the NIMS Insurer and the Trustee which Opinion of Counsel shall be
in
form and substance acceptable to the Seller, the Master Servicer, the NIMS
Insurer and the Trustee. No such resignation shall become effective until a
successor acceptable to the NIMS Insurer shall have assumed the Servicer’s
responsibilities and obligations hereunder in the manner provided in Section
9.01.
Without
in any way limiting the generality of this Section 7.03, in the event that
the
Servicer either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof or sell or
otherwise dispose of all or substantially all of its property or assets, without
the prior written consent of the Seller, the Master Servicer and the NIMS
Insurer, then such parties shall have the right to terminate this Agreement
upon
notice given as set forth in Section 8.01, without any payment of any penalty
or
damages and without any liability whatsoever to the Servicer or any third
party.
Section
7.04 Subservicing
Agreements and Successor Subservicer.
(a)
The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer as servicer under this Agreement
unless the Servicer complies with the provisions of paragraph (b) of this
Section 7.04 and the proposed Subservicer (i) is an institution which is an
approved Xxxxxx Xxx or Xxxxxxx Mac Seller/Servicer as indicated in writing,
(ii)
represents and warrants that it is in compliance with the laws of each state
as
necessary to enable it to perform its obligations under such subservicing
agreement and (iii) is acceptable to the NIMS Insurer. The Servicer shall not
hire or otherwise utilize the services of any Subcontractor, and shall not
permit any Subservicer to hire or otherwise utilize the services of any
Subcontractor, to fulfill any of the obligations of the Servicer as servicer
under this Agreement unless the Servicer complies with the provisions of
paragraph (c) of this Section 7.04.
(b)
The
Servicer shall give prior written notice to the Trustee, the Master Servicer,
the Securities Administrator, the Depositor and the NIMS Insurer of the
appointment of any Subservicer and shall furnish to the Trustee, Master
Servicer, the Securities Administrator, the Depositor and the NIMS Insurer
a
copy of any related subservicing agreement. For purposes of this Agreement,
the
Servicer shall be deemed to have received payments on Mortgage Loans immediately
upon receipt by any Subservicer of such payments. Any such subservicing
agreement shall be acceptable to the NIMS Insurer and be consistent with and
not
violate the provisions of this Agreement. Each subservicing agreement shall
provide that a successor Servicer shall have the option to terminate such
agreement without payment of any fees if the predecessor Servicer is terminated
or resigns. The Servicer shall cause any Subservicer used by the Servicer (or
by
any Subservicer) to comply with the provisions of this Section 7.04 and with
Sections 4.02(c), 5.02, 5.03(a), 5.03(b), 5.04 (and
shall amend, with the consent of the parties hereto, Exhibit H to reflect such
Subservicer's assessment and attestation of compliance with the Servicing
Criteria),
6.01(k)
and 6.03 and Exhibit H of this Agreement to the same extent as if such
Subservicer were the Servicer. The Servicer shall be responsible for obtaining
from each Subservicer and delivering to the Trustee, the NIMS Insurer, the
Master Servicer, the Securities Administrator and the Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
5.03(a), any reports on assessment of compliance and attestation required to
be
delivered by such Subservicer under Sections 5.02 and 5.04 and any certification
required to be delivered under 5.03(b) to the Person that will be responsible
for signing the Sarbanes Certification under Section 5.04 as and when required
to be delivered hereunder.
48
(c)
The
Servicer shall give written notice to the Master Servicer, the Securities
Administrator and the Depositor of the appointment of any Subcontractor and
a
written description (in form and substance satisfactory to the Master Servicer
and the Depositor) of the role and function of each Subcontractor utilized
by
the Servicer or any Subservicer, specifying (A) the identity of each such
Subcontractor, (B) which (if any) of such Subcontractors are Participating
Entities, and (C) which elements of the servicing criteria set forth under
Item
1122(d) of Regulation AB will be addressed in assessments of compliance provided
by each Subcontractor identified pursuant to clause (B) of this
paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Trustee, the NIMS
Insurer, the Securities Administrator, the Master Servicer and the Depositor
to
comply with the provisions of Sections 4.02(c), 5.02, 5.04, 6.01(k) and 6.03
and
Exhibit H of this Agreement to the same extent as if such Subcontractor were
the
Servicer. The Servicer shall be responsible for obtaining from each
Subcontractor and delivering to the Trustee, the NIMS Insurer, the Securities
Administrator, the Master Servicer and the Depositor any assessment of
compliance and attestation required to be delivered by such Subcontractor under
Sections 5.02 and 5.04, in each case as and when required to be delivered.
The
Servicer acknowledges that a Subservicer or Subcontractor that performs services
with respect to mortgage loans involved in this transaction in addition to
the
Mortgage Loans may be determined by the Depositor to be “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB on the
basis of the aggregate balance of such mortgage loans, without regard to whether
such Subservicer or Subcontractor would be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB with respect to the
Mortgage Loans viewed in isolation. In connection with complying with the
requirements set forth in the previous sentence, the Servicer shall (A) respond
as promptly as practicable to any good faith request by the Trustee, the Master
Servicer or the Depositor for information regarding each Subservicer and each
Subcontractor and (B) cause each Subservicer and each Subcontractor with respect
to which the Trustee, the Master Servicer or the Depositor requests delivery
of
an assessment of compliance and accountants’ attestation to deliver such within
the time required under Section 5.04.
(d)
Notwithstanding any subservicing agreement or the provisions of this Agreement
relating to agreements or arrangements between the Servicer and a Subservicer,
Subcontractor or other third party or reference to actions taken through a
Subservicer, a Subcontractor, another third party or otherwise, the Servicer
shall remain obligated and primarily liable to the Trust Fund, the Trustee,
the
Securities Administrator, the Master Servicer, the NIMS Insurer and the
Certificateholders for the servicing and administering of the Mortgage Loans
in
accordance with the provisions hereof without diminution of such obligation
or
liability by virtue of any subservicing, subcontracting or other agreements
or
arrangements or by virtue of indemnification from a Subservicer, Subcontractor
or a third party and to the same extent and under the same terms and conditions
as if the Servicer alone were servicing the Mortgage Loans, including with
respect to compliance with Item 1122 of Regulation AB. The Servicer shall be
entitled to enter into any agreement with a Subservicer, Subcontractor or a
third party for indemnification of the Servicer by such Subservicer,
Subcontractor or third party and nothing contained in the Agreement shall be
deemed to limit or modify such indemnification.
49
Section
7.05 Inspection.
Upon
reasonable advanced notice (which advance notice shall be no less than two
(2)
full Business Days advance notice), the Servicer shall accommodate the Master
Servicer’s and the NIMS Insurer’s access during normal business hours to all
records maintained by the Servicer in respect of its rights and obligations
hereunder and access to officers of the Servicer responsible for such
obligations. Upon request, the Servicer shall furnish to the Master Servicer
and
the NIMS Insurer its most recent publicly available financial statements and
such other information relating to its capacity to perform its obligations
under
this Agreement.
ARTICLE
VIII.
TERMINATION
Section
8.01 Termination
for Cause.
This
Agreement shall be terminable at the option of the Master Servicer or the NIMS
Insurer if any of the following events of default exist on the part of the
Servicer:
(i)
any
failure by the Servicer to remit to the Master Servicer any payment required
to
be made under the terms of this Agreement which continues unremedied for a
period of one Business Day after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been received by the
Servicer from the Master Servicer or the NIMS Insurer; or
(ii)
any
failure by the Servicer to duly perform, within the required time period and
without notice, its obligations to provide any certifications required pursuant
to Sections 5.02, 5.03 or 5.04 (including with respect to such certifications
required to be provided by any Subservicer or Subcontractor pursuant to Section
7.04), which failure continues unremedied for a period of ten (10) days from
the
date of delivery required with respect to such certification; or
50
(iii)
except
with respect to those items listed in clause (ii) above, any failure by the
Servicer to duly perform, within the required time period, without notice or
grace period, its obligations to provide any other information, data or
materials required to be provided hereunder pursuant to Sections 4.02(c),
4.02(d), 6.01(k) and 7.04, including any items required to be included in any
Exchange Act report; or
(iv)
failure
by the Servicer duly to observe or perform in any material respect any other
of
the covenants or agreements on the part of the Servicer set forth in this
Agreement which continues unremedied for a period of 15 days; or
(v)
failure
by the Servicer to maintain its license to do business or service residential
mortgage loans in any jurisdiction, if required by such jurisdiction, where
the
Mortgaged Property is located; or
(vi)
a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, including bankruptcy, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Servicer and such decree or order shall
have
remained in force undischarged or unstayed for a period of 60 days;
or
(vii)
the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Servicer or of or
relating to all or substantially all of its property; or
(viii)
the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency,
bankruptcy or reorganization statute, make an assignment for the benefit of
its
creditors, voluntarily suspend payment of its obligations or cease its normal
business operations for three Business Days; or
(ix)
the
Servicer ceases to meet the qualifications of a Xxxxxx Xxx or Xxxxxxx Mac
seller/servicer; or
(x)
the
Servicer attempts to assign the servicing of the Mortgage Loans or its right
to
servicing compensation hereunder or the Servicer attempts to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof, in each case without complying fully with
the
provisions of Section 7.03; or
(xi)
if
(x)
any of the Rating Agencies reduces or withdraws the rating of any of the
Certificates due to a reason directly attributable to the Servicer or (y) the
Servicer’s residential primary servicer rating for servicing of subprime loans
issued by any of the Rating Agencies is reduced by more than one level from
the
level in effect on the Closing Date.
In
each
and every such case, so long as an event of default shall not have been remedied
within the applicable cure period, in addition to whatever rights the Master
Servicer or the NIMS Insurer may have at law or equity to damages, including
injunctive relief and specific performance, the Master Servicer or the NIMS
Insurer, by notice in writing to the Servicer, and with the consent of the
other
parties, may terminate all the rights and obligations of the Servicer under
this
Agreement and in and to the servicing contract established hereby and the
proceeds thereof.
51
Upon
receipt by the Servicer of such written notice, all authority and power of
the
Servicer under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in a successor servicer appointed by
the
Master Servicer with the consent of the NIMS Insurer. Upon written request
from
the Master Servicer, the Servicer shall prepare, execute and deliver to the
successor servicer, the Trustee or the NIMS Insurer any and all documents and
other instruments, place in such successor’s possession all Servicing Files, and
do or cause to be done all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, including but not limited
to
the transfer and endorsement or assignment of the Mortgage Loans and related
documents, at the Servicer’s sole expense. The Servicer shall cooperate with the
Master Servicer, the NIMS Insurer and such successor in effecting the
termination of the Servicer’s responsibilities and rights hereunder, including
without limitation, the transfer to such successor for administration by it
of
all cash amounts which shall at the time be credited by the Servicer to the
Custodial Account or Escrow Account or thereafter received with respect to
the
Mortgage Loans.
By
a
written notice, the Master Servicer, with the consent of the NIMS Insurer,
or
the NIMS Insurer may waive any default by the Servicer in the performance of
its
obligations hereunder and its consequences. Upon any waiver of a past default,
such default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been remedied for every purpose of this Agreement.
No
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
Section
8.02 Termination
Without Cause.
(a)
This
Agreement shall terminate upon: (i) the later of (a) the distribution of the
final payment or liquidation proceeds on the last Mortgage Loan to the Master
Servicer or Trust Fund, and (b) the disposition of all REO Property acquired
upon foreclosure of the last Mortgage Loan and the remittance of all funds
due
hereunder or (ii) mutual consent of the Servicer and the Master Servicer in
writing, provided
such
termination is also acceptable to the Rating Agencies and the NIMS Insurer.
In
addition, with the prior written consent of the Master Servicer and the NIMS
Insurer, the Seller may terminate this Agreement with respect to all (but not
less than all) of the Mortgage Loans, without cause, provided
that the
Seller gives the Servicer 30 days’ notice prior to any such termination, but in
no event shall such termination occur prior to the Closing Date. Any such notice
of termination shall be in writing and delivered to the Servicer, the Master
Servicer, the Trustee and the NIMS Insurer by registered mail to the address
set
forth in Section 9.03. The Seller and the Servicer shall comply with the
termination procedures set forth in Section 9.01 hereof. All unreimbursed Option
One Servicing Fees, Servicing Advances and Monthly Advances still owing the
Servicer shall be deducted by the Servicer from the final remittance of the
funds to the successor servicer. Should such funds be insufficient to pay for
all unreimbursed Option One Servicing Fees, Servicing Advances or Monthly
Advances, the Seller shall reimburse the Servicer within five (5) days upon
receipt of an invoice from the Servicer without right of reimbursement from
the
Trust Fund. In connection with any termination pursuant to clause (ii) of the
first sentence of this Section 8.02(a), all unreimbursed Option One Servicing
Fees, Servicing Advances and Monthly Advances still owing the Servicer shall
be
paid at the time of such termination by the Trust Fund.
52
Upon
a
termination of the Servicer for cause pursuant to Section 8.01, all unreimbursed
Option One Servicing Fees, Servicing Advances and Monthly Advances still owing
the Servicer shall be paid by the Trust Fund as such amounts are received from
the related Mortgage Loans. In connection with any termination without cause
pursuant to the second sentence of this Section 8.02(a), the Seller or successor
servicer will be responsible for reimbursing the Servicer for all unreimbursed
out-of-pocket Servicing Advances, Monthly Advances and Option One Servicing
Fees
and other reasonable and necessary out-of-pocket costs associated with any
transfer of servicing at the time of such transfer of servicing if, and only
if,
funds in the Collection Account are not sufficient to reimburse the Servicer
for
all such unreimbursed fees and advances. Any invoices received by the Servicer
after termination will be forwarded to the Seller, which such Seller or
successor servicer shall pay within five (5) Business Days upon receipt from
the
Servicer.
(b)
In
the
event that the Servicer decides to terminate its obligations under this
Agreement as set forth in clause (ii) of Section 8.02(a), the Servicer agrees
that it will continue to service the Mortgage Loans beyond the prescribed
termination date until such time as the Master Servicer, using reasonable
commercial efforts, is able to appoint a successor servicer acceptable to the
NIMS Insurer and otherwise meeting the characteristics of Sections 7.01 and
9.01.
Section
8.03 Termination
for Distressed Mortgage Loans.
(a) Subject
to the requirements set forth in this Section 8.03, the Seller may terminate
this Agreement with the prior consent of the NIMS Insurer and the Master
Servicer, with respect to the servicing of those Mortgage Loans that are
determined to be Distressed Mortgage Loans as of the Notice Date and servicing
of such Mortgage Loans shall be transferred to the Special Servicer. The
appointment of a Special Servicer by the Seller and the execution of a special
servicing agreement between the Seller and the Special Servicer shall be subject
to the consent the Master Servicer and the NIMS Insurer and the receipt of
confirmation from the Rating Agencies that the transfer of servicing to the
Special Servicer shall not result in a reduction of any rating previously given
by such Rating Agency to any Certificate or the NIM Securities. Any monthly
fee
paid to the Special Servicer in connection with any Mortgage Loan serviced
by
such Special Servicer shall not exceed one-twelfth of the product of
(a) 0.50% and (b) the outstanding principal balance of such Mortgage Loan.
All unreimbursed Option One Servicing Fees, Servicing Advances and Monthly
Advances owing to the Servicer relating to such Distressed Mortgage Loans shall
be reimbursed and paid to the Servicer upon such transfer to the Special
Servicer.
(b) All
reasonable costs and expenses incurred in connection with a transfer of
servicing to the Special Servicer including, without limitation, the costs
and
expenses of the Trustee or any other Person in appointing a Special Servicer,
or
of transferring the Servicing Files and the other necessary data to the Special
Servicer, shall be paid by the Seller from its own funds without reimbursement.
The Seller shall be responsible for the delivery of all required Transfer
Notices and will send a copy of the Transfer Notice to the Master
Servicer.
53
(c) Notwithstanding
the foregoing provisions of this Section 8.03, the NIMS Insurer may, at its
option, withhold their consent to the transfer of a Distressed Mortgage Loan
to
a Special Servicer and elect to purchase such Distressed Mortgage Loan at a
price equal to its Purchase Price. Prior to such purchase, the Servicer shall
be
required to continue to make Monthly Advances with respect to such Distressed
Mortgage Loan pursuant to Section 4.03; provided,
however,
the
Servicer’s obligation to make such Monthly Advances shall cease when it deems
such Monthly Advances to be nonrecoverable. Any such purchase of a Distressed
Mortgage Loan shall be accomplished by remittance to the Master Servicer for
deposit in the Collection Account established pursuant to Section 4.01 of the
Trust Agreement of the amount of the Purchase Price. The Servicers on behalf
of
the Trustee shall immediately effectuate the conveyance of such Distressed
Mortgage Loan to the NIMS Insurer to the extent necessary, including the prompt
delivery of all Servicing Files and other related documentation to the NIMS
Insurer.
ARTICLE
IX.
MISCELLANEOUS
PROVISIONS
Section
9.01 Successor
to the Servicer.
Simultaneously
with the termination of the Servicer’s responsibilities and duties under this
Agreement (a) pursuant to Sections 6.02, 7.03, 8.01 or 8.02(a)(ii), the Master
Servicer shall (i) within 90 days of the Servicer’s receipt of notice of such
termination, succeed to and assume all of the Servicer’s responsibilities,
rights, duties and obligations under this Agreement (except that the Master
Servicer shall immediately assume all of the obligations of the Servicer to
make
Monthly Advances), or (ii) appoint a successor having the characteristics set
forth in clauses (i) and (ii) of Section 7.01 and which shall succeed to all
rights and assume all of the responsibilities, duties and liabilities of the
Servicer under this Agreement simultaneously with the termination of the
Servicer’s responsibilities, duties and liabilities under this Agreement; or (b)
as a result of termination of the Servicer without cause by the Seller pursuant
to Section 8.02 hereof, the Seller shall appoint a successor having the
characteristics set forth in clauses (i) and (ii) of Section 7.01 and which
shall succeed to all rights and assume all of the responsibilities, duties
and
liabilities of the Servicer under this Agreement simultaneously with the
termination of the Servicer’s responsibilities, duties and liabilities under
this Agreement. Any successor to the Servicer shall be subject to the approval
of the Master Servicer and the NIMS Insurer and, to the extent required by
the
Trust Agreement, shall be a member in good standing of the MERS system (if
any
of the Mortgage Loans are MERS Eligible Mortgage Loans, unless such Mortgage
Loans are withdrawn from MERS and Assignments of Mortgage are recorded in favor
of the Trustee at the expense of the successor servicer). The final approval
of
a successor servicer shall be conditioned upon the receipt by the Trustee,
the
Master Servicer, the NIMS Insurer and the Seller of a letter from each Rating
Agency to the effect that such transfer of servicing will not result in a
qualification, withdrawal or downgrade of the then-current rating of any of
the
Certificates or the NIM Securities. In connection with such appointment and
assumption, the Master Servicer or the Seller, as applicable, may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree, provided,
however, that
no
such compensation shall be in excess of the General Servicing Fee permitted
under this Agreement. In the event that the Servicer’s duties, responsibilities
and liabilities under this Agreement should be terminated pursuant to the
aforementioned sections, the Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of its successor. The resignation or removal of the Servicer pursuant
to the aforementioned sections shall not become effective until a successor
servicer shall be appointed pursuant to this Section 9.01, or until the Master
Servicer succeeds to and assumes all of the Servicer’s responsibilities, rights,
duties and obligations pursuant to this Section 9.01, and shall in no event
relieve the Servicer of the representations and warranties made pursuant to
Section 6.01 and the remedies available to the Trustee, the Master Servicer,
the
NIMS Insurer and the Seller under Section 6.02 and 6.03, it being understood
and
agreed that the provisions of such Sections 6.01, 6.02 and 6.03 shall be
applicable not only to such successor servicer but also to the Servicer
notwithstanding any such resignation or termination of the Servicer, or the
termination of this Agreement. Notwithstanding the foregoing, the Master
Servicer, in its capacity as successor servicer, shall not be responsible for
the lack of information and/or documents that are not transferred to it by
the
Servicer and that it cannot obtain through reasonable efforts.
54
Within
a
reasonable period of time, but in no event longer than 30 days after the
appointment of a successor entity and after due notification to the Servicer,
the Servicer shall prepare, execute and deliver to the successor entity any
and
all documents and other instruments, place in such successor’s possession all
Servicing Files, and do or cause to be done all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, including
but not limited to the transfer of the Mortgage Notes and related documents,
and
the Assignments of Mortgage. The Servicer shall cooperate with the Master
Servicer, the NIMS Insurer or the Seller, as applicable, and such successor
in
effecting the termination of the Servicer’s responsibilities and rights
hereunder and the transfer of servicing responsibilities to the successor
servicer, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by
the Servicer to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
Any
successor servicer appointed as provided herein shall execute, acknowledge
and
deliver to the Trustee, the Servicer, the Master Servicer, the NIMS Insurer
and
the Seller an instrument (i) accepting such appointment, wherein the successor
shall make the representations and warranties set forth in Section 6.01
(including a representation that the successor servicer is a member of MERS,
unless none of the Mortgage Loans are MERS Mortgage Loans or MERS Eligible
Mortgage Loans or any such Mortgage Loans have been withdrawn from MERS and
Assignments of Mortgage are recorded in favor of the Trustee) and provide for
the same remedies set forth in Section 6.02 and Section 6.03 herein (ii) an
assumption of the due and punctual performance and observance of each covenant
and condition to be performed and observed by the Servicer under this Agreement,
whereupon such successor servicer shall become fully vested with all the rights,
powers, duties, responsibilities, obligations and liabilities of the Servicer,
with like effect as if originally named as a party to this Agreement. Any
termination or resignation of the Servicer or termination of this Agreement
pursuant to Sections 6.02, 7.03, 8.01 or 8.02 shall not affect any claims that
the Seller, the Depositor, the Master Servicer, the NIMS Insurer or the Trustee
may have against the Servicer arising out of the Servicer’s actions or failure
to act prior to any such termination or resignation. In addition, in the event
any successor servicer is appointed pursuant to Section 8.03 of this Agreement,
such successor servicer must satisfy the conditions relating to the transfer
of
servicing set forth in the Trust Agreement.
55
The
Servicer shall deliver promptly to the successor servicer the funds in the
Custodial Account and Escrow Account and all Mortgage Loan documents and related
documents and statements held by it hereunder and the Servicer shall account
for
all funds and shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and definitively vest in
the
successor all such rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer.
Upon
a
successor’s acceptance of appointment as such, the Servicer shall notify the
Trustee, the Master Servicer, the NIMS Insurer, the Seller and the Depositor
of
such appointment in accordance with the procedures set forth in Section
9.03.
Section
9.02 Costs.
The
Seller shall pay any legal fees and expenses of its attorneys. Costs and
expenses incurred in connection with the transfer of the servicing
responsibilities pursuant to Section 9.01 or pursuant to any other provision
of
this Agreement, including fees for delivering Servicing Files, shall be paid
by
the Seller within five (5) Business Days upon receipt of an invoice from the
Servicer. Subject to Sections 2.02 and 3.01(a), the Seller shall pay the costs
associated with the preparation, delivery and recording of Assignments of
Mortgages if performed by the Servicer.
Section
9.03 Notices.
All
demands, notices, consents, reports, directions, instructions, statements and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if sent by facsimile or mailed by overnight courier, addressed
as follows (or such other address as may hereafter be furnished to the other
parties by like notice):
(i)
|
if
to the Seller:
|
Xxxxxx
Brothers Holdings Inc.
000
Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Mortgage
Finance, SASCO 2006-BC6
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
56
(ii)
|
if
to the Servicer:
|
Option
One Mortgage Corporation
3
Ada
Xxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxxxx Xxxxxxxx
Telephone:
(000) 000-0000 (extension 35524)
Facsimile:
(000) 000-0000
(iii)
|
if
to the Master Servicer:
|
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx X. Xxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
(iv)
|
if
to the Securities Administrator:
|
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx 00
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Corporate Trust Group, SASCO 2006-BC6
(or
in the case of overnight deliveries,
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 21045)
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
(v)
|
if
to the Trustee:
|
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxxxxx,
XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention:
Xxxxx Xxxxxx
(vi)
|
if
to the Credit Risk Manager:
|
Xxxxxxx
Fixed Income Services Inc.
0000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attention:
General Counsel (SASCO 2006-BC6)
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
57
Any
such
communication hereunder shall be deemed to have been received on the date
delivered to or received at the premises of the addressee. Notwithstanding
anything to the contrary in this Agreement, the Servicer shall not be obligated
to provide notices pursuant to this Agreement to any NIMS Insurer until 30
days
after the Servicer has received notice of the appointment of such NIMS Insurer
(including the NIMS Insurer’s name, address, telephone number and facsimile
number).
Section
9.04 Severability
Clause.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is as close as possible to the economic effect of this Agreement
without regard to such invalidity.
Section
9.05 No
Personal Solicitation.
From
and
after the related Closing Date, the Servicer hereby agrees that it will not
take
any action or permit or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors or independent mortgage brokerage
companies on the Servicer’s behalf, to personally, by telephone or mail, solicit
the mortgagor under any Mortgage Loan for the purpose of refinancing such
Mortgage Loan; provided
that the
Servicer may not solicit any mortgagor for whom the Servicer has received a
request for verification of mortgage status, a request for demand for payoff,
a
mortgagor initiated written or verbal communication indicating a desire to
prepay the related Mortgage Loan, or the mortgagor initiates a title search,
and
shall refer such mortgagor to the Seller or its agent as provided by the Seller
to the Servicer; provided,
however,
if upon
such referral by the Servicer of such mortgagor to the Seller or its agent,
the
mortgagor decides to refinance such Mortgage Loan with the Servicer, the Seller
shall not hinder the mortgagor’s right to choose its refinancing agent, and may
solicit such mortgagor for refinancing; provided,
further,
it is
understood and agreed that promotions undertaken by the Servicer or any of
its
affiliates which (i) concern optional insurance products or other additional
projects or (ii) are directed to the general public at large, including without
limitation, mass mailings based on commercially acquired mailing lists,
newspaper, radio, telephone and television advertisements shall not constitute
solicitation under this Section 9.05 nor is the Servicer prohibited from
responding to unsolicited requests or inquiries made by a mortgagor or an agent
of a mortgagor.
58
Section
9.06 Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument.
Section
9.07 Place
of Delivery and Governing Law.
This
Agreement shall be deemed in effect when a fully executed counterpart thereof
is
received by the Seller in the State of New York and shall be deemed to have
been
made in the State of New York. 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.
Section
9.08 Further
Agreements.
The
Seller and the Servicer each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements
as
may be necessary or appropriate to effectuate the purposes of this
Agreement.
Section
9.09 Intention
of the Parties.
It
is the
intention of the parties that the Seller is conveying, and the Servicer is
receiving, only a contract for servicing the Mortgage Loans. Accordingly, the
parties hereby acknowledge that the Trust Fund remains the sole and absolute
owner of the Mortgage Loans and all rights (other than the servicing rights)
related thereto.
Section
9.10 Successors
and Assigns; Assignment of Subservicing Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Servicer, the Seller, the Trustee, the NIMS Insurer and the Master Servicer
and
their respective successors and assigns. This Agreement shall not be assigned,
pledged or hypothecated by the Servicer to a third party except in accordance
with Section 7.03 and shall not be assigned, pledged or hypothecated by the
Seller without the consent of the NIMS Insurer except as and to the extent
provided in Section 9.11.
Section
9.11 Assignment
by the Seller.
The
Seller shall have the right, upon notice to but without the consent of the
Servicer, to assign, in whole or in part (but exclusive of such Seller’s rights
and obligations as owner of the servicing rights relating to the Mortgage Loans
and its rights and obligations under Section 8.03), its interest under this
Agreement to the Depositor, which in turn shall assign such rights to the
Trustee, and the Trustee then shall succeed to all rights of the Seller under
this Agreement. All references to the Seller in this Agreement shall be deemed
to include its assignee or designee and any subsequent assignee or designee,
specifically including the Trustee.
59
Section
9.12 Amendment.
This
Agreement may be amended from time to time by the Servicer and the Seller,
by
written agreement signed by the Master Servicer, the Seller and the Servicer;
provided
that the
party requesting such amendment shall, at its own expense, provide the Trustee,
the NIMS Insurer, the Master Servicer and the Seller with an Opinion of Counsel
that such amendment is permitted under the terms of this Agreement, the Servicer
has complied with all applicable requirements of this Agreement, and such
amendment will not materially adversely affect the interest of the
Certificateholders in the Mortgage Loans or the NIM Securities. Notwithstanding
the foregoing provisions of this Section 9.12, this Agreement may be amended
by
the Servicer, the Seller, the Master Servicer and the Trustee from time to
time
without the delivery of an Opinion of Counsel described above to the extent
necessary, in the judgment of the Seller and its counsel, to comply with any
Commission requirements.
Any
such amendment shall be deemed not to adversely affect in any material respect
any of the interest of the Certificateholders in the Mortgage Loans or the
NIM
Securities if the Trustee receives written confirmation from each Rating Agency
that such amendment will not cause such Rating Agency to reduce, qualify or
withdraw the then current rating assigned to the Certificates and the NIM
Securities (and any Opinion of Counsel received by the Trustee, the NIMS
Insurer, the Master Servicer and the
Seller in
connection with any such amendment may rely expressly on such confirmation
as
the basis therefor).
Section
9.13 Waivers.
No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing, signed by the party against whom such waiver or
modification is sought to be enforced and is consented to by the NIMS
Insurer.
Section
9.14 Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
Section
9.15 Intended
Third Party Beneficiaries.
Notwithstanding
any provision herein to the contrary, the parties to this Agreement agree that
it is appropriate, in furtherance of the intent of such parties as set forth
herein, that the Trustee, the Securities Administrator, the Depositor and the
NIMS Insurer receive the benefit of the provisions of this Agreement as intended
third party beneficiaries of this Agreement to the extent of such provisions.
The Servicer shall have the same obligations to the Trustee, the Securities
Administrator, the Depositor and the NIMS Insurer as if they were parties to
this Agreement, and the Trustee (acting through the Master Servicer), the
Securities Administrator, the Depositor and the NIMS Insurer shall have the
same
rights and remedies to enforce the provisions of this Agreement as if they
were
parties to this Agreement. The Servicer shall only take direction from the
Master Servicer (if direction by the Master Servicer is required under this
Agreement) unless otherwise directed by this Agreement or the Credit Risk
Management Agreement. Notwithstanding the foregoing, all rights of the Trustee,
the Securities Administrator and the Depositor hereunder (other than the right
to indemnification) and all rights and obligations of the Master Servicer and
the Servicer hereunder (other than the right to indemnification) shall terminate
upon the termination of the Trust Fund pursuant to the Trust Agreement and
all
rights of the NIMS Insurer set forth in this Agreement (other than the right
of
indemnification) shall exist only so long as the NIM Securities remain
outstanding or the NIMS Insurer is owed amounts in respect of its guarantee
of
payment on such NIM Securities.
60
Section
9.16 Confidentiality.
(a) Definition.
For the
purpose of this Agreement, the term “Confidential Information” shall mean any
information (including but not limited to , financial and business information
relating to the Servicer’s business or affairs, including but not limited to,
products and services, and those in development, and accompanying marketing
plans and business strategies, now known or in possession of, or hereafter
learned or acquired, by the Servicer, or any third party’s information in the
Servicer’s possession which is subject to an obligation on the part of the
Servicer to maintain the confidentiality of such information, including without
limitation, “non-public personal information” (as defined in the
Xxxxx-Xxxxx-Xxxxxx Act (the “GLB Act”) and in its enabling regulations issued by
the Federal Trade Commission) of customers and customers of the
Servicer.
(b) For
purposes of this Agreement, Confidential Information shall not include
information that: (i) is or has become publicly known other than as a result
of
disclosure by the Seller, the Master Servicer or the Trustee (each a “Receiving
Party”) in violation of this Agreement; (ii) is received by or available to a
Receiving Party properly and lawfully from a third party without restriction
on
disclosure and without knowledge or reasonable suspicion that the third party’s
disclosure is in breach of any obligations to Servicer or anyone else; (iii)
has
been developed by the Receiving Party completely independent and without the
use
of any Confidential Information; (iv) has been approved for public release
by
prior written authorization from the Servicer; or (v) is required to be
disclosed by a governmental authority or related governmental agency or is
otherwise required to be disclosed by law. For purposes of clause (iv) above,
Servicer hereby authorizes without the requirement of the Receiving Parties
obtaining from the Servicer any separate or additional prior written
authorization, the disclosure of any information relative to the Servicer or
the
Mortgage Loans by a Receiving Party or its Representatives (as defined below)
which is reasonably required to be disclosed, in the normal course of secondary
market transactions, to successor purchasers of the Mortgage Loans from the
Receiving Parties, to rating agencies, mortgage insurance companies and related
financial guaranty insurer of any related mortgage pass-through
securities.
Each
Receiving Party agrees that:
61
1. It
shall
abide by and respect the Disclosing Party’s rights of any nature (including
without limitation obligations imposed upon the Disclosing Party to protect
the
rights of third parties) in the Confidential Information (including but not
limited to, patents, copyrights and trade secrets) and shall maintain and
preserve the confidentiality of such information, including but without
limitation, taking such steps to protect and preserve the confidentiality of
the
Confidential Information as it takes to preserve and protect the confidentiality
of its own proprietary and confidential information.
2. Except
as
expressly permitted by this Section 9.16, neither Receiving Party nor its
subsidiaries, affiliates, and non-affiliated third party vendors and other
agents of Receiving Party, as well as any directors, members, officers, and
employees of any such entities (collectively, “Representatives”) shall (i) use
the Confidential Information, either directly or indirectly, for any purpose
other than as contemplated herein or (ii) disclose such Confidential Information
to any third party, except to its subcontractors and consultants who have agreed
in writing to maintain the confidentiality of the Confidential Information
and
use the Confidential Information only to the extent required to perform their
duties in any manner, in whole or in part, without the express written consent
of the Servicer. Moreover, a Receiving Party shall not, except as otherwise
required by law, issue any reports, statements or releases pertaining to its
access to the Confidential Information, or disclose to any third party that
such
information is transmitted or accessible to a Receiving Party from the
Disclosing Party, without the Disclosing Party’s prior written
consent.
3. It
shall,
upon termination of the business relationship between the parties or at any
time
upon Servicer’s prior written request, immediately return to Servicer or
destroy, as Servicer may direct, all tangible material within its possession,
custody or control containing or reflecting any portion of the Confidential
Information, and shall make no further use or disclosure of the Confidential
Information for any purpose; and upon Servicer’s request, Receiving Party shall
promptly certify that such action has been taken.
4. Each
Receiving Party shall establish commercially reasonable controls to ensure
the
confidentiality of the Confidential Information and to ensure that the
Confidential Information is not disclosed contrary to the provisions of this
Agreement, the GLB Act, the regulations provided thereunder, or any other
applicable privacy laws and regulations. Without limiting the foregoing, a
Receiving Party shall implement such physical and other security measures as
are
necessary to (i) ensure the security and confidentiality of the Confidential
Information, (ii) protect against any unauthorized access to or use of the
Confidential Information.
5. The
Servicer shall have the right, during regular office hours and upon reasonable
notice, to audit a Receiving Party to ensure compliance with the terms of this
Agreement, the GLB Act and other privacy laws and regulations.
62
Upon
receipt of any governmental, judicial or administrative order, subpoena, or
discovery request seeking the disclosure of Confidential Information, a
Receiving Party shall immediately notify the Servicer in writing of the
Confidential Information sought so that the Servicer may seek an appropriate
protective order, or take other appropriate measures or, at its discretion,
waive Receiving Party’s compliance with the provisions of this Agreement. A
Receiving Party shall cooperate reasonably with the Servicer in contesting
such
request/demand (at the Servicer’s expense), including consulting as to the
advisability of legally attempting to contest or list such request/demand.
If in
the absence of a protective order or a waiver hereunder from the Servicer,
a
Receiving Party is compelled to disclose any Confidential Information to any
tribunal or suffer penalty, such Receiving Party may disclose such Confidential
Information to such tribunal without liability hereunder; provided,
however, a
Receiving Party: (i) shall give the Servicer written notice of the Confidential
Information to be so disclosed as far in advance of its disclosure as is
practicable; (ii) shall furnish only that portion of the Confidential
Information which it is legally required to; and (iii) shall use best efforts
to
obtain an order or other reliable assurance that confidential treatment will
be
accorded to such portions of the Confidential Information to be disclosed as
the
Disclosing Party designates.
(c) Except
as
otherwise specifically provided for herein, each party hereto agrees that this
Section 9.16 shall remain in force and effect in perpetuity with regard to
any
information as defined by the GLB Act and other privacy related laws, rules
and
regulations.
Section
9.17 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a)
the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b)
accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c)
references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d)
a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e)
the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f)
the
term
“include” or “including” shall mean by reason of enumeration.
Section
9.18 Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
63
IN
WITNESS WHEREOF, the Servicer, the Master Servicer and the Seller have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the date first above written.
XXXXXX
BROTHERS HOLDINGS INC.,
as
Seller
By:
/s/
Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
OPTION
ONE MORTGAGE CORPORATION,
as
Servicer
By: /s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Vice President
AURORA
LOAN SERVICES LLC,
as
Master
Servicer
By:
/s/
Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Vice President
Acknowledged
by:
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
By:
/s/
Xxxxx X. X’Xxxxx
Name:
Xxxxx X. X’Xxxxx
Title:
Vice President
EXHIBIT
A
SCHEDULE
OF MORTGAGE LOANS
(including
Prepayment Charge Schedule)
[To
be
retained in a separate closing binder entitled “SASCO 2006-BC6 Mortgage Loan
Schedules”
at XxXxx Xxxxxx, LLP]
A-1
EXHIBIT
B
CUSTODIAL
ACCOUNT LETTER AGREEMENT
_______
__, 20__
To:
|
___________________________
|
___________________________
|
|
___________________________
|
|
(the
“Depository”)
|
As
Servicer under the Subservicing Agreement, dated as of December 1, 2006 (the
“Agreement”), we hereby authorize and request you to establish one or more
accounts as Custodial Accounts pursuant to Section 3.03 of the Agreement, to
be
designated as “Option One Mortgage Corporation in trust for U.S. Bank National
Association, as Trustee for SASCO 2006-BC6.” All deposits in the account shall
be subject to withdrawal therefrom by order signed by the Servicer. This letter
is submitted to you in duplicate. Please execute and return one original to
us.
OPTION
ONE MORTGAGE CORPORATION
By:
_________________________________________
Name:
Title:
B-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number __________, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
__________________________________________
Depository
By:________________________________________
Name:
Title:
Date:
B-2
EXHIBIT
C
ESCROW
ACCOUNT LETTER AGREEMENT
_______
__, 20__
To:
|
___________________________
|
___________________________
|
|
___________________________
|
|
(the
“Depository”)
|
As
Servicer under the Subservicing Agreement, dated as of December 1, 2006 (the
“Agreement”), we hereby authorize and request you to establish an account, as an
Escrow Account pursuant to Section 3.05 of the Agreement, to be designated
as
“Option One Mortgage Corporation in trust for U.S. Bank National Association,
as
Trustee for SASCO 2006-BC6.” All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. This letter is submitted
to you in duplicate. Please execute and return one original to us.
OPTION
ONE MORTGAGE CORPORATION
By:
_________________________________________
Name:
Title:
C-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number __________, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
__________________________________________
Depository
By:________________________________________
Name:
Title:
Date:
X-0
XXXXXXX
X-0
FORM
OF
MONTHLY REMITTANCE ADVICE
FIELD
NAME
|
DESCRIPTION
|
FORMAT
|
INVNUM
|
INVESTOR
LOAN NUMBER
|
Number
no decimals
|
SERVNUM
|
SERVICER
LOAN NUMBER, REQUIRED
|
Number
no decimals
|
BEGSCHEDBAL
|
BEGINNING
SCHEDULED BALANCE FOR SCHED/SCHED
|
Number
two decimals
|
BEGINNING
TRAIL BALANCE FOR ACTUAL/ACTUAL,
|
||
REQUIRED
|
||
SCHEDPRIN
|
SCHEDULED
PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED
|
Number
two decimals
|
ACTUAL
PRINCIPAL COLLECTED FOR ACTUAL/ACTUAL,
|
||
REQUIRED,
.00 IF NO COLLECTIONS
|
||
CURT1
|
CURTAILMENT
1 XXXXXX, .00 IF NOT APPLICABLE
|
Number
two decimals
|
CURT1DATE
|
CURTAILMENT
1 DATE, BLANK IF NOT APPLICABLE
|
DD-MM-YY
|
CURT1ADJ
|
CURTAILMENT
1 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
CURT2
|
CURTAILMENT
2 XXXXXX, .00 IF NOT APPLICABLE
|
Number
two decimals
|
CURT2DATE
|
CURTAILMENT
2 DATE, BLANK IF NOT APPLICABLE
|
DD-MM-YY
|
CURT2ADJ
|
CURTAILMENT
2 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
LIQPRIN
|
PAYOFF,
LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
OTHPRIN
|
OTHER
PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
PRINREMIT
|
TOTAL
PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
INTREMIT
|
NET
INTEREST REMIT, INCLUDE PAYOFF INTEREST,
|
Number
two decimals
|
.00
IF NOT APPLICABLE
|
||
TOTREMIT
|
TOTAL
REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
ENDSCHEDBAL
|
ENDING
SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED
|
Number
two decimals
|
ENDING
TRIAL BALANCE FOR ACTUAL/ACTUAL
|
||
.00
IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
|
||
ENDACTBAL
|
ENDING
TRIAL BALANCE
|
Number
two decimals
|
.00
IF PAIDOFF, LIQUIDATED OR FULL CHARGEOFF
|
||
ENDDUEDATE
|
ENDING
ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT
|
DD-MM-YY
|
ACTCODE
|
60
IF PAIDOFF, BLANK IF NOT APPLICABLE
|
Number
no decimals
|
ACTDATE
|
ACTUAL
PAYOFF DATE, BLANK IF NOT APPLICABLE
|
DD-MM-YY
|
INTRATE
|
INTEREST
RATE, REQUIRED
|
Number
seven decimals
|
Example
.0700000 for 7.00%
|
||
SFRATE
|
SERVICE
FEE RATE, REQUIRED
|
Number
seven decimals
|
Example
.0025000 for .25%
|
||
PTRATE
|
PASS
THRU RATE, REQUIRED
|
Number
seven decimals
|
Example
.0675000 for 6.75%
|
||
PIPMT
|
P&I
CONSTANT, REQUIRED
|
Number
two decimals
|
.00
IF PAIDOFF.
|
X-0-0
XXXXXXX
X-0
XXXXXXXX
XXXXXX FOR MONTHLY DEFAULTED LOAN REPORT
Data
Field
|
Format
|
|
|
Data
Description
|
%
of
MI coverage
|
NUMBER(6,5)
|
|
|
The
percent of coverage provided by the PMI company in the event of loss
on a
defaulted loan.
|
Actual
MI claim filed date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the claim was submitted to the PMI company.
|
Actual
bankruptcy start date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the bankruptcy petition is filed with the
court.
|
Actual
MI claim amount filed
|
NUMBER(15,2)
|
|
|
The
amount of the claim that was filed by the servicer with the PMI
company.
|
Actual
discharge date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the Discharge Order is entered in the bankruptcy
docket.
|
Actual
due date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
due date of the next outstanding payment amount due from the
mortgagor.
|
Actual
eviction complete date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the eviction proceedings are completed by local
counsel.
|
Actual
eviction start date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the eviction proceedings are commenced by local
counsel.
|
Actual
first legal date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that foreclosure counsel filed the first legal action as defined
by
state statute.
|
Actual
redemption end date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the foreclosure redemption period expires.
|
Bankruptcy
chapter
|
VARCHAR2(2)
|
7=
Chapter 7 filed
12=
Chapter 12 filed
|
11=
Chapter 11 filed
13=
Chapter 13 filed
|
Chapter
of bankruptcy filed.
|
Bankruptcy
flag
|
VARCHAR2(2)
|
Y=Active
Bankruptcy
|
N=No
Active Bankruptcy
|
Servicer
defined indicator that identifies that the property is an asset in
an
active bankruptcy case.
|
Bankruptcy
Case Number
|
VARCHAR2(15)
|
|
|
The
court assigned case number of the bankruptcy filed by a party with
interest in the property.
|
D-2-1
MI
claim amount paid
|
NUMBER(15,2)
|
|
|
The
amount paid to the servicer by the PMI company as a result of submitting
an MI claim.
|
MI
claim funds received date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that funds were received from the PMI company as a result of
transmitting an MI claim.
|
Current
loan amount
|
NUMBER(10,2)
|
|
|
Current
unpaid principal balance of the loan as of the date of reporting
to Aurora
Master Servicing.
|
Date
FC sale scheduled
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the foreclosure sale is scheduled to be held.
|
Date
relief/dismissal granted
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the dismissal or relief from stay order is entered by the
bankruptcy court.
|
Date
REO offer accepted
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date of acceptance of an REO offer.
|
Date
REO offer received
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date of receipt of an REO offer.
|
Delinquency
value
|
NUMBER(10,2)
|
|
|
Value
obtained typically from a BPO prior to foreclosure referral not related
to
loss mitigation activity.
|
Delinquency
value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the delinquency valuation
amount.
|
Delinquency
value date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the delinquency valuation amount was completed by vendor or
property
management company.
|
Delinquency
flag
|
VARCHAR2(2)
|
Y=
90+ delinq. Not in FC, Bky or Loss mit
|
N=Less
than 90 days delinquent
|
Servicer
defined indicator that identifies that the loan is delinquent but
is not
involved in loss mitigation, foreclosure, bankruptcy or
REO.
|
Foreclosure
flag
|
VARCHAR2(2)
|
Y=Active
foreclosure
|
N=No
active foreclosure
|
Servicer
defined indicator that identifies that the loan is involved in foreclosure
proceedings.
|
Corporate
expense balance
|
NUMBER(10,2)
|
|
|
Total
of all cumulative expenses advanced by the servicer for non-escrow
expenses such as but not limited to: FC fees and costs, bankruptcy
fees
and costs, property preservation and property
inspections.
|
D-2-2
Foreclosure
attorney referral date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the loan was referred to local counsel to begin foreclosure
proceedings.
|
Foreclosure
valuation amount
|
NUMBER(15,2)
|
|
|
Value
obtained during the foreclosure process. Usually as a result of a
BPO and
typically used to calculate the bid.
|
Foreclosure
valuation date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that foreclosure valuation amount was completed by vendor or property
management company.
|
Foreclosure
valuation source
|
VARCHAR2(80)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the foreclosure valuation
amount.
|
FHA
27011A transmitted date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the FHA 27011A claim was submitted to HUD.
|
FHA
27011 B transmitted date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the FHA 27011B claim was submitted to HUD.
|
VA
LGC/ FHA Case number
|
VARCHAR2(15)
|
|
|
Number
that is assigned individually to the loan by either HUD or VA at
the time
of origination. The number is located on the Loan Guarantee Certificate
(LGC) or the Mortgage Insurance Certificate (MIC).
|
FHA
Part A funds received date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that funds were received from HUD as a result of transmitting
the
27011A claim.
|
Foreclosure
actual sale date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the foreclosure sale was held.
|
Servicer
loan number
|
VARCHAR2(15)
|
|
|
Individual
number that uniquely identifies loan as defined by
servicer.
|
Loan
type
|
VARCHAR2(2)
|
1=FHA
Residential
3=Conventional
w/o PMI
5=FHA
Project
7=HUD
235/265
9=Farm
Loan
S=Sub
prime
|
2=VA
Residentia
4=Commercial
6=Conventional
w/PMI
8=Daily
Simple Interest Loan
U=Unknown
|
Type
of loan being serviced generally defined by the existence of certain
types
of insurance (i.e.: FHA, VA, conventional insured, conventional uninsured,
SBA, etc.).
|
Loss
mit approval date
|
DATE(MM/DD/YYYY)
|
|
|
The
date determined that the servicer and mortgagor agree to pursue a
defined
loss mitigation alternative.
|
D-2-3
Loss
mit flag
|
VARCHAR2(2)
|
Y=
Active loss mitigation
|
N=No
active loss mitigation
|
Servicer
defined indicator that identifies that the loan is involved in completing
a loss mitigation alternative.
|
Loss
mit removal date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the mortgagor is denied loss mitigation alternatives or
the date
that the loss mitigation alternative is completed resulting in a
current
or liquidated loan.
|
Loss
mit type
|
VARCHAR2(2)
|
L=
Loss Mitigation
NP=Pending
non-performing sale
DI=
Deed in lieu
MO=Modification
SH=Short
sale
|
LT=Litigation
pending
CH=
Charge off
FB=
Forbearance plan
PC=Partial
claim
VA=VA
refunding
|
The
defined loss mitigation alternative identified on the loss mit approval
date.
|
Loss
mit value
|
NUMBER(10,2)
|
|
|
Value
obtained typically from a BPO prior to foreclosure sale intended
to aid in
the completion of loss mitigation activity.
|
Loss
mit value date
|
DATE(MM/DD/YYYY)
|
|
|
Name
of vendor or management company that provided the loss mitigation
valuation amount.
|
Loss
mit value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Date
that the loss mitigation valuation amount was completed by vendor
or
property management company.
|
MI
certificate number
|
VARCHAR2(15)
|
|
|
A
number that is assigned individually to the loan by the PMI company
at the
time of origination. Similar to the VA LGC/FHA Case Number in purpose.
|
LPMI
Cost
|
NUMBER(7,7)
|
|
|
The
current premium paid to the PMI company for Lender Paid Mortgage
Insurance.
|
Occupancy
status
|
VARCHAR2(1)
|
O=Owner
occupied
U=Unknown
|
T=Tenant
occupied
V=Vacant
|
The
most recent status of the property regarding who if anyone is occupying
the property. Typically a result of a routine property
inspection.
|
First
Vacancy date/ Occupancy status date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the most recent occupancy status was determined. Typically
the
date of the most recent property inspection.
|
Original
loan amount
|
NUMBER(10,2)
|
|
|
Amount
of the contractual obligations (i.e.: note and mortgage/deed of
trust).
|
D-2-4
Original
value amount
|
NUMBER(10,2)
|
|
|
Appraised
value of property as of origination typically determined through
the
appraisal process.
|
Origination
date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the contractual obligations (i.e.: note and mortgage/deed of
trust)
of the mortgagor was executed.
|
FHA
Part B funds received date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that funds were received from HUD as a result of transmitting
the
27011B claim.
|
Post
petition due date
|
DATE(MM/DD/YYYY)
|
|
|
The
post petition due date of a loan involved in a chapter 13
bankruptcy.
|
Property
condition
|
VARCHAR2(2)
|
1=
Excellent
3=Average
5=Poor
|
2=Good
4=Fair
6=Very
poor
|
Physical
condition of the property as most recently reported to the servicer
by
vendor or property management company.
|
Property
type
|
VARCHAR2(2)
3=Condo
6=Prefabricated
7=Mobile
home
A=Church
O=Co-op
CT=Condotel
|
1=Single
family
4=Multifamily
B=Commercial
U=Unknown
P=PUD
M=Manufactured
housing
MU=Mixed
use
|
2=Town
house
5=Other
C=Land
only
D=Farm
R=Row
house
24=
2-4 family
|
Type
of property secured by mortgage such as: single family, 2-4 unit,
etc.
|
Reason
for default
|
VARCHAR2(3)
|
001=Death
of principal mtgr
003=Illness
of mtgr's family member
004=Death
of mtgr's family member
006=Curtailment
of income
008=Abandonment
of property
011=Property
problem
013=Inability
to rent property
015=Other
017=Business
failure
022=Energy-Environment
costs
026=
Payment adjustment
029=Transfer
ownership pending
031=Unable
to contact borrower
|
002=Illness
of principal mtgr
005=Marital
difficulties
007=Excessive
obligations
009=Distant
employee transfer
012=Inability
to sell property
014=Military
service
016=Unemployment
019=Casualty
loss
023=
Servicing problems
027=Payment
dispute
030=Fraud
INC=Incarceration
|
Cause
of delinquency as identified by mortgagor.
|
REO
repaired value
|
NUMBER(10,2)
|
|
|
The
projected value of the property that is adjusted from the "as is"
value
assuming necessary repairs have been made to the property as determined
by
the vendor/property management
company.
|
D-2-5
REO
list price adjustment amount
|
NUMBER(15,2)
|
|
|
The
most recent listing/pricing amount as updated by the servicer for
REO
properties.
|
REO
list price adjustment date
|
DATE(MM/DD/YYYY)
|
|
|
The
most recent date that the servicer advised the agent to make an adjustment
to the REO listing price.
|
REO
value (as is)
|
NUMBER(10,2)
|
|
|
The
value of the property without making any repairs as determined by
the
vendor/property management company.
|
REO
actual closing date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the sale of the REO property closed
escrow.
|
REO
flag
|
VARCHAR2(7)
|
Y=Active
REO
|
N=No
active REO
|
Servicer
defined indicator that identifies that the property is now Real Estate
Owned.
|
REO
original list date
|
DATE(MM/DD/YYYY)
|
|
|
The
initial/first date that the property was listed with an agent as
an
REO.
|
REO
original list price
|
NUMBER(15,2)
|
|
|
The
initial/first price that was used to list the property with an agent
as an
REO.
|
REO
net sales proceeds
|
NUMBER(10,2)
|
|
|
The
actual REO sales price less closing costs paid. The net sales proceeds
are
identified within the HUD1 settlement statement.
|
REO
sales price
|
NUMBER(10,2)
|
|
|
Actual
sales price agreed upon by both the purchaser and servicer as documented
on the HUD1 settlement statement.
|
REO
scheduled close date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the sale of the REO property is scheduled to close
escrow.
|
REO
value date
|
DATE(MM/DD/YYYY)
|
|
|
Date
that the vendor or management company completed the valuation of
the
property resulting in the REO value (as is).
|
REO
value source
|
VARCHAR2(15)
|
BPO=
Broker's Price Opinion
|
Appraisal=Appraisal
|
Name
of vendor or management company that provided the REO value (as
is).
|
Repay
first due date
|
DATE(MM/DD/YYYY)
|
|
|
The
due date of the first scheduled payment due under a forbearance or
repayment plan agreed to by both the mortgagor and
servicer.
|
Repay
next due date
|
DATE(MM/DD/YYYY)
|
|
|
The
due date of the next outstanding payment due under a forbearance
or
repayment plan agreed to by both the mortgagor and servicer.
|
D-2-6
Repay
plan broken/reinstated/closed date
|
DATE(MM/DD/YYYY)
|
|
|
The
servicer defined date upon which the servicer considers that the
plan is
no longer in effect as a result of plan completion or mortgagor's
failure
to remit payments as scheduled.
|
Repay
plan created date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that both the mortgagor and servicer agree to the terms of a
forbearance or repayment plan.
|
SBO
loan number
|
NUMBER(9)
|
|
|
Individual
number that uniquely identifies loan as defined by Aurora Master
Servicing.
|
Escrow
balance/advance balance
|
NUMBER(10,2)
|
|
|
The
positive or negative account balance that is dedicated to payment
of
hazard insurance, property taxes, MI, etc. (escrow items
only).
|
Title
approval letter received date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the title approval was received as set forth in
the HUD
title approval letter.
|
Title
package HUD/VA date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the title package was submitted to either HUD or
VA.
|
VA
claim funds received date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that funds were received by the servicer from the VA
for the
expense claim submitted by the servicer.
|
VA
claim submitted date
|
DATE(MM/DD/YYYY)
|
|
|
The
actual date that the expense claim was submitted by the servicer
to the
VA.
|
VA
first funds received amount
|
NUMBER(15,2)
|
|
|
The
amount of funds received by the servicer from VA as a result of the
specified bid.
|
VA
first funds received date
|
DATE(MM/DD/YYYY)
|
|
|
The
date that the funds from the specified bid were received by the servicer
from the VA.
|
VA
XXX submitted date
|
DATE(MM/DD/YYYY)
|
|
|
Actual
date that the Notice of Election to Convey was submitted to the
VA.
|
Zip
Code
|
VARCHAR2(5)
|
|
|
U.S.
postal zip code that corresponds to property
location.
|
D-2-7
FNMA
Delinquency status code
|
VARCHAR2(3)
24=Drug
seizure
28=Modification
31=Probate
44=Deed-in-lieu
62=VA
no-bid
65=Ch.
7 bankruptcy
|
09=Forbearance
26=Refinance
29=Charge-off
32=Military
indulgence
49=Assignment
63=VA
Refund
66=Ch.
11 bankruptcy
|
17=Preforeclosure
sale
27=Assumption
30=Third-party
sale
43=Foreclosure
61=Second
lien considerations
64=VA
Buydown
67=Ch.
13 bankruptcy
|
The
code that is electronically reported to FNMA by the servicer that
reflects
the current defaulted status of a loan (i.e.: 65, 67, 43 or
44).
|
FNMA
delinquency reason code
|
VARCHAR2(3)
|
001=Death
of principal mtgr
003=Illness
of mtgr's family member
005=Marital
difficulties
007=Excessive
obligations
009=Distant
employee transfer
012=Inability
to sell property
014=Military
service
016=Unemployment
019=Casualty
loss
023=
Servicing problems
027=Payment
dispute
030=Fraud
INC=Incarceration
|
002=Illness
of principal mtgr
004=Death
of mtgr's family member
006=Curtailment
of income
008=Abandonment
of property
011=Property
problem
013=Inability
to rent property
015=Other
017=Business
failure
022=Energy-Environment
costs
026=
Payment adjustment
029=Transfer
ownership pending
031=Unable
to contact borrower
|
The
code that is electronically reported to FNMA by the servicer that
describes the circumstance that appears to be the primary contributing
factor to the delinquency.
|
Suspense
balance
|
NUMBER(10,2)
|
|
|
Money
submitted to the servicer, credited to the mortgagor's account but
not
allocated to principal, interest, escrow, etc.
|
Restricted
escrow balance
|
NUMBER(10,2)
|
|
|
Money
held in escrow by the mortgage company through completion of repairs
to
property.
|
Investor
number
|
NUMBER
(10,2)
|
|
|
Unique
number assigned to a group of loans in the servicing system.
|
X-0-0
XXXXXXX
X-0
FORM
OF
LOAN LOSS REPORT
Final
Report Field Heading
|
Definition
|
Format
|
Servicer
Cut Off Date
|
Reporting
cycle cut off date
|
DATE(MM/DD/YYYY)
|
Servicer
Loan Number
|
Individual
number that uniquely identifies loan as defined by
servicer.
|
VARCHAR2(15)
|
Investor
Loan Number
|
Individual
number that uniquely identifies loan as defined by Aurora Master
Servicing.
|
NUMBER(9)
|
Servicer
Customer Number
|
Unique
number assigned to each servicer
|
NUMBER(3)
|
Investor
ID
|
Unique
number assigned to a group of loans in the servicing system.
|
NUMBER
(10,2)
|
Resolution
Type
|
Description
of the process to resolve the delinquency. Ex. Foreclosure, Short
Sale,
Third Party Sale, Deed In Lieu, etc.
|
VARCHAR2(15)
|
Resolution
Date
|
Date
the process described in Resolution Type was completed.
|
DATE(MM/DD/YYYY)
|
Liquidation
Date
|
Date
the loan was liquidated on the servicers servicing system.
|
DATE(MM/DD/YYYY)
|
REO
Sale Date
|
Actual
date that the sale of the REO property closed escrow.
|
DATE(MM/DD/YYYY)
|
Title
Date
|
Date
clear title was recorded.
|
DATE(MM/DD/YYYY)
|
MI
Percent
|
Percent
of coverage provided by the PMI company in the event of loss on a
defaulted loan.
|
NUMBER(6,5)
|
D-3-1
First
Legal Date
|
Actual
date that foreclosure counsel filed the first legal action as defined
by
state statute.
|
DATE(MM/DD/YYYY)
|
Bankruptcy
1 Filing Date
|
Actual
date the bankruptcy petition is filed with the court.
|
DATE(MM/DD/YYYY)
|
Bankruptcy
1 Relief Date
|
Actual
date the Discharge, Dismissal or Relief Order is entered in the bankruptcy
docket.
|
DATE(MM/DD/YYYY)
|
Bankruptcy
2 Filing Date
|
Actual
date the bankruptcy petition is filed with the court.
|
DATE(MM/DD/YYYY)
|
Bankruptcy
2 Relief Date
|
Actual
date the Discharge, Dismissal or Relief Order is entered in the bankruptcy
docket.
|
DATE(MM/DD/YYYY)
|
Foreclosure
Fees
|
Amount
paid to the Foreclosure Attorney for performing his
service.
|
NUMBER(10,2)
|
Foreclosure
Costs
|
Amount
incurred as part of the foreclosure process.
|
NUMBER(10,2)
|
Bankruptcy
Costs
|
Amount
incurred related to a bankruptcy filing involving the borrower or
subject
property.
|
NUMBER(10,2)
|
Eviction
Costs
|
Amount
incurred related to the eviction process.
|
NUMBER(10,2)
|
Appraisal
Costs
|
Amount
incurred to acquire a value for the subject property.
|
NUMBER(10,2)
|
Preservation
Costs
|
Amount
incurred to preserve and secure the property.
|
NUMBER(10,2)
|
Utility
Costs
|
Amount
incurred for utilities at the property.
|
NUMBER(10,2)
|
D-3-2
HOA
Costs
|
Amount
paid to the Home Owners Association to maintain the property
dues.
|
NUMBER(10,2)
|
Other
Costs
|
Amount
of Miscellaneous Expenses incurred during the default
process.
|
NUMBER(10,2)
|
Interest
on Advances
|
Interest
paid by HUD/VA or MI on the amounts advanced related to the liquidation
of
the property.
|
NUMBER(10,2)
|
Hazard
Refunds
|
Amount
of refunds of Hazard Premiums paid.
|
NUMBER(10,2)
|
Real
Estate Taxes
|
Amount
of any taxes paid during the default process.
|
NUMBER(10,2)
|
Hazard
Premiums
|
Amount
paid for Hazard Insurance on the property held as collateral for
the
mortgage.
|
NUMBER(10,2)
|
MI
Premiums
|
Amount
paid for Mortgage Insurance related to the mortgage loan.
|
NUMBER(10,2)
|
Other
Escrow
|
Miscellaneous
Expenses incurred from the escrow account during the default
process.
|
NUMBER(10,2)
|
Sales
Proceeds
|
Funds
received in connection with the sale of the property held as collateral
for the mortgage loan (Positive Number).
|
NUMBER(10,2)
|
Initial
Claim Proceeds
|
Funds
received in connection with the conveyance of the property to the
insuring
agency (Positive Number).
|
NUMBER(10,2)
|
D-3-3
Final
Claim Proceeds
|
Claim
funds received from the insuring agency (HUD/VA).
|
NUMBER(10,2)
|
Other
Proceeds
|
Miscellaneous
funds received in connection with the property held as collateral
for the
mortgage loan (Positive Number).
|
NUMBER(10,2)
|
Escrow
Balance
|
Any
positive balance remaining in the escrow account.
|
NUMBER(10,2)
|
Replacement
Reserve Bal
|
Amount
of funds held in the Replacement Reserve account (Positive
Number).
|
NUMBER(10,2)
|
Restricted
Escrow Bal
|
Amount
of funds held in the Restricted Escrow account.
|
NUMBER(10,2)
|
Suspense
Balance
|
Amount
of funds held in the Suspense account (Positive Number).
|
NUMBER(10,2)
|
Servicer
Retained Loss
|
The
total amount of the Gross Final Actual (Loss)/Gain the servicer will
take,
due to Interest/Expense Curtailments by HUD/VA (This would include
Advances not claimed to HUD/VA or MI due to servicer error) (Positive
Number).
|
NUMBER(10,2)
|
D-3-4
EXHIBIT
E
SASCO
2006-BC6 TRUST AGREEMENT
E-1
EXHIBIT
F
FORM
OF
ANNUAL CERTIFICATION
Re:
|
The
Subservicing Agreement dated as of December 1, 2006 (the “Agreement”), by
and among Option One Mortgage Corporation, as servicer (the “Servicer”),
Xxxxxx Brothers Holdings Inc., as seller (the “Seller”), Aurora Loan
Services LLC, as master servicer (the “Master Servicer”), and acknowledged
by U.S. Bank National Association, as Trustee (the
“Trustee”)
|
I,
________________________________, the _______________________ of Option One
Mortgage Corporation, certify to the Depositor, the Master Servicer, the
Securities Administrator and the Trustee, and their officers, with the knowledge
and intent that they will rely upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to the Depositor, the Master
Servicer, the Securities Administrator and the 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, the
Master Servicer, the Securities Administrator and the 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 in all material respects under the
Agreement; and
F-1
(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, the Master Servicer, the
Securities Administrator and the Trustee. Any material instances of
noncompliance described in such reports have been disclosed to the Depositor,
the Master Servicer, the Securities Administrator and the Trustee. Any material
instance of noncompliance with the Servicing Criteria has been disclosed in
such
reports.
Date: _________________________
By:
_________________________
Name:
Title:
F-2
EXHIBIT
G
XXXXXX-XXX
GUIDE NO. 95-19
G-1
XXXXXX
XXX GUIDE 95-19
ANNOUNCEMENT
Reference
·
|
Selling
|
This
announcement amends the guide(s) indicated.
|
|
·
|
Servicing
|
Please
keep it for reference until we issue a formal
change.
|
Subject
|
“Full-File”
Reporting to Credit Repositories
|
Part
IV,
Section 107, of the servicing Guide currently requires servicers to report
only
90-day delinquencies to the four major credit repositories. To ensure that
the
repositories have up-to-date information for both servicing and origination
activity, we have decided to begin requiring—as of the month ending March 31,
1996—servicers to provide the credit repositories a “full-file” status report
for the mortgages they service for us.
“Full-file”
reporting requires that servicers submit a monthly report to each of the credit
repositories to describe the exact status for each mortgage they service for
us.
The status reported generally should be the one in effect as of the last
business day of each month. Servicers may, however, use a slightly later cut-off
date—for example, at the and of the first week of a month—to assure that payment
corrections, returned checks, and other adjustments related to the previous
month’s activity can be appropriately reflected in their report for that month.
Statuses that must be reported for any given mortgage include the following:
new
origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, and
charged-off. (The credit repositories will provide the applicable codes for
reporting these statuses to them.) A listing of each of the major repositories
to which “full-file” status reports must be sent is attached.
Servicers
are responsible for the complete and accurate reporting of mortgage status
information to the repositories and for resolving any disputes that arise about
the information they report. Servicers must respond promptly to any inquiries
from borrowers regarding specific mortgage status information about them that
was reported to the credit repositories.
Servicers
should contact their Customer Account Team in their lead Xxxxxx Mae regional
office if they have any questions about this expanded reporting
requirement.
Xxxxxx
X.
Engeletad
Senior
Vice President - Mortgage and Lender Standards
11/20/95
G-2
XXXXXX
MAE GUIDE 95-19
ATTACHMENT
1
ANNOUNCEMENT
Major
Credit Repositories
A
“full-file” status report for each mortgage serviced for Xxxxxx Xxx must be sent
to the following repositories each month (beginning with the month ending March
31, 1996):
Company
|
Telephone
Number
|
Consumer
Credit Associates, Inc.
000
Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000-0000
|
Call
(000) 000-0000, either extension 150, 101, or 112, for all
inquiries.
|
Equifax
|
Members
that have an account number may call their local sales representative
for
all inquiries; lenders that need to set up an account should call
(000)
000-0000 and select the customer assistance option.
|
TRW
Information Systems & Services
000
XXX Xxxxxxx
Xxxxx,
Xxxxx 00000
|
Call
(000) 000-0000 for all inquiries, current members should select option
3;
lenders that need to set up an account should select Option
4.
|
Trans
Union Corporation
000
Xxxx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
|
Call
(000) 000-0000 to get the name of the local bureau to contact about
setting up an account or obtaining other
information.
|
11/20/95
G-3
EXHIBIT
H
SERVICING
CRITERIA TO BE ADDRESSED IN REPORT ON
ASSESSMENT
OF COMPLIANCE
The
Servicer shall address, at a minimum, the criteria identified as below as
“Applicable Servicing Criteria,” as identified by a xxxx in the column titled
“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
|
H-1
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
|
H-2
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.
|
|
|
|
|
H-3
EXHIBIT
I
TRANSACTION
PARTIES
Trustee
|
U.S.
Bank National Association
|
Securities
Administrator
|
Xxxxx
Fargo Bank, N.A.
|
Master
Servicer
|
Aurora
Loan Services LLC
|
Credit
Risk Manager
|
Xxxxxxx
Fixed Income Services Inc.
|
PMI
Insurer(s)
|
PMI
Mortgage Insurance Co. and Mortgage Guaranty Insurance
Corporation
|
Interest
Rate Swap Counterparty
|
IXIS
Financial Products Inc.
|
Servicer(s)
|
Option
One Mortgage Corporation, Xxxxx Fargo Bank, N.A. and XX Xxxxxx Xxxxx
Bank
National Association
|
Originator(s)
|
Option
One Mortgage Corporation, EquiFirst Corporation and BNC Mortgage,
Inc.
|
Custodian(s)
|
Deutsche
Bank National Trust Company, Xxxxx Fargo Bank, N.A. and LaSalle Bank
National Association
|
Seller
|
Xxxxxx
Brothers Holdings Inc.
|
I-1
EXHIBIT
J
FORM
OF
ANNUAL OFFICER’S CERTIFICATE
Via
Overnight Delivery
[DATE]
To:
Aurora
Loan Services LLC
000
Xxxxxxxxx Xxxxx Xxxxx
Mail
Stop
3199
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Compliance Coordinator
(SASCO
2006-BC6)
RE:
|
Annual
officer’s certificate delivered pursuant to Section 5.03 of that certain
servicing agreement, dated as of December 1, 2006 (the “Agreement”), by
and among Xxxxxx Brothers Holdings Inc., Option One Mortgage Corporation,
as servicer (the “Servicer”), Aurora Loan Services LLC, as master
servicer, and acknowledged by U.S. Bank National Association, as
Trustee,
relating to the issuance of the SASCO Mortgage Pass-Through Certificates,
Series 2006-BC6
|
[_______],
the undersigned, a duly authorized [_______] of [the Servicer][Name of
Subservicer], does hereby certify the following for the [calendar year][identify
other period] ending on December 31, 20[__]:
1.
|
A
review of the activities of the Servicer during the preceding calendar
year (or portion thereof) and of its performance under the Agreement
for
such period has been made under my
supervision.
|
2.
|
To
the best of my knowledge, based on such review, the Servicer has
fulfilled
all of its obligations under the Agreement in all material respects
throughout such year (or applicable portion thereof), or, if there
has
been a failure to fulfill any such obligation in any material respect,
I
have specifically identified to the Master Servicer, the Depositor
and the
Trustee each such failure known to me and the nature and status thereof,
including the steps being taken by the Servicer to remedy such
default.
|
Certified
By:
______________________________
Name:
Title:
J-1