EXHIBIT 10.7
EXECUTION
GS WHOLE LOAN TRUST III,
AS THE COMPANY
AND
SYSTEMS & SERVICES TECHNOLOGIES, INC.,
AS THE SERVICER
SERVICING AGREEMENT
DATED AS OF JUNE 28, 2005
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS .................................................................... 1
Section 1.01 Definitions ............................................................. 1
Section 1.02 Other Definitional Provisions ........................................... 8
ARTICLE II effective date; APPOINTMENT AND CUSTODY ........................................ 9
Section 2.01 Effective Date; Appointment of Servicer ................................. 9
Section 2.02 Custody of the Receivables Files ........................................ 9
ARTICLE III REPRESENTATIONS AND WARRANTIES ................................................. 10
Section 3.01 Representations and Warranties of the Servicer .......................... 10
Section 3.02 Representations and Warranties of the Company ........................... 11
ARTICLE IV ADMINISTRATION AND SERVICING OF RECEIVABLES .................................... 12
Section 4.01 Servicer ................................................................ 12
Section 4.02 Realization of Receivables .............................................. 13
Section 4.03 Collections Related to the Receivables .................................. 14
Section 4.04 Payment of Servicing Fees and Expenses .................................. 14
Section 4.05 Errors and Omissions and Blanket Crime Insurance ........................ 15
ARTICLE V PAYMENTS TO THE COMPANY ........................................................ 15
Section 5.01 Remittances ............................................................. 15
Section 5.02 Servicer Reports ........................................................ 16
ARTICLE VI GENERAL SERVICING PROCEDURES ................................................... 16
Section 6.01 Satisfaction of Receivables and Release of Receivable Files ............. 16
Section 6.02 Annual Statement as to Compliance ....................................... 17
Section 6.03 Accountants' Reports .................................................... 17
Section 6.04 Right to Examine Servicer Records ....................................... 18
ARTICLE VII SERVICER TO COOPERATE .......................................................... 18
Section 7.01 Provision of Information ................................................ 18
Section 7.02 Financial Statements; Servicing Facility ................................ 18
ARTICLE VIII INDEMNIFICATION; SERVICER COVENANTS ............................................ 19
Section 8.01 Indemnification of Third Party Claims by the Servicer ................... 19
Section 8.02 Merger or Consolidation of the Servicer ................................. 20
Section 8.03 Limitation on Resignation and Assignment by Servicer .................... 20
Section 8.04 Indemnification of Third Party Claims by the Company .................... 21
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE IX SERVICER TERMINATION EVENT ..................................................... 22
Section 9.01 Servicer Termination Events ............................................. 22
Section 9.02 Waiver of Servicer Termination Events ................................... 25
ARTICLE X TERM AND TERMINATION ........................................................... 25
Section 10.01 Termination ............................................................. 25
ARTICLE XI SUCCESSOR TO SERVICER .......................................................... 25
Section 11.01 Successor to Servicer ................................................... 25
ARTICLE XII SECURITIZATION ................................................................. 26
Section 12.01 Assistance with Securitizations ......................................... 26
ARTICLE XIII Miscellaneous .................................................................. 29
Section 13.01 Amendment ............................................................... 29
Section 13.02 Governing Law; Jurisdiction; Waiver of Jury Trial ....................... 29
Section 13.03 Duration of Agreement ................................................... 29
Section 13.04 Notices ................................................................. 29
Section 13.05 Severability of Provisions .............................................. 30
Section 13.06 Entire Agreement ........................................................ 31
Section 13.07 Relationship of Parties ................................................. 31
Section 13.08 Counterparts ............................................................ 31
Section 13.09 Assignment .............................................................. 31
Section 13.10 Third-Party Beneficiaries ............................................... 32
Section 13.11 No Waiver; Cumulative Remedies .......................................... 32
Section 13.12 Further Assurances ...................................................... 32
Section 13.13 Effect of Headings; Cross-References .................................... 32
Section 13.14 No Petition Covenant .................................................... 32
Section 13.15 Expenses ................................................................ 32
Section 13.16 Agents to Act on Behalf of the Company .................................. 33
Section 13.17 Guarantee by GSMC ....................................................... 33
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Exhibit A: Servicing Standards
Exhibit B: Receivable Schedule
Exhibit C: Account Instructions
Exhibit D: List of Monthly Servicer Reports
Exhibit E: Servicer Annual Certification
Exhibit F: Indemnification by Ohio Savings Bank
Exhibit G: Form of Acknowledgment of Receipt
Exhibit H: Representations and Warranties of Ohio Savings Bank
SERVICING AGREEMENT
This Servicing Agreement (as amended, modified or supplemented from time
to time, the "AGREEMENT") is entered into as of the 28th day of June, 2005
between SYSTEMS & SERVICES TECHNOLOGIES, INC., a corporation organized under the
laws of the State of Delaware, its permitted successors and assigns ("SST"), as
servicer (in such capacity, the "SERVICER"), and GS WHOLE LOAN TRUST III, a
Delaware statutory trust (together with its permitted successors and assigns,
the "COMPANY"). XXXXXXX XXXXX MORTGAGE COMPANY, a New York limited partnership
("GSMC"), joins in this Agreement solely for purposes of Section 13.17 hereof.
RECITALS:
WHEREAS, the Company purchased Receivables (as hereinafter defined) from
Ohio Savings Bank, f.s.b., a federal savings bank (the "SELLER"), pursuant to
that certain Purchase Agreement between the Company and the Seller dated as of
June 28, 2005 (as amended, modified or supplemented from time to time, the
"PURCHASE AGREEMENT");
WHEREAS, SST provides portfolio management services, including loan
administration, payment collection and processing, insurance claim processing,
custodial services and financial reporting to financial institutions in
connection with receivables similar to the Receivables; and
WHEREAS, the Company desires to appoint the Servicer to service the
Receivables on the terms and conditions provided herein.
NOW THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS. As used in this Agreement, the following
terms shall, unless the context otherwise requires, have the following meanings:
"AFFILIATE" means, when used with reference to a specified Person,
any Person that directly or indirectly controls or is controlled by or is under
common control with the specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" or "controlled" have meanings correlative to the
foregoing.
"ACTIVE RECEIVABLE" means any Receivable other than: (i) paid
(including prepaid), fully satisfied Receivables; (ii) Receivables in which the
Financed Vehicle has been liquidated and the Liquidation Proceeds or any other
anticipated proceeds have been applied to reduce the Principal Balance; and
(iii) Receivables for which the Servicer has completed all work in connection
with processing and receiving insurance payoffs.
"APPLICABLE LAW" means all provisions of statutes, rules and
regulations, interpretations and orders of any Governmental Authority applicable
to a Person, and all orders and decrees of all courts and arbitrators in
proceedings or actions in which the Person in question is a party including
applicable federal, state and local laws and regulations thereunder.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy" as now or hereafter in effect, or any successor thereto.
"BUSINESS DAY" means any day other than (a) a Saturday or Sunday, or
(b) a day on which banking or savings and loan institutions in the States of New
York, Missouri or Delaware are authorized or obligated by law or executive order
to be closed.
"CLOSING DATE" means June 28, 2005.
"COLLATERAL" means the Financed Vehicles and any other Conveyed
Asset.
"COLLECTION PERIOD" means a calendar month.
"COLLECTIONS" means, with respect to each Receivable, without
duplication:
(i) all payments on account of interest and principal;
(ii) all Liquidation Proceeds;
(iii) all Insurance Proceeds (other than proceeds to be applied to
the restoration or repair of the related Financed Vehicle or released to the
related Obligor in accordance with the terms of the related Receivable);
(iv) any Deficiency Balance recoveries payable pursuant to Section
4.02(b);
(v) any rebate of an unearned insurance premium, service warranty
or other amount received by the Servicer which was financed in the contract for
a Financed Vehicle;
(vi) any Supplemental Servicing Fees collected by and paid to the
Servicer; and
(vii) any other amounts received by the Servicer in respect of a
Receivable;
PROVIDED, THAT "COLLECTIONS" does not include costs and expenses incurred by the
Servicer for or on behalf of an Obligor (such as retitling costs) that such
Obligor repays to the Servicer.
"COLLECTOR" shall have the meaning set forth in Section 4.02(b).
"COMMISSION" means the Securities and Exchange Commission.
"COMMITMENT PERIOD" means the period from the date hereof to a
Commitment Termination Event.
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"COMMITMENT TERMINATION EVENT" means the earlier to occur of (i) the
occurrence of a Servicer Termination Event hereunder, (ii) the last day of the
Collection Period in which the final payment or liquidation of all the
Receivables occurred and (iii) the day the Company elects to terminate this
Agreement after the Servicer withholds its consent to assignment in accordance
with Section 13.09(b).
"COMPANY INDEMNIFIED PARTY" means the Servicer and any of its
officers, directors, agents and employees.
"COMPANY INDEMNIFIED CLAIM" shall have the meaning set forth in
Section 8.04(b).
"CONTRACT RATE" means, with respect to each Receivable, the annual
rate of interest applicable to such Receivable stated in the applicable loan or
installment sale contract.
"CONVEYED ASSETS" means, collectively:
(i) the Receivables;
(ii) all interest, principal, and any other amounts received by the
Seller on or with respect to each of the Receivables after the Cut-Off Date;
(iii) the security interests in the Financed Vehicles granted by the
Obligors pursuant to the Receivables and any other interest of the Seller in the
Financed Vehicles;
(iv) all other security interests or other property interests
created by or constituting each Receivable and on any property that shall have
secured the Receivable and that shall have been acquired by or on behalf of the
Seller;
(v) all of the Seller's rights with respect to each Receivable and
the contents of each Receivable File, including, without limitation, all of the
Seller's enforcement and other rights under the UCC and other Applicable Law;
(vi) rebates of premiums on insurance policies and all other items
financed as part of the Receivables in effect as of the Cut-Off Date, including
but not limited to, service warranties; and
(vii) all proceeds in any way related to and rights to enforce, any
of the foregoing, including, without limitation, any Insurance Proceeds and
Liquidation Proceeds.
"CUT-OFF DATE" means the close of business on June 24, 2005.
"DEFAULTED RECEIVABLE" means, with respect to any Collection Period,
a Receivable (a) which, at the end of such Collection Period, is deemed
uncollectible by the Servicer in accordance with the Servicing Standard, (b) in
respect of which the related Financed Vehicle has been repossessed and
liquidated, (c) in respect of which the Servicer has repossessed and held the
related Financed Vehicle in its repossession inventory for 60 (sixty) days or
more,
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(d) which by the end of the month becomes 120 days past due and is not in
repossession inventory or (e) which by the end of the month becomes 180 days
past due.
"DEFAULT PERCENTAGE" means, with respect to any Determination Date,
the average of the Monthly Default Percentages for the three (3) preceding
Collection Periods (or if prior to three (3) months from the Closing Date, the
number of whole Collection Periods since the Closing Date).
"DEFAULT TRIGGER" means, for any Determination Date, a percentage to
be agreed by the parties hereto; provided, however, that if the parties cannot
agree on such percentage, the Default Trigger shall be equal to the product of
1.35 times the Default Percentage for the March 2006 Determination Date;
provided further, however, that the Default Trigger shall be 100% for any
Determination Date for which the aggregate Principal Balance of the Receivables
at the end of the preceding Collection Period is less than 10% of the aggregate
Principal Balance of the Receivables on the Servicing Transfer Date.
"DEFICIENCY BALANCE" means the outstanding Principal Balance of a
Defaulted Receivable remaining unpaid after the application, to reduce the
Principal Balance of such Receivable, of all Liquidation Proceeds and Insurance
Proceeds received for such Defaulted Receivable and after all proceeds have been
received from the disposition of the related Financed Vehicle.
"DELINQUENCY PERCENTAGE" means, with respect to any Determination
Date, the average of the Monthly Delinquency Percentages for the three (3)
preceding Collection Periods (or if prior to three (3) months from the Closing
Date, the number of whole Collection Periods since the Closing Date).
"DELINQUENCY TRIGGER" means, for any Determination Date, a
percentage to be agreed by the parties hereto; provided, however, that if the
parties cannot agree on such percentage, the Delinquency Trigger shall be equal
to the product of 1.35 times the Delinquency Percentage for the March 2006
Determination Date; provided further, however, that the Delinquency Trigger
shall be 100% for any Determination Date for which the aggregate Principal
Balance of the Receivables at the end of the preceding Collection Period is less
than 10% of the aggregate Principal Balance of the Receivables on the Servicing
Transfer Date.
"DETERMINATION DATE" means, with respect to any Collection Period,
the fourth Business Day preceding the related Remittance Date, beginning
September 9, 2005.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"FINANCED VEHICLE" means a new or used automobile or light truck
which secures a Receivable.
"GOVERNMENTAL AUTHORITY" means the government of the United States
of America, any other nation or any political subdivision thereof, whether
state, federal, provincial or local, and any agency, authority, instrumentality,
regulatory body, court, administrative court
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or judge, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"INSURANCE PROCEEDS" means proceeds of any insurance policy or
service warranty related to a Receivable or the related Collateral, to the
extent such proceeds are to be used to reduce the Principal Balance of such
Receivable and are not to be applied to the restoration of the related Financed
Vehicle or released to the Obligor in accordance with Applicable Law.
"LIQUIDATION PROCEEDS" means cash (other than Insurance Proceeds) in
excess of the costs of liquidation on an aggregate basis received in connection
with the liquidation of any Defaulted Receivable, whether through the sale or
assignment of such Receivable, trustee's sale or otherwise, including the sale
or other disposition of the related Financed Vehicle.
"MONTHLY DEFAULT PERCENTAGE" means, with respect to any Collection
Period, a fraction (expressed as a percentage), the numerator of which is the
aggregate Principal Balance of all Receivables that as of the end of such
Collection Period are Defaulted Receivables, and the denominator of which is the
aggregate Principal Balance of the Receivables (excluding Defaulted Receivables)
as of the end of such Collection Period.
"MONTHLY DELINQUENCY PERCENTAGE" means, with respect to any
Collection Period, a fraction (expressed as a percentage), the numerator of
which is the aggregate Principal Balance of all Receivables that as of the end
of such Collection Period are thirty (30) or more days delinquent (excluding
Defaulted Receivables), and the denominator of which is the aggregate Principal
Balance of the Receivables (excluding Defaulted Receivables) as of such
Collection Period.
"MONTHLY PAYMENT" means the scheduled monthly payment of principal
and interest on a Receivable that is payable by an Obligor under the related
contract.
"MOODY'S" means Xxxxx'x Investors Service, Inc., and its successors.
"NET LIQUIDATION LOSSES" means, with respect to any Collection
Period, the amount, if any, by which (a) the aggregate Principal Balance of all
Receivables that became Defaulted Receivables during that Collection Period
exceeds (b) the Liquidation Proceeds, Insurance Proceeds and any Deficiency
Balance recoveries received during that Collection Period.
"OBLIGOR" means the obligor or obligors on a Receivable.
"OFFICER'S CERTIFICATE" means a certificate signed by any of the
following: (a) the chairman of the board, the vice chairman of the board, the
president, an executive vice president, a senior vice president, a vice
president, an assistant vice president, the treasurer, the secretary or (b) two
of the assistant treasurers and/or assistant secretaries of the Servicer, and
delivered to the Company as required by this Agreement.
"PERSON" means any individual, corporation, partnership, joint
venture, limited liability company, joint venture, association, joint-stock
company, trust, national banking
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association, unincorporated organization or Governmental Authority or any agency
or political subdivision thereof or any other entity.
"PRINCIPAL BALANCE" means, with respect to any Receivable, the
actual outstanding principal balance under the terms thereof.
"RATING AGENCY" means Moody's or Standard & Poor's and any other
nationally recognized statistical credit rating agency rating any security
issued in connection with any Securitization.
"RECEIVABLES" means all of the retail automobile and light truck
loan and installment sale contracts listed on the Receivable Schedule.
"RECEIVABLE FILE" means, with respect to each Receivable and only to
the extent such item was delivered to the Servicer:
(i) the original Receivable or a copy of the original Receivable
together with an affidavit as to the original Receivable;
(ii) the original credit application fully executed by the Obligor
or a photocopy thereof or a record thereof on a computer file or diskette or on
microfiche;
(iii) the original certificate of title, or if the original
certificate of title is required to be held by the agency, department or office
that issued such original certificate of title, a receipt thereof or any other
comparable document, or such documents kept on file, in accordance with its
customary standards, policies and procedures, evidencing the security interest
of the Seller in the related Financed Vehicle;
(iv) if the odometer reading of the Financed Vehicle at the time of
sale to the Obligor is not listed on the certificate of title or the original
credit application, the odometer statement; and
(v) any and all other documents that the Servicer keeps on file in
accordance with its customary procedures relating to a Receivable.
"RECEIVABLE SCHEDULE" means the schedule of retail automobile and
light truck loan and installment sale contracts annexed hereto as EXHIBIT B
(which list may be in electronic file, microfiche, disk or other means
acceptable to the Company).
"REMITTANCE DATE" means the 15th day (or if such 15th day is not a
Business Day, the first Business Day immediately preceding such date) of any
month.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"SECURITIZATION" means any (i) financing transaction that is payable
from or secured, directly or indirectly, by all or a portion of the Receivables,
(ii) sale or other transfer of all or a portion of the Receivables or (iii)
other asset securitization, secured loan, financing or
6
similar transaction involving all or a portion of the Receivables, including any
sale to or otherwise involving any conduit.
"SECURITIZATION DOCUMENT" means any transaction document or any
prospectus, offering document, term sheet, computational material or other
information filed with the Commission or delivered to any Rating Agency,
trustee, investor or other participant in connection with or during the term of
a Securitization, including (without limitation) any reports under the Exchange
Act.
"SERVICER ANNUAL CERTIFICATION" has the meaning set forth in 6.02.
"SERVICER INDEMNIFIED CLAIM" has the meaning set forth in 8.01(b).
"SERVICER INDEMNIFIED PARTIES" means (a) the Company, its
Affiliates, any subsequent purchaser or beneficial owner of the Receivables, (b)
in the event of any Securitization of some or all of the Receivables, any
trustee, underwriter, placement agent, initial purchaser, rating agency, any SPE
service company (i.e., any company providing "independent directors",
management, ownership or related services in connection with securitization
entities) or bond insurer in any of the transactions relating to the
Securitization and (c) any of their respective officers, directors, agents,
employees and "controlling persons" (within the meaning of the Securities Act or
the Exchange Act).
"SERVICER REPORTS" has the meaning set forth in 5.02(b).
"SERVICER TERMINATION EVENT" has the meaning set forth in Section
9.01(a)
"SERVICING ADVANCES" means all customary, reasonable and necessary
"out-of-pocket" costs and expenses (including reasonable attorney's fees and
disbursements) incurred in the performance by the Servicer of its servicing
obligations, including, but not limited to, the cost of (a) repossessing a
Financed Vehicle, (b) field call expenses and skip investigation costs, (c)
restoring and reconditioning a Financed Vehicle in preparation of such Financed
Vehicle for auction, (d) any enforcement or judicial proceedings, including
bankruptcy proceedings or (e) the sale or other disposition of repossessed
Financed Vehicles.
"SERVICING FEE" means the amount of the per annum fee the Company
shall pay to the Servicer on each Remittance Date, which shall, for a period of
one full month, be equal to one-twelfth of the product of (a) the Servicing Fee
Rate and (b) the Principal Balance of the Active Receivables as of the first day
of the prior Collection Period.
"SERVICING FEE RATE" means 0.33% per annum.
"SERVICING STANDARD" has the meaning set forth in Section 4.01(a).
"SERVICING TRANSFER DATE" means July 31, 2005 or such other date as
may be mutually agreed by the parties.
"SUPPLEMENTAL SERVICING FEE" means any late fees, prepayment
charges, non-sufficient fund fees, non-recurring ACH fees, extension fees and
other administrative fees
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and expenses or similar charges allowed by Applicable Law collected by the
Servicer (from whatever source) on the Receivables during each Collection
Period.
"STANDARD AND POOR'S" means Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors.
"TRUST ACCOUNT" has the meaning set forth in Section 4.03.
"UCC" means the Uniform Commercial Code in effect in the relevant
jurisdiction.
Section 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any instrument governed hereby and in any certificate or
other document made or delivered pursuant hereto unless otherwise defined
therein.
(b) As used in this Agreement, in any instrument governed hereby
and in any certificate or other document made or delivered pursuant hereto or
thereto, accounting terms not defined in this Agreement or in any such
instrument, certificate or other document, and accounting terms partly defined
in this Agreement or in any such instrument, certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles as in effect on the date of this
Agreement or any such instrument, certificate or other document, as applicable.
To the extent that the definitions of accounting terms in this Agreement or in
any such instrument, certificate or other document are inconsistent with the
meanings of such terms under generally accepted accounting principles, the
definitions contained in this Agreement or in any such instrument, certificate
or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; the term
"including" shall mean "including without limitation"; and "or" shall include
"and/or".
(d) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or instruments)
references to all attachments thereto and instruments incorporated therein;
references to a Person are also to its permitted successors and assigns.
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ARTICLE II
EFFECTIVE DATE; APPOINTMENT AND CUSTODY
Section 2.01 EFFECTIVE DATE; APPOINTMENT OF SERVICER.
(a) This Agreement shall become effective on the Servicing
Transfer Date.
(b) The Company hereby appoints the Servicer as its agent in
connection with the performance of the duties and services described herein. SST
agrees to assume the duties of the Servicer, acting for the benefit of the
Company, as described in this Agreement and the attached EXHIBIT A in connection
with the Receivables.
Section 2.02 CUSTODY OF THE RECEIVABLES FILES.
(a) The Servicer shall acknowledge receipt of the Receivable File
for each Receivable listed in the Receivable Schedule. As evidence of its
acknowledgement of such receipt of such Receivables Files, the Servicer shall
execute and deliver to the Company the Acknowledgement of Receipt attached as
EXHIBIT G hereto promptly after such receipt.
(b) The Servicer shall hold, as custodian for the Company (as the
owner thereof), the Receivable Files for the sole purpose of facilitating the
servicing and the supervision of the servicing of such Receivables. For the
avoidance of doubt, SST shall not be required to act as custodian for the
Company at any time that SST is not the Servicer hereunder.
(c) As custodian on behalf of the Company, the Servicer shall act
with reasonable care, using that degree of skill and attention that the Servicer
exercises with respect to the receivable files relating to all comparable motor
vehicle receivables that the Servicer services for itself or others. The
Servicer shall conduct, or cause to be conducted, periodic internal audits of
the Receivable Files held by it under this Agreement and of the related
accounts, records and computer systems, in such a manner as shall enable the
Company to verify the accuracy of the Servicer's record keeping. The Servicer
shall promptly report to the Company any failure on its part to hold the
Receivable Files and maintain its accounts, records and computer systems as
herein provided and shall promptly take appropriate action to remedy any such
failure. Nothing herein shall be deemed to require an initial review or any
periodic review by the Company of the Receivable Files.
(d) In the event the Receivable Files held by the Servicer are
destroyed due to fire or other casualty, the Servicer will bear the
responsibility for (i) having new titles issued for each Financed Vehicle and
providing printed copies of the destroyed title from the Servicer's imaging
system which shall remain in the Receivable File until such new titles are
received, (ii) replacing each Receivable (by printing a copy thereof held on the
Servicer's imaging system), and (iii) creating a lost note affidavit to
accompany each replaced Receivable, certifying that the original Receivable was
destroyed; PROVIDED, HOWEVER, that in the event any additional document is
needed in order to service the Receivable, the Servicer shall print a copy
thereof from its imaging system. All costs incurred in connection with this
Section 2.02(d) shall be paid by the Servicer and the Servicer shall indemnify
the Company for any losses suffered by the Company as a result of the loss or
destruction of the original Receivable Files.
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(e) Upon request from the Company, the Servicer will release any
document in the Receivable Files to the Company or its designee; provided that
(i) such release of documents will not interfere with the Servicer's ability to
service the Receivables in accordance with the terms of this Agreement and (ii)
if a Servicer Termination Event has not occurred, the Company will reimburse the
Servicer for any reasonable costs and expenses incurred in effecting such
release. Any document so released will be handled by the Company or its designee
with due care and returned to the Servicer as soon as such Person no longer has
a need for such document. If a Servicer Termination Event has occurred and is
continuing, access to the Receivables Files and the release of any document in
the Receivables Files will be at the sole cost and expense of the Servicer.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 REPRESENTATIONS AND WARRANTIES OF THE SERVICER.
(a) DUE ORGANIZATION AND QUALIFICATION. The Servicer (A) is a
corporation duly incorporated and validly existing under the laws of the State
of Delaware, (B) is in good standing under such laws and (C) is duly qualified
to transact business and is in good standing in each jurisdiction in the United
States of America in which the conduct of its business or the ownership of its
property requires such qualification.
(b) POWER AND AUTHORITY; DUE AUTHORIZATION; ENFORCEABILITY. This
Agreement and all other instruments or documents to be delivered hereunder or
pursuant hereto, and the transactions contemplated hereby, have been duly
authorized by all necessary proceedings of the Servicer. This Agreement has been
duly and validly executed and delivered by the Servicer and, assuming due
authorization, execution and delivery by the Company, this Agreement is a valid
and legally binding agreement of the Company enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of creditors'
rights generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(c) NO VIOLATION. The Servicer is not in default under any
indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement or similar agreement or instrument to which the Servicer is a party,
as borrower or guarantor, and the consummation of the transactions contemplated
by this Agreement, and the fulfillment of the terms hereof and thereof, will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute (with or without notice or lapse of time or both) a default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of the Servicer pursuant to the terms of, any such
indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement or similar agreement or instrument, in each case where such a default,
conflict or breach would materially and adversely affect the performance by the
Servicer of its obligations under this Agreement and the consummation of the
transactions contemplated hereby; and the fulfillment of the terms hereof and
thereof will not result in any violation of the provisions of the organizational
documents of the Servicer.
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(d) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the Servicer's knowledge, threatened against the Servicer, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Servicer or its
properties (A) asserting the invalidity of this Agreement, (B) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement, or (C) seeking any determination or ruling that might materially and
adversely affect the performance by the Servicer of its obligations under, or
the validity or enforceability of, this Agreement or (D) that could have a
material adverse effect on the Receivables.
(e) LICENSES AND APPROVALS. The Servicer has obtained all the
licenses and approvals necessary for the conduct of Servicer's business in the
jurisdictions where the failure to do so would materially and adversely affect
its performance of its obligations under this Agreement.
(f) ABILITY TO PERFORM. The Servicer has the facilities,
procedures and experienced personnel necessary for the servicing of retail motor
vehicle loan and installment sale contracts of the same type as the Receivables
in accordance with the Servicing Standard. The Servicer does not believe, nor
does it have any reason or cause to believe, that it cannot perform each and
every one of its obligations under this Agreement.
(g) NO CONSENT REQUIRED. The Servicer is not required to obtain
the consent of any other Person, or any consent, license, approval or
authorization or make any registration, filing or declaration with, any
Governmental Authority, bureau or agency in connection with the execution,
delivery or performance of this Agreement.
(h) NO LITIGATION PENDING. There is no action, suit, proceeding or
investigation pending or, to the Servicer's knowledge, threatened against the
Servicer or any of its Affiliates which, if determined adversely against the
Servicer, would materially adversely affect the execution, delivery or
enforceablility of this Agreement, or draw into question the validity of this
Agreement or have a material adverse effect on the financial condition of the
Servicer or the Servicer's ability to perform its obligations under the terms of
this Agreement.
(i) ERRORS AND OMISSIONS/CRIME POLICIES. The Servicer has in place
the errors and omissions and/or blanket crime policies required to be maintained
pursuant to Section 4.05.
(j) NO BAILEE NOTIFICATION. The Servicer has not been notified by
any party that such third party claims an interest in the Receivables or is
requesting the Servicer to act as a bailee with respect to the Receivable Files
or the other Receivables.
(k) ADVERSE INTEREST. The Servicer holds no adverse interest, by
way of security or otherwise, in any Receivable; and the execution of this
Agreement and the creation of the relationship hereunder does not create any
interest, by way of security or otherwise, of the Servicer in or to any
Receivable.
Section 3.02 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) DUE ORGANIZATION. The Company is a statutory trust duly
formed, validly existing and in good standing under the laws of the State of
Delaware. The Company has full
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power and authority to enter into this Agreement and to carry out the provisions
of this Agreement.
(b) POWER AND AUTHORITY; DUE AUTHORIZATION; ENFORCEABILITY. This
Agreement and all other instruments or documents to be delivered hereunder or
pursuant hereto, and the transactions contemplated hereby, have been duly
authorized by all necessary proceedings of the Company. This Agreement has been
duly and validly executed and delivered by the Company and assuming due
authorization, execution and delivery by the Servicer, this Agreement is a valid
and legally binding agreement of the Company enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of creditors'
rights generally and by equitable limitations on the availability of specific
remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(c) NO VIOLATION. The execution and delivery of this Agreement by
the Company hereunder and the compliance by the Company with all provisions of
this Agreement do not conflict with or violate any Applicable Law, regulation or
order and do not conflict with or result in a breach of or default under any of
the terms or provisions of any contract or agreement to which the Company is
subject or by which it or its property is bound, nor does such execution,
delivery or compliance violate the formation documents of the Company.
(d) REPRESENTATIONS AND WARRANTIES. Ohio Savings Bank has made
certain representations and warranties with respect to the Receivables for the
benefit of the Company, including without limitation, the representations and
warranties set forth on EXHIBIT H.
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.01 SERVICER.
(a) The Servicer, as an independent contractor, shall manage,
service, administer and make Collections on the Receivables and perform the
other actions required by the Servicer under this Agreement, all in accordance
with all Applicable Laws. The Servicer's duties include, but are not limited to,
collection and posting of all payments, responding to inquiries of the Obligors
on such Receivables, investigating delinquencies, sending payment statements to
Obligors, reporting tax information to Obligors, monitoring the Conveyed Assets,
accounting for Collections, and furnishing the Servicer Reports and annual
statements required pursuant to Sections 5.02 and 6.03. The Servicer will
service the Receivables in accordance with the servicing standard set forth in
EXHIBIT A or in the event that EXHIBIT A does not specify a standard with
respect to a particular servicing function, in accordance with its usual and
customary procedures consistent with the procedures employed by institutions
that service motor vehicle retail installment contracts or motor vehicle
installment loan notes for their own account or for the account of third parties
(the foregoing, the "SERVICING STANDARD"). The parties hereto agree that EXHIBIT
A shall be renegotiated after the date of this Agreement and prior to the
Scheduled Servicing Transfer Date; provided, however, that if EXHIBIT A is not
renegotiated to be in form and substance satisfactory to both parties prior to
the Scheduled Servicing Transfer Date,
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then the Servicer agrees to service the Receivables in accordance with the
servicing standard currently set forth in EXHIBIT A and otherwise in accordance
with this Agreement.
(b) The Servicer may, in accordance with the Servicing Standard,
grant extensions on a Receivable with respect to a Receivable for which the
related Obligor is delinquent for failure of payment. The Servicer shall not
grant more than one (1) extension on such Receivable in any calendar year and
not more than three (3) extensions after the Servicing Transfer Date on any such
Receivable and shall not extend the date for the final payment by any Obligor of
any Receivable beyond six (6) months of the original final payment date of such
Receivable. As necessary to maximize collections on the Receivables and in
accordance with its Servicing Standards, the Servicer may in its discretion
waive any Supplemental Servicing Fee that may be collected in the ordinary
course of servicing a Receivable.
(c) Without limiting the generality of the foregoing, the Servicer
is hereby authorized and empowered, to execute and deliver on behalf of itself
and the Company, all instruments of satisfaction or cancellation, or of partial
or full release, discharge and all other comparable instruments, with respect to
the Receivables and Financed Vehicles. If the Servicer commences a legal
proceeding to enforce a Receivable, the Company will thereupon be deemed to have
automatically assigned, solely for the purpose of collection, such Receivable to
the Servicer. If in any enforcement suit or legal proceeding it shall be held
that the Servicer may not enforce a Receivable on the ground that it is not a
real party in interest or a holder entitled to enforce the Receivable, the
Servicer may, with the prior written approval of the Company, maintain such
enforcement suit or legal proceeding in the name of the Company or an affiliate.
If reasonably required by the Servicer, the Company shall furnish the Servicer,
with any powers of attorney and other documents necessary or appropriate to
enable the Servicer to carry out its servicing and administrative duties under
this Agreement.
(d) The Servicer shall, consistent with the Servicing Standard and
at the expense of the Company, take such steps as are necessary to maintain
perfection of the security interest created by each Receivable in the related
Financed Vehicle in favor of the Company and its successors and assigns. The
Servicer is hereby authorized to take such steps as are necessary to re-perfect
such security interest on behalf of the Company and its successors and assigns
in the event of the relocation of the related Financed Vehicle, or for any other
reason.
(e) Except as permitted by the Servicing Standard, the Servicer
shall not, other than as required by Applicable Law (i) release the Financed
Vehicle securing each Receivable from the security interest granted by such
Receivable in whole or in part except in the event of payment in full (or within
$25 thereof) by or on behalf of the Obligor thereunder or repossession, (ii)
impair the rights of the Company in the Receivables, (iii) change the Contract
Rate with respect to any Receivable, or (iv) modify the Principal Balance or the
total number of originally scheduled due dates of any Receivable.
(f) The Servicer shall comply with Applicable Law in connection
with the satisfaction of a Receivable and the release of Receivable Files.
Section 4.02 REALIZATION OF RECEIVABLES.
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(a) In the event that any payment due under any Receivable is not
paid when the same becomes due and payable, or in the event the related Obligor
fails to perform any other covenant or obligation under the Receivable and such
failure continues beyond any applicable grace period, the Servicer shall take
such action (i) which shall be consistent with Servicing Standard and (ii) that
it shall determine prudently to be in the best interest of the Company. In
connection herewith, the Servicer shall from its own funds make all necessary
and proper Servicing Advances, subject to reimbursement pursuant to Section
4.04(c); PROVIDED, HOWEVER, that the foregoing shall not be construed to require
Servicer to undertake repossession, restoration or preservation of any Financed
Vehicle, and the Servicer shall not take such actions, unless the Servicer shall
determine in its reasonable judgment that such preservation, restoration and/or
repossession will increase the proceeds of liquidation of the Receivable to the
Company after reimbursement to itself for such expenses.
(b) In connection with any Deficiency Balance, the Servicer in
accordance with the Servicing Standards will refer the related account to (x)
its routinely preferred third party collector or (y) such other third party
collector as approved by the Company (the entity hired pursuant to clause (x) or
(y), the "COLLECTOR"), which will pursue collection of such Deficiency Balance
if, in the Servicer's reasonable judgment referral of such account to the
Collector will maximize recovery of the Deficiency Balance. In the event the
Servicer refers the related account to the Collector, the Servicer shall no
longer remain obligated or be liable to any other party for the collection of
such Receivable. The Servicer shall, in accordance with Section 5.01, remit to
the Company any amounts collected by it or remitted to it by the Collector in
regards to such Deficiency Balance.
Section 4.03 COLLECTIONS RELATED TO THE RECEIVABLES. The Servicer
shall maintain and control a bank account separate from its general corporate
bank accounts (the "TRUST ACCOUNT") at the expense of the Company, where the
Servicer shall collect and hold in trust (for the benefit of the Company) all
Collections relating to the Receivables received in the immediately preceding
Collection Period from Obligors or other sources.
Section 4.04 PAYMENT OF SERVICING FEES AND EXPENSES.
(a) To compensate the Servicer for its services rendered
hereunder, the Company shall pay (or cause to be paid) the Servicer (i) the
Servicing Fee for each Collection Period on the related Remittance Date during
the Commitment Period and (ii) all Supplemental Servicing Fees received during
each Collection Period on the related Remittance Date during the Commitment
Period.
(b) The Servicer shall pay all expenses incurred by it in
connection with its servicing activities hereunder and shall not be entitled to
reimbursement thereof except to the extent specifically provided for herein.
(c) The Company shall reimburse (or cause to be reimbursed) the
Servicer for unreimbursed Servicing Advances for each Collection Period on the
related Remittance Date based on an invoice documenting such unreimbursed
Servicer Advances provided by the Servicer to the Company on the Determination
Date immediately preceding such Remittance
14
Date; provided, however, that such invoice of expenses must be itemized with
detail sufficient to permit the Company to understand the type and amount of
Servicer Advances being reimbursed.
(d) The Company shall reimburse (or cause to be reimbursed) the
Servicer for reasonable unreimbursed fees and expenses owed to any Collector for
each Collection Period on the related Remittance Date based on an invoice
documenting such unreimbursed fees and expenses provided by the Servicer to the
Company on the Determination Date immediately preceding such Remittance Date;
provided, however, that the aggregate amount paid by the Company on a Remittance
Date to reimburse the Servicer for the fees and expenses of the Collectors shall
not exceed the Collector Capped Amount for such Remittance Date. The "COLLECTOR
CAPPED AMOUNT" for any Remittance Date is an amount equal to the lesser of (i)
the sum of (A) the aggregate amount of recoveries made by the Collectors (taken
as a whole) with respect to Deficiency Balances during the related Collection
Period MULTIPLIED BY 30% and (B) costs and expenses of such Collectors (taken as
a whole) during the related Collection Period and (ii) the aggregate amount of
recoveries made by the Collectors (taken as a whole) with respect to Deficiency
Balances during the related Collection Period minus all contingency fees paid.
(e) If the Company fails to pay (or cause to be paid) any fees or
expenses of the Servicer required to be paid in accordance with Sections
4.04(a), (c) or (d), the Servicer shall send notice to the Company of such
failure ("PAYMENT FAILURE NOTICE"). If the Company fails to pay (or cause to be
paid) such fees or expenses in full within five Business Days of the receipt of
a Payment Failure Notice, then the Servicer may (at its option) deduct from the
required remittances to be made by the Servicer pursuant to Section 5.01 on any
Remittance Date an amount of any unpaid fees or expenses that have become past
due. If the Servicer elects to net remittances pursuant to the foregoing
sentence, then such fees and expenses of the Servicer shall be deemed to have
been paid by the Company.
Section 4.05 ERRORS AND OMISSIONS AND BLANKET CRIME INSURANCE. The
Servicer, shall maintain, at its own expense, an errors and omissions insurance
policy on all officers, employees or other persons acting in any capacity with
regard to the Receivables to handle funds, money, documents and papers relating
to the Receivables, which policy shall protect and insure the Servicer, against
losses, including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such persons. Such errors and omissions insurance policy shall
also protect and insure the Servicer, against losses in connection with the
release or satisfaction of Receivables without having obtained payment in full
of the indebtedness secured thereby. No provision of this Section 4.05 requiring
such errors and omissions insurance shall diminish or relieve the Servicer from
its duties and obligations as set forth in this Agreement. Nothing in the
preceding sentence shall limit any of the Servicer's indemnification obligations
under this Agreement.
ARTICLE V
PAYMENTS TO THE COMPANY
Section 5.01 REMITTANCES. The Servicer shall remit on a daily basis
by ACH transfer of immediately available funds to the Company at the account
transfer instructions set forth on EXHIBIT C (or as otherwise directed by the
Company from time to time in writing) all amounts constituting Collections on
Receivables within three Business Days (other than as
15
required in the next sentence) of the receipt thereof. Notwithstanding the
foregoing, the Servicer shall remit all amounts constituting Collections on
Receivables within two Business Days of the receipt thereof unless Standard &
Poor's and Xxxxx'x both agree to permit remittances within three Business Days
after receipt for a securitization of the Receivables with some or all of the
securities to be rated "AAA/Aaa" with no greater limitations or levels of credit
enhancement than similar securitizations of automobile and light-duty truck
receivables.
Section 5.02 SERVICER REPORTS.
(a) By no later than the close of business on the first Business
Day of each calendar week until termination of this Agreement, the Servicer
shall be required to deliver to the Company a copy of each weekly production
report in form and substance agreed to by the Company and the Servicer by July
15, 2005.
(b) The Servicer shall be required to deliver to the Company a
copy of each monthly remittance report (collectively, the "SERVICER REPORTS")
listed in EXHIBIT D. For the avoidance of doubt, the parties hereto agree each
Servicer Report shall be in form and substance agreed to by the Company and the
Servicer by July 15, 2005, and that the contents and scope of the Servicer
Reports set forth in EXHIBIT D is for discussion purposes. Without limiting the
foregoing, the Servicer agrees that it shall deliver to the Company no less
frequently than monthly loan-level data with respect to the Receivables.
(c) On each Determination Date, the Servicer shall provide to the
Company each of the Servicer Reports listed in EXHIBIT D attached hereto, with
respect to Collections for the preceding Collection Period, in hard copy or
electronic format as mutually agreed by the Servicer and the Company and each
Servicer Report shall contain a certification from an Officer of the Servicer
regarding the accuracy of the information contained therein.
(d) The Servicer shall be required to provide Ohio Savings Bank
with a copy of all loan-level data with respect to the Receivables that the
Servicer provides to the Company. Such information shall be provided on a
regular basis and no less frequently than monthly. The report will include
loan/account numbers and any other information necessary to permit Ohio Savings
Bank to identify the Receivable and the related Obligor.
(e) The Servicer agrees to provide reports to the Company, any
Affiliate of the Company or the holder of the applicable Receivables related to
its data aggregator responsibilities and perform such other duties in accordance
with Section 12.01(a)(ix). The Servicer acknowledges and agrees that the
Servicing Fee Rate includes compensation to the Servicer for its data
aggregation responsibilities pursuant to Section 12.01(a)(ix) related to the GS
Auto Loan Trust 2005-1 securitization, as well as such other responsibilities
mutually agreed in writing by the parties hereto.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 SATISFACTION OF RECEIVABLES AND RELEASE OF RECEIVABLE
FILES.
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(a) The Servicer shall comply with Applicable Law in connection
with the satisfaction of a Receivable and the release of Receivable Files.
Subject to the foregoing, upon the payment in full of any Receivable, or
otherwise in accordance with the Servicer's customary policies and procedures
consistent with the Servicing Standard, the Servicer is authorized to execute an
instrument in satisfaction of such Receivable and to do such other acts and
execute such other documents as the Servicer deems necessary to discharge the
Obligor thereunder and terminate the security interest in the Financed Vehicle
related thereto. To the extent that insufficient payments are received on a
Receivable credited by the Servicer as prepaid or paid in full and satisfied,
the shortfall shall be paid by the Servicer out of its own funds if the
shortfall is in excess of $25.
(b) The Servicer shall not (I) satisfy or release the Collateral
securing a Receivable without first having either (x) obtained voluntary payment
in full (or within $25 of payment in full) of the indebtedness secured by the
Collateral or (y) repossessed and liquidated such Collateral, or (II)(x)
otherwise prejudice any rights the Company may have under the Collateral
securing a Receivable (in addition to the rights of the Company in connection
therewith set forth in Section 4.01(h)) or (y) extend or otherwise amend the
terms of the Receivable (including any change of the Contract Rate applicable to
any Receivable or the Principal Balance or the total number of originally
scheduled due dates of any Receivable), except as provided in Sections 4.01(b)
and 4.01(e).
Section 6.02 ANNUAL STATEMENT AS TO COMPLIANCE. The Servicer shall
deliver to the Company on or before March 15 each year, beginning March 15,
2006, an Officer's Certificate (the "SERVICER ANNUAL CERTIFICATION") in
substantially the form of EXHIBIT E.
Section 6.03 ACCOUNTANTS' REPORTS.
(a) On or before March 15 of each year beginning March 15, 2006,
the Servicer, at the Company's expense, shall cause a firm of independent
certified public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a report to the Company (and consent of
such firm for inclusion of such report in any filings with the Securities and
Exchange Commission in connection with a Securitization) to the effect that such
firm has examined the documents or records of the Servicer relating to the
Receivables and that such examination (a) was made in accordance with generally
accepted auditing standards and (b) included tests relating to retail motor
vehicle loan and installment sale contracts serviced for others and that such
firm is of the opinion that the provisions of this Agreement have been complied
with during the preceding calendar year (or, with respect to the first report,
the period from the Closing Date to December 31st of such year), and that, on
the basis of such examination, nothing has come to their attention that would
indicate that such servicing has not been conducted in compliance therewith
during such calendar year or other period, except for (x) such exceptions as
such firm shall believe to be immaterial and (y) such other exceptions as shall
be set forth in such statement. The certification required by this Section
6.03(a) may be replaced by any similar certification using standards other than
those described above which are now or in the future in use by servicers of
comparable assets or which otherwise comply with any rule, regulation, "no
action" letter or similar guidance promulgated by the Commission.
17
(b) In connection with each Securitization and on or before March
15 of each year beginning March 15, 2006, the Servicer, at the Company's
expense, shall cause a nationally recognized certified public accountants
engaged by the Servicer from time to time that is a member of the American
Institute of Certified Public Accountants to furnish a letter the Company (and
consent of such firm for inclusion of such report in any filings with the
Securities and Exchange Commission in connection with a Securitization) covering
such matters relating to the Receivables as reasonably requested by the Company.
Section 6.04 RIGHT TO EXAMINE SERVICER RECORDS. The Company, or its
designee, shall have the right to examine and audit any and all of the books,
records, or other information of the Servicer, whether held by the Servicer or
by another on its behalf, with respect to or concerning this Agreement or the
Receivables, during business hours or at such other times as may be reasonable
under applicable circumstances, upon reasonable advance notice. The Company
shall pay its expenses associated with such examination.
ARTICLE VII
SERVICER TO COOPERATE
Section 7.01 PROVISION OF INFORMATION.
(a) Following a request by the Company, the Servicer shall furnish
to the Company within a reasonable time period such periodic, special, or other
reports or information, and copies or originals of any other documents contained
in the Receivable File for each Receivable provided for herein. All such
reports, documents or information shall be provided by and in accordance with
all reasonable instructions and directions which the Company may give.
(b) Promptly after the Servicer obtains knowledge thereof, the
Servicer shall furnish to the Company notice of any material litigation relating
to the Servicer or any material investigation or proceeding which may exist at
any time between the Servicer and any Governmental Authority which, in either
case, would have an impact on the Receivables or on the Servicer's ability to
act as Servicer hereunder with respect to the Receivables.
(c) The Servicer shall execute and deliver within a reasonable
time period all such instruments and take all such action as the Company may
reasonably request from time to time, in order to effectuate the purposes, and
to carry out the terms, of this Agreement.
(d) The Company shall pay all "out-of-pocket" expenses incurred by
the Servicer in complying with this Section 7.01.
Section 7.02 FINANCIAL STATEMENTS; SERVICING FACILITY. The Servicer,
upon two (2) Business Days notice, shall make available to the Company and any
Rating Agency, credit enhancer, prospective whole loan purchaser, accountant or
attorney a knowledgeable financial or accounting officer for the purpose of
answering questions respecting recent developments affecting the Servicer or the
financial statements of the Servicer, and to permit the Company and any Rating
Agency, credit enhancer, prospective whole loan purchaser, accountant or
attorney to inspect the Servicer's servicing facilities for the purpose of
satisfying the Company and such Rating Agency, credit enhancer, prospective
whole loan purchaser, accountant or attorney that
18
the Servicer has the ability to service the Receivables as provided in this
Agreement. Notwithstanding the foregoing, the Servicer need not comply with the
requirements of this Section 7.02 to the extent compliance would unreasonably
interfere in the Servicer's servicing operation.
ARTICLE VIII
INDEMNIFICATION; SERVICER COVENANTS
Section 8.01 INDEMNIFICATION OF THIRD PARTY CLAIMS BY THE SERVICER.
(a) The Servicer shall indemnify each Servicer Indemnified Party
and hold each Servicer Indemnified Party harmless against any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees and expenses that
any Servicer Indemnified Party may sustain in any way related to (A) the failure
of the Servicer to perform its duties as servicer and custodian and to service
the Receivables in compliance with the terms of this Agreement, (B) any alleged
untrue statement contained in any information provided by the Servicer
(including, without limitation, any information provided in connection with a
Securitization) or the alleged omission of a 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, (C) the breach of any representation or
warranty, covenant or other agreement of Servicer set forth in this Agreement or
(D) the use, ownership or operation by the Servicer or any Affiliate thereof of
a Financed Vehicle; PROVIDED, HOWEVER, that the Servicer shall not be liable for
any of the foregoing to the extent any such claims, losses, damages or penalties
were caused by incorrect information supplied to the Servicer by a predecessor
servicer.
(b) The Servicer shall be a third party beneficiary of the
indemnification provided by Ohio Savings Bank attached hereto as EXHIBIT F (the
"OSB INDEMNITY") which is contained in the Purchase Agreement between the
Company and Ohio Savings Bank. Such Purchase Agreement does not contain other
provisions which limit the Servicer's rights under the OSB Indemnity in any
material respect. The Company agrees that it shall not authorize or consent to
any amendments to the OSB Indemnity that would materially and adversely affect
the interests of the Servicer without the written consent of the Servicer. The
Company confirms that the Servicer is a third party beneficiary of the OSB
Indemnity, and that the OSB Indemnity by its terms survives the termination of
the agreement in which it is a provision thereof.
(c) The Servicer or the Servicer Indemnified Party, as applicable,
shall promptly notify the other upon becoming aware that a claim subject to
indemnification under Section 8.01(a) (a "SERVICER INDEMNIFIED CLAIM") has been
made by a third party; PROVIDED, HOWEVER, that the failure of the Servicer
Indemnified Party to notify the Servicer of a Servicer Indemnified Claim shall
not relieve the Servicer from any liability under Section 8.01(a) which it may
have to any Servicer Indemnified Party, but only to the extent such failure to
notify does not prejudice the Servicer's ability to defend. The Servicer shall
assume the defense of any such Servicer Indemnified Claim and be responsible for
all fees and expenses of counsel incurred therewith as well as any other
litigation expenses; PROVIDED, HOWEVER, THAT counsel chosen by the Servicer
shall be reasonably acceptable to the Company; and PROVIDED FURTHER, HOWEVER,
that at any time the Servicer Indemnified Party shall be entitled to participate
therein and, to the extent
19
that it shall wish, hire counsel (who shall not, except with the consent of the
Servicer, be counsel to the Servicer) and, jointly with the Servicer, assume the
defense thereof. The Servicer shall not be liable to the Servicer Indemnified
Party for the cost of the Servicer Indemnified Party's counsel. If, in
connection with any Servicer Indemnified Claim, the actual or potential
defendants in, or targets of, any such action include both the Servicer and the
Servicer Indemnified Party, and counsel retained by the Servicer cannot
adequately represent both the Servicer and the Servicer Indemnified Party in
light of the claims and defenses that each intends to raise, the Servicer
Indemnified Party shall have the right to hire separate counsel to assume the
defense of any such Servicer Indemnified Claim and the Servicer shall be
responsible for all fees and expenses of such separate counsel incurred
therewith as well as any other litigation expense. The Servicer shall not,
without the written consent of the Servicer Indemnified Party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the Servicer Indemnified
Party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of the
Servicer Indemnified Party from all liability arising out of such action or
claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or failure to act, by or on behalf of the Servicer Indemnified
Party.
(d) The indemnification obligations under this Agreement shall
survive the assignment and transfer of the Receivables in connection with any
Securitization, the termination of the Servicer and the termination of this
Agreement and shall be in addition to any liability which it may otherwise have.
Section 8.02 MERGER OR CONSOLIDATION OF THE SERVICER. The Servicer
shall preserve its qualification to do business 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 Receivables and to perform its
duties under this Agreement.
Any Person into which the Servicer may be merged or consolidated, or
any entity 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 be the successor of the Servicer hereunder, without the
execution or filing of any paper or any further act on the part of either Party,
anything herein to the contrary notwithstanding; PROVIDED, HOWEVER, that
immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 3.01(a) shall have been breached (for purposes
hereof, the representations and warranties set forth in Sections 3.01(a) through
(h) shall speak as of the date of consummation of such transaction) and no event
that, with notice or lapse of time or both, would become a Servicer Termination
Event shall have occurred and be continuing.
Section 8.03 LIMITATION ON RESIGNATION AND ASSIGNMENT BY SERVICER.
(a) The Company has entered into this Agreement with the Servicer,
and subsequent permitted purchasers or transferees pursuant to any
Securitization will purchase the Receivables, in reliance upon the
representations as to the adequacy of Servicer's servicing facilities, plant,
personnel, records and procedures, its integrity, reputation and financial
standing, and the continuance thereof. Therefore, the Servicer shall neither
assign this
20
Agreement or its the servicing or custodial obligations hereunder, nor delegate
its rights or duties hereunder or any portion hereof; provided, however, that
the Servicer may, at any time without notice or consent, delegate specific
duties under this Agreement in accordance with the Servicing Standards to
sub-contractors who are in the business of performing such duties; provided,
further, that no such delegation shall relieve the Servicer of its
responsibilities with respect to such duties and the Servicer shall remain
obligated and liable to the Company as if the Servicer alone were performing
such duties.
(b) The Servicer shall not resign from the obligations and duties
hereby imposed on it, except by mutual consent of the Servicer and the Company
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 acceptable to the Company to such effect delivered to
the Company. No resignation under this Section 8.03 shall become effective until
a successor shall have assumed the Servicer's responsibilities and obligations
hereunder in the manner provided in Section 11.01, unless the Servicer is
prohibited by Applicable Law from serving as Servicer, in which instance the
Company shall immediately designate a successor Servicer.
Section 8.04 INDEMNIFICATION OF THIRD PARTY CLAIMS BY THE COMPANY.
(a) The Company shall indemnify each Company Indemnified Party and
hold each Company Indemnified Party harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and any other costs, fees and expenses that any
Company Indemnified Party may sustain arising from in any way related to (a) any
alleged untrue statement of any material fact by the Company in any prospectus
or other offering document in any Securitization (excluding any information in
whole or in part provided by, or derived from information provided by, the
Servicer or Ohio Savings Bank), or (b) the breach of any representation or
warranty, covenant or other agreement of the Company set forth in this
Agreement.
(b) The Company or the Company Indemnified Party, as applicable,
shall promptly notify the other upon becoming aware that a claim subject to
indemnification under section 8.04(a) (a "COMPANY INDEMNIFIED CLAIM") has been
made by a third party; PROVIDED, HOWEVER, that the failure of the Company
Indemnified Party to notify the Company of a Company Indemnified Claim shall not
relieve the Company from any liability under Section 8.04(a) which it may have
to any Company Indemnified Party, but only to the extent such failure to notify
does not prejudice the Company's ability to defend. The Company shall assume the
defense of any such Company Indemnified Claim and be responsible for all fees
and expenses of counsel incurred therewith as well as any other litigation
expenses; PROVIDED, HOWEVER, THAT counsel chosen by the Company shall be
reasonably acceptable to the Servicer; and PROVIDED FURTHER, HOWEVER, that at
any time the Company Indemnified Party shall be entitled to participate therein
and, to the extent that it shall wish, hire counsel (who shall not, except with
the consent of the company, be counsel to the Company) and, jointly with the
Company, assume the defense thereof. The Company shall not be liable to the
Company Indemnified Party for the cost of the Company Indemnified Party's
counsel. If, in connection with any Company Indemnified Claim, the actual or
potential defendants in, or targets of, any such action include both the Company
and
21
the Company Indemnified Party, and counsel retained by the Company cannot
adequately represent both the Company and the Company Indemnified Party in light
of the claims and defenses that each intends to raise, the Company Indemnified
Party shall have the right to hire separate counsel to assume the defense of any
such Company Indemnified Claim and the Company shall be responsible for all fees
and expenses of such separate counsel incurred therewith as well as any other
litigation expense. The Company shall not, without the written consent of the
Company Indemnified Party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification may be sought hereunder (whether or
not the Company Indemnified Party is an actual or potential party to such action
or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the Company Indemnified Party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or failure to act, by or on behalf of the
Company Indemnified Party.
(c) The indemnification obligations under this Agreement shall
survive the termination of this Agreement and shall be in addition to any
liability which the Company may otherwise have.
ARTICLE IX
SERVICER TERMINATION EVENT
Section 9.01 SERVICER TERMINATION EVENTS. (a) Each of the following
shall constitute a Servicer Termination Event (each, a "SERVICER TERMINATION
EVENT"):
(i) any failure by the Servicer to remit to the Company (x) any
payment or remittance to be made pursuant to SECTION 5.01 that continues
unremedied for a period of one (1) Business Day after the date upon which
such payment was due or (y) any payment or remittance required to be made
under the terms of this Agreement (other than any payment to be made
pursuant to SECTION 5.01) that continues unremedied for a period of three
(3) Business Days after the date upon which such payment or remittance was
due;
(ii) 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 thirty (30) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer, by the Company;
(iii) failure by the Servicer to maintain its license to do business
in any jurisdiction where the Servicer is required to be licensed in
connection with the servicing of the Receivables or the performance of its
other obligations under this Agreement, which continues unremedied for a
period of forty-five (45) days after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to
the Servicer, by the Company;
22
(iv) any change in the business, assets, operations or financial
condition, of the Servicer that has a material adverse effect on the
ability of the Servicer to perform any of its obligations under this
Agreement which remains uncured for a period of five Business Days;
(v) (1) The Servicer or any direct or indirect parent shall
commence a voluntary case concerning itself under the Bankruptcy Code, (2)
a custodian is appointed for, or takes charge of, all or any substantial
part of the property of the Servicer or any direct or indirect parent, (3)
the Servicer or its parent commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Servicer or its parent,
(4) the Servicer or any direct or indirect parent is adjudicated insolvent
or bankrupt, (5) the Servicer or any direct or indirect parent makes a
general assignment for the benefit of creditors, (6) the Servicer or any
direct or indirect parent shall fail to pay, or shall state that it is
unable to pay, or shall be unable to pay, its debts generally as they
become due, (7) the Servicer or any direct or indirect parent shall call a
meeting of its creditors with a view to arranging a composition or
adjustment of its debts, or (8) the Servicer or any direct or indirect
parent shall by any act or failure to act indicate its consent to,
approval of or acquiescence in any of the foregoing;
(vi) An involuntary case under the Bankruptcy Code is commenced
against the Servicer or its parent and is not dismissed within sixty (60)
days after commencement of the case or there is commenced against the
Servicer or its parent any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now
or hereafter in effect relating to the Servicer or its parent which
remains undismissed for a period of sixty (60) days;
(vii) the Servicer attempts to assign its right to servicing
compensation hereunder or to assign this Agreement or the servicing
responsibilities or custodial responsibilities hereunder or to delegate
its duties hereunder or any portion thereof in violation of Section 8.03;
(viii) the indictment of Servicer, any director or employee thereof,
any Affiliate or any director or employee thereof for criminal activity
related to the servicing activities of the Servicer, in each case, where
such indictment materially and adversely affects the ability of the
Servicer, as applicable, to perform its obligations under this Agreement
subject to the condition that such indictment is not dismissed within
ninety (90) days;
(ix) for any Determination Date on or after the Determination Date
occurring in March 2006, the Delinquency Percentage exceeds the
Delinquency Trigger;
(x) for any Determination Date on or after the Determination Date
occurring in March 2006, as of the last day of the related Collection
Period, the Default Percentage exceeds the Default Trigger for the first
24 Collection Periods, and the Default Trigger plus 0.50% for the
remaining Collection Periods;
23
(xi) Any breach by the Servicer of any representation or warranty
as set forth in Section 3.01 and such breach shall not be cured in all
material respects within thirty (30) consecutive days after the earlier of
(i) receipt of written notice from the Company to the Servicer or (ii)
upon discovery by the Servicer;
(xii) Any representation, warranty, certification or statement made
by the Servicer in this Agreement or in any certificate or report
delivered by it pursuant to this Agreement shall prove to have been
incorrect in any material respect when made or deemed made and such error
shall not be cured in all material respects within thirty (30) consecutive
days after the earlier of (i) receipt of written notice from the Company
to the Servicer or (ii) upon discovery by the Servicer;
(xiii) The Servicer shall materially modify its Servicing Standard,
unless the Company has determined in its reasonable discretion that such
modification is not materially adverse to the Company, PROVIDED that no
"Servicer Termination Event" shall have occurred and be continuing if the
Servicer reverses any modifications to the Servicing Standard determined
by the Company to be materially adverse;
(xiv) The Servicer ceases to be an Affiliate of JPMorgan Chase &
Co., unless the Company shall have given its prior written consent to any
change in the Servicer's affiliation with JPMorgan Chase & Co.; or
(xv) The long-term unsecured debt rating of JPMorgan Chase & Co. is
withdrawn or reduced below Baa2 by Xxxxx'x or BBB by Standard & Poor's.
(b) The Servicer shall deliver to the Company, promptly after
having obtained knowledge thereof, but in no event later than three (3) Business
Days thereafter, written notice in an Officer's Certificate of any event which
with the giving of notice or lapse of time, or both, would become a Servicer
Termination Event Section 9.01(a) above.
(c) In each case, so long as a Servicer Termination Event shall
not have been remedied, in addition to whatever rights the Company may have for
damages or equitable relief, including injunctive relief and specific
performance, except as may be limited by Section 8.03, the Company, by notice in
writing to the Servicer, may (i) terminate SST as the Servicer under this
Agreement and the servicing of the Receivables and the proceeds thereof; (ii)
give notice to each Obligor of the sale of the related Receivable to the Company
and that such Obligor shall, effective as of the date of such notice, remit all
Monthly Payments to an account specified by the Company or (iii) require the
Servicer to deliver within five (5) Business Days all Receivable Files to an
entity designated by the Company.
(d) Upon receipt by the Servicer of such written notice pursuant
to clause (c)(i) above, all authority and power of the Servicer under this
Agreement, whether with respect to the Receivables or otherwise, shall pass to
and be vested in the successor appointed pursuant to Section 11.01. Upon written
request from the Company, the Servicer shall prepare, execute and deliver to the
successor servicer designated by the Company any and all documents and other
instruments, place in such successor's possession all Receivable Files, and do
or cause to be done all other acts or things necessary or appropriate to effect
the purposes of such notice of
24
termination, including but not limited to the transfer and endorsement or
assignment of the Receivable Files, at the Servicer's sole expense. The Servicer
shall cooperate with the Company and such successor servicer 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 held by the Servicer with respect to
the Receivables or thereafter received with respect to the Receivables.
Section 9.02 WAIVER OF SERVICER TERMINATION EVENTS. By a written
notice, the Company may waive any Servicer Termination Event and its
consequences. Upon any waiver of a past default, such default shall cease to
exist, and any Servicer Termination Event 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. Notwithstanding the foregoing, if any
Servicer Termination Event that has occurred is continuing, unless and until the
Company shall waive such Servicer Termination Event by written notice, the
Company may by notice in writing to the Servicer in the manner provided in
Section 9.01(c), terminate the rights of the Servicer under this Agreement and
in and to the servicing and the custody of the Receivables and Receivable Files
and the proceeds thereof at any time thereafter.
ARTICLE X
TERM AND TERMINATION
Section 10.01 TERMINATION. This Agreement shall terminate upon the
earlier of (i) the later to occur of (A) the final payment or other liquidation
(or any advance with respect thereto) of the last maturing Receivable and (B)
the disposition of any Financed Vehicle with respect to the last Receivable and
the remittance of all funds due hereunder, (ii) the replacement of the Servicer
with a successor Servicer following the election by the Company to terminate
this Agreement pursuant to Section 13.09(b), after the Servicer withholds its
consent to an assignment or (iii) the mutual consent of the Servicer and the
Company in writing. The representations and warranties made in this Agreement
and the indemnification obligations set forth in this Agreement shall survive
the termination of this Agreement.
ARTICLE XI
SUCCESSOR TO SERVICER
Section 11.01 SUCCESSOR TO SERVICER. (A) Prior to termination of any
of the Servicer's responsibilities and duties under this Agreement pursuant to
Section 8.03, 9.01(c) or 10.01, the Company shall (i) succeed to and assume all
of the Servicer's responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor satisfying the conditions set forth in
Section 8.02 which successor shall succeed to all rights and assume all of the
responsibilities, duties and liabilities of the Servicer under this Agreement,
including as servicer and custodian, prior to the termination of the Servicer's
responsibilities, duties and liabilities under this Agreement. In connection
with such appointment and assumption, the Company may make such arrangements for
the compensation of such successor out of payments on Receivables as it and such
successor shall agree. In the event that the Servicer's duties, responsibilities
and liabilities under this Agreement should be terminated in whole or in part
pursuant to the aforementioned sections, the Servicer shall discharge such
duties and responsibilities during the
25
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, (x) shall take no action
whatsoever that might impair or prejudice the rights or financial condition of
its successor, (y) shall continue to receive the Servicing Fee and any other
amounts payable to the Servicer hereunder through but not including the day on
which a successor Servicer is appointed and (z) shall cooperate and take all
actions reasonably requested by the Company or the successor Servicer to effect
a smooth and efficient transition. The resignation or removal of the Servicer
pursuant to the aforementioned sections shall not become effective until a
successor shall be appointed pursuant to this Section 11.01 and shall in no
event relieve the Servicer of the representations and warranties made pursuant
to Section 3.01(a) and the remedies available to the Company under Sections
4.01(h) and 6.01, it being understood and agreed that the provisions of such
Sections 3.01(a), 4.01(h) and 6.01 shall be applicable to the Servicer
notwithstanding any such termination of the Servicer, or the termination of this
Agreement.
(b) Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Servicer and to the Company an instrument
accepting such appointment, wherein the successor shall make the representations
and warranties set forth in Section 3.01(a), whereupon such successor 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 of the Servicer or
termination of this Agreement pursuant to Section 8.03, 9.01 or 10.01 shall not
affect any claims that the Company may have against the Servicer arising out of
the Servicer's actions or failure to act prior to any such termination.
(c) The Servicer shall deliver promptly to the successor servicer
all Collections held by it in respect of the Receivables and all Receivable
Files 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.
(d) Any successor servicer shall be required to remit to the
Company all collections received with respect to the Receivables on a daily
basis unless otherwise agreed to by the Company.
ARTICLE XII
SECURITIZATION
Section 12.01 ASSISTANCE WITH SECURITIZATIONS.
(a) The Servicer acknowledges that the Company may, in the future,
from time to time sell or enter into financing or other arrangements with
respect to some or all of the Receivables in the form of one or more
Securitizations or other transactions. The Servicer agrees to take such actions
to assist the Company in connection therewith as the Company may reasonably
request (it being agreed that the Company shall pay the Servicer's reasonable
out-of-
26
pocket expenses paid to third parties in connection with such assistance),
including, without limitation:
(i) acting as a servicer or sub-servicer for such Securitization
(as directed by the Company, any Affiliate of the Company or the holder of
the applicable Receivables) in accordance with the terms of this Agreement
(or any agreement described in the next sentence) and continuing to act as
Servicer hereunder for any Receivables retained by the Company. At the
request of the Company, the Servicer shall enter into new agreements with
the holder of any Receivables in a Securitization, provided that the
Servicer shall not be obligated to enter into any agreement less favorable
to the Servicer than the terms of this Agreement;
(ii) making representations and warranties as of the closing date
of any such transaction (and providing an Officer's Certificate of the
Servicer to that effect) that the Servicer has complied with all of its
covenants and obligations hereunder and that the Servicer's
representations and warranties under this Agreement are true and correct
as of the Closing Date and the closing date of any such transaction;
(iii) cooperating fully with the Company with respect to the
preparation (including, but not limited to, the endorsement, delivery,
assignment and execution) of the Securitization Documents and other
related documents, and with respect to servicing requirements (including
amendments to this Agreement) requested by the rating agencies and credit
enhancers and that are consistent with Rating Agency or credit enhancer
requirements (as applicable) for Securitization transactions in which
"AAA" rated asset-backed securities are issued;
(iv) providing the Company with narrative statements and
statistical or other information reasonably requested by the Company which
may be used in any Securitization Document, including historical loss and
delinquency data and static pool data, and indemnifying the Servicer
Indemnified Parties for material misstatements or omissions contained in
such information or in this Agreement;
(v) providing (at the Company's expense) an agreed upon procedures
letter by an independent accounting firm acceptable to the Company and
such other verifications reasonably requested by the Company of
information provided by the Servicer;
(vi) providing reasonable access upon two (2) Business Days notice
to facilities, employees and information for rating agencies, credit
enhancers, prospective whole loan purchasers, accountants or attorneys to
those representatives of the Servicer with responsibility, knowledge or
experience with respect to the Receivables for the purpose of answering
questions in relation thereto, but only to the extent that providing such
reasonable access does not unreasonably interfere in the Servicer's
servicing operations;
(vii) delivering (at the Company's expense) opinions of counsel
dated as of the closing date of any such transaction requested by a Rating
Agency or credit enhancer or reasonably requested by the Company,
including an opinion that this Agreement is
27
enforceable against the Servicer under New York law, an opinion covering
general corporate matters with respect to the Servicer and an opinion or
an Officer's Certificate in form and substance acceptable to Company
providing a "negative assurance 10b-5 statement" relating to the
information provided by the Servicer pursuant to clause (iii) above;
(viii) cooperating with the Company and the trustee or similar
entity, at the expense of the Company or such other trustee or entity, to
satisfy, in connection with any Securitization, the applicable entity's
reporting obligations under the Exchange Act and Applicable Law, including
any certification necessary to comply in form and substance with the
Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder;
(ix) acting as data aggregator for all the receivables (including
the Receivables) in such Securitization and otherwise perform such other
administrative duties with respect to such Securitization as the parties
may mutually agree in writing no later than 5 Business Days prior to such
Securitization; provided, however, that such writing may be amended as the
parties may agree from time to time to reflect such additional
responsibilities reasonably requested by the Company, any Affiliate of the
Company or the holder of the applicable Receivables; and
(x) without limiting Section 8.01, indemnifying the Company for
any material misstatements contained in the information provided pursuant
to clause (i), (iii), (iv), (vi) or (ix) above in connection with any
Securitization, and entering into an indemnity agreement with the
depositor and the managing underwriter or initial purchaser in form and
substance acceptable to Company.
(b) In connection with the closing of any such Securitization or
other transaction, the Servicer will represent and warrant, and deliver to the
Company an Officer's Certificate to the effect, that any such information
delivered to the Company, and the disclosure relating thereto, is true and
correct and does not contain an untrue statement or the omission to state any
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.
Without limiting the generality of the foregoing, any request by the Company for
any information about the Servicer required by Regulation AB of the Commission
shall be deemed to be reasonable; provided, however, that the Servicer shall
have no obligation to provide any information to the extent that the provision
of such information would violate any law or any contractual restriction between
the Servicer and an unaffiliated third party that was entered into prior to the
delivery of such request by the Company.
(c) Following any Securitization or other transaction described in
this Section, the Servicer shall continue to service the Receivables and to be
responsible for its obligations under this Agreement, as applicable.
(d) This Section shall survive any termination of this Agreement.
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ARTICLE XIII
MISCELLANEOUS
Section 13.01 AMENDMENT. This Agreement may only be amended from
time to time by written agreement signed by the Servicer and the Company.
Section 13.02 GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. (A)
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b) In connection with any suit, claim, action or proceeding
arising out of or relating to this Agreement and the transactions contemplated
hereby, (i) each of the Servicer and the Company hereby consents to the in
personam jurisdiction of any court of the State of New York or any U.S. federal
court located in the Borough of Manhattan in the State of New York; (ii) each of
the Servicer and the Company agrees that service by prepaid certified or
registered mail, or any other form equivalent thereto (or, in the alternative,
by any other means sufficient under applicable law, rules and regulations) at
the addresses set forth in Section 13.04 shall be valid and sufficient for all
purposes; and (iii) each the Servicer and the Company agrees to, and irrevocably
waives any objection based on forum non conveniens or venue not to, appear in
such state or U.S. federal court located in the Borough of Manhattan.
(c) EACH OF THE SERVICER AND THE COMPANY HEREBY IRREVOCABLY AND
UNCONDITIONALLY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING BASED
ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY
OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS
OF THE SERVICER AND THE COMPANY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
COMPANY TO ENTER INTO THIS AGREEMENT.
Section 13.03 DURATION OF AGREEMENT. This Agreement shall continue
in existence and effect until terminated as herein provided.
Section 13.04 NOTICES.
(a) Any notice pursuant to this Agreement shall be in writing
signed by or on behalf of the party giving it and may be served by sending it by
personal delivery or overnight courier to the address of the addressee set forth
below (or to such other address as the addressee shall have specified to such
party by not less than fifteen (15) days prior notice given in accordance with
this Section 13.04). Notice given is deemed for purposes of this Agreement:
(i) in the case of personal delivery or delivery by overnight
courier, on the day of delivery at the address of the addressee or, if
such day is not a Business Day, on the first Business Day thereafter.
29
(ii) The details for notices are:
if to the Servicer: Systems & Services Technologies, Inc.
0000 Xxxxxxx Xxxx
Xx. Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telecopy No: (000) 000-0000
with a copy to:
Systems & Services Technologies, Inc.
0000 Xxxxxxx Xxxx
Xx. Xxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Telecopy No: (000) 000-0000
if to the Company: GS WHOLE LOAN TRUST III
c/o Goldman Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. XxXxxxxx
Tel.: (000) 000-0000
Fax.: (000) 000-0000
with a copy to:
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Tel.: (000) 000-0000
Fax.: (000) 000-0000
if to the Originator:
Ohio Savings Bank
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Attn: Director, Capital Markets
Tel: (000) 000-0000
Fax: (000) 000-0000
or to such other person(s) or address as such party shall have specified in
writing in the manner set forth above.
Section 13.05 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be held
unenforceable or invalid in any
30
jurisdiction, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement in such jurisdiction to the extent of such unenforceability or
invalidity, and such unenforceability or invalidity shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of such
provisions in any other jurisdiction.
Section 13.06 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the parties relating to the transactions contemplated
herein and supersede and extinguish any prior drafts, agreements, undertakings,
representations, warranties and arrangements of any nature whatsoever, whether
or not in writing, relating thereto.
Section 13.07 RELATIONSHIP OF PARTIES. Nothing contained herein
shall be deemed or construed to create a partnership or joint venture between
the Company and the Servicer.
Section 13.08 COUNTERPARTS. This Agreement may be executed in one or
more counterparts and by each party on separate counterparts, each of which,
when so executed, shall be deemed to be an original; such counterparts,
together, shall constitute one and the same agreement. Transmission by facsimile
of an executed counterpart hereof shall be deemed to constitute due and
sufficient delivery of such counterpart.
Section 13.09 ASSIGNMENT.
(a) Notwithstanding anything to the contrary contained herein,
except as provided in Section 8.03, the Servicer may not transfer or assign all
or a portion of its rights, obligations and duties under this Agreement unless
the Company has consented to such transfer or assignment.
(b) Other than to the extent set forth below, the Servicer hereby
acknowledges and consents to (and the Company hereby agrees to give notice to
the Servicer of) any sale, transfer, mortgage, pledge, assignment or grant of a
security interest by the Company of all or a portion of its right, title and
interest in, to and under the Receivables or any or all of the Company's rights
and obligations hereunder to any other Person pursuant to an Assignment,
Assumption and Recognition Agreement or otherwise. At the request of the
Company, the Servicer shall acknowledge in writing any such sale, transfer,
mortgage, pledge or grant. The Company shall have the right to assign, in whole
or in part, its interest under this Agreement with respect to some or all of the
Receivables, and designate any Person to exercise any rights of the Company
hereunder and each assignee or designee shall accede to the rights and
obligations hereunder of the Company with respect to such Receivables.
Notwithstanding the foregoing, the Company may not assign its interest hereunder
to any Restricted Assignee without the prior consent of the Servicer (which may
not be unreasonably withheld).
"RESTRICTED ASSIGNEE" means any potential assignee or designee that
is not a Securitization Assignee.
"SECURITIZATION ASSIGNEE" means any party to any asset
securitization involving all or a portion of the Receivables, including any sale
to or otherwise involving any conduit.
31
If the Servicer withholds its consent to an assignment by the
Company of its interest hereunder to a Restricted Assignee, then the Company, at
its sole option, may terminate this Agreement in accordance with Section 10.01.
In connection with any such termination, the parties hereto will comply with the
provisions of Article XI regarding the appointment of a successor to the
Servicer and cooperation to effect a smooth and efficient transition; provided,
however, that the Servicer and the Company shall share equally in the payment of
all out-of-pocket expenses incurred in connection with the transfer of servicing
to such successor servicer..
Section 13.10 THIRD-PARTY BENEFICIARIES. Each of the Servicer
Indemnified Parties is an intended beneficiary of this Agreement and each of
them shall have the right to enforce all provisions of this Agreement as if they
were a party hereto. Except as otherwise specifically provided herein, the
parties hereto hereby manifest their intent that no other third party shall be
deemed a third party beneficiary of this Agreement, and specifically that the
Obligors are not third party beneficiaries of this Agreement.
Section 13.11 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Company or the Servicer, any
right, remedy, power or privilege hereunder, will operate as a waiver thereof;
nor will any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges therein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 13.12 FURTHER ASSURANCES. The Company and the Servicer agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested to more fully to effect
the purposes of this Agreement.
Section 13.13 EFFECT OF HEADINGS; CROSS-REFERENCES. The article,
section and subsection headings herein and the table of contents of this
Agreement are for convenience only and shall not affect the construction of this
Agreement. References in this Agreement to article, section and subsection
numbers are to such article, section and subsection numbers of this Agreement.
Section 13.14 NO PETITION COVENANT. Each of the Company and the
Servicer, by entering into this Agreement, covenants that it shall not, prior to
the date that is one year and one day after the payment in full of all
securities issued in connection with any Securitization, acquiesce, petition or
otherwise invoke or cause the issuer of such securities or trustee or other
similar entity for such securities to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
such issuer or trustee or other entity under any bankruptcy, insolvency or
similar law, or for the purpose of appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of such issuer or
trustee or other entity or any substantial part of its properties, or ordering
the winding up or liquidation of the affairs of such issuer, trustee or other
entity. This Section 13.14 shall survive the termination of this Agreement.
Section 13.15 EXPENSES. Except as otherwise expressly provided
herein, each party to this Agreement shall be responsible for paying their
respective costs and expenses,
32
including out of pocket expenses, in connection with the negotiation,
preparation and execution and delivery of this Agreement. Notwithstanding the
foregoing, the Company shall pay the Servicer's reasonable legal fees and
expenses in connection with the negotiation, preparation and execution and
delivery of this Agreement.
Section 13.16 AGENTS TO ACT ON BEHALF OF THE COMPANY. The Company
and its successors and transferees may appoint agents to act on their respective
behalf and such agents have the power and right to administer and enforce this
Agreement on behalf of the Company. To the extent the Company has any rights
under this Agreement, any such agent may exercise such rights on behalf of the
Company.
Section 13.17 GUARANTEE BY GSMC. GSMC unconditionally and
irrevocably guarantees for the benefit of the Servicer the full and prompt
payment and punctual performance of and compliance with SECTION 4.04 and SECTION
8.04 by GS Whole Loan Trust III (the "COMPANY OBLIGATIONS"). This guarantee
shall be a continuing, absolute, irrevocable and unconditional guaranty and
shall remain in full force and effect as to GSMC until such time as the Company
Obligations are indefeasibly paid and performed in full.
[Signature Page Follows]
33
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
SERVICER:
SYSTEMS & SERVICES TECHNOLOGIES, INC.
By: /s/ Xxxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxxx X. Xxxxx
Its: Vice President
COMPANY:
GS WHOLE LOAN TRUST III
By: XXXXXXX XXXXX MORTGAGE
COMPANY, as the Administrator of the
Company
By: XXXXXXX SACHS REAL ESTATE
FUNDING CORP., as the General Partner of
Xxxxxxx Xxxxx Mortgage Company
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Its: Vice President
34
GUARANTOR:
Xxxxxxx Sachs Mortgage Company hereby joins in
this Agreement solely for the purposes of
SECTION 13.17 hereof.
By: XXXXXXX XXXXX REAL ESTATE
FUNDING CORP., as the General Partner of
Xxxxxxx Sachs Mortgage Company
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Its: Vice President
35
EXHIBIT A
SERVICING STANDARDS
SST SHALL SERVICE THE RECEIVABLES IN ACCORDANCE WITH THE FOLLOWING STANDARDS
WHICH SHALL BE MEASURED ON A MONTHLY BASIS. ALL PROCESSES WILL BE CONSIDERED IN
COMPLIANCE IF SST ACHIEVES ADHERENCE LEVELS AT OR ABOVE 85%; PROVIDED, HOWEVER,
THAT ITEM 20 SHALL NOT BE SUBJECT TO SUCH ADHERENCE LEVEL BUT SHALL BE ADJUSTED
FROM TIME TO TIME AS SET FORTH THEREIN. FOR THE AVOIDANCE OF DOUBT, IN THE EVENT
THE ADHERENCE LEVEL WITH RESPECT TO ITEM 20 FALLS BELOW 85%, NO "SERVICER
TERMINATION EVENT" SHALL OCCUR. THE PROCESSES AND STANDARDS DESCRIBED HEREIN MAY
BE MODIFIED FROM TIME TO TIME IN WRITING BY MUTUAL AGREEMENT OF SST AND COMPANY.
ELECTRONIC PAYMENT SIGNUP
1. SST may periodically solicit consumers to participate in electronic
payment programs (i.e. "Autopay").
PAYMENT INVOICES
2. For each customer not using AutoPay or similar electronic payment program,
SST will send out payment invoices in electronic or written form not less
than 15 days prior to such customer's payment due date.
CUSTOMER SERVICE
3. Maximum 30 second answer time for 90% of consumer calls.
4. Maximum 5% call abandon rate over any 2 hour period.
PAYMENT POSTING
5. Lockbox payments shall be posted as of the date of receipt.
6. All unidentified payments will be posted within 1 business day of proper
identification.
7. Account reconciliations and unidentified cash receipts receive weekly
activity until cleared.
TITLES
8. Title filed in consumer folder 1 business day following receipt from FDI
(the Company's title vendor).
9. SST will be responsible for the proper storage and tracking of all title
documents.
10. Provide the Company a monthly report of titles not received from FDI.
A-1
LOAN PAYOFF
11. Title and lien release provided in accordance with SST's policies and
applicable law.
12. 100% accuracy in releasing consumer titles and lien releases.
DOCUMENT RETENTION
13. SST to conform to all Federal and State requirements.
COLLECTIONS
14. Begin collecting:
- Within 1 business day following receipt of returned instrument or
advice on Non Sufficient Funds (NSF).
- Within 2 business day after date of broken promise to pay.
- FICO scores will be updated quarterly.
- Collections based on updated FICO below 640, begin calling customer
at the business day following the 5th day after payment due date.
- Collections based on updated FICO with 640 to 680, begin calling
customer at the business day following day 5-10 days after payment
due date.
- Collections based on updated FICO over 680, begin calling customer
at the business day following day 10-15 after payment due date.
- SST may use collection letters and any other collection tool at its
disposal at its discretion.
- Assumptions
- A payment will be treated as delinquent if it is more than
$25.00 less than the scheduled payment amount.
- Collection attempts via dialer will be no less often than once
every three business days (except in the circumstance of a
promise to pay from the consumer, total loss, consumer
bankruptcy or skip), unless account is more than 30 days
delinquent.
- At 30 days delinquent the account is assigned to a Collector
for manual collection efforts no less frequently than every 3
business days.
15. Extensions permitted as set forth in the Servicing Agreement.
A-2
16. Credit Bureau Reporting
- Monthly to Trans Union, Equifax and Experian
- SST will establish an appropriate subscriber code to be utilized in
reporting to the credit bureaus as "SST/GSWHLN."
17. Field Calls
- Utilized at the discretion of the Collector if contact with the
borrower has not been made.
- Field Call fee is assessed to the consumer account as allowed by
applicable law.
18. Skip tracing will commence within 3 business days of SST's determination
that it has no valid consumer contact information. Skip tracing efforts
may include, but are not limited to, one or more of the following as
appropriate: credit reports, internet services, place of employment and
co-signer information, field calls, etc.
19. Collection calls will include verification of the whereabouts of the
asset, verification of all phone numbers, and reason for default as deemed
appropriate at the discretion of SST but no less than every 30 days.
REPOSSESSIONS
20. The following expense guidelines are subject to adjustment from time to
time by SST with the approval of the Company, such approval not to be
unreasonably withheld, as market changes direct:
I. Field calls - $45-50
II. Replevin actions - $1000-$1200
III. Attorney Fees Bankruptcy Ch 7 - $400
IV. Attorney Fees Bankruptcy Ch 13 - $700
V. Repossession - includes storage and keys $285 voluntary $410
involuntary
VI. Auction Sale Fee - $100
VII. Recondition Fee- $83
VIII. External Skip Fee - $300-$350
IX. Title work - $65
21. Begin repossession evaluation process at 45-65 days delinquent.
22. SST allowed discretion to accelerate repossession based on collateral
jeopardy (abandoned vehicle, impounds, etc).
23. Accounts sent to the Repo Dept. the business day following approval to
repossess by Collections supervisors; assignments are to be sent to the
agents within one business day of referral from Collections supervisors,
pending no research needs to be done prior to assignment.
A-3
24. Agents pick up vehicles within 30 days of assignment. If not picked up
within 30 days, account is reviewed for possible skip or legal work.
Accounts can stay with agent for a longer period of time if they feel
continued efforts will result in the recovery of the vehicle.
25. During the 30 day period, agents must provide updates at least every 7
business days.
26. SST requires agents to provide timely notification of repossessions.
27. SST must send the Notice of Intent to Sell Repossessed Motor Vehicle as
required by applicable law.
REMARKETING
28. Once repossessed or voluntarily surrendered, SST will arrange transport to
the auction as soon as practicable and as required by applicable law.
29. Based upon the repo notification date, the Titles Department initiates
appropriate actions to deliver title to the auction.
30. Once at the auction, a condition report should be received within 2
business days of receipt of the vehicle.
31. Once the condition report has been received, it is reviewed by the Claims
Department for physical damage to the vehicle and potential claim filing.
32. The account is reviewed by the Remarketing Department sets the vehicle
available for sale. Upon expiration of the NOI period and delivery of the
title to auction, the Remarketing Dept. sets the minimum floor price.
33. The minimum floor price is established based upon review of values as
reported by MMR, Black Book and NADA. The minimum floor price can not be
less than 80% of Mannheim Market Report (MMR) value, as adjusted for
mileage and damage, without the Company's approval.
34. Within 2 business days after the sale, the Remarketing Department contacts
the auction for sales results and updates the account with either the
sales results, or if not sold, the next scheduled sale date.
35. SST will follow up with the auction for funds no later than the 5th
business day following entry of the date sold. Follow up continues until
receipt of funds.
36. Servicer will apply for and use reasonable efforts to realize upon
insurance proceeds, including GAP insurance and rebates on insurance and
warranty policies in order to mitigate the loss incurred.
A-4
BANKRUPTCY
The Servicer's Bankruptcy Portfolio Management Plan is structured to maximize
financial recovery utilizing outside counsel working in conjunction with
in-house Bankruptcy Specialists.
CHAPTER 7
37. A Bankruptcy workbook is used to establish workflow and monitor all BK
accounts. Servicer refers new bankruptcies to outside counsel to file
Proof of Claim (unless unsecured) and Motions for Relief, as appropriate,
and otherwise administer the case.
38. BK counsel solicits verification of collateral location and full coverage
insurance.
39. BK Specialists monitor, in conjunction with BK counsel, debtor's counsel
for debtor's intention: to cure arrears, maintain payments to keep vehicle
and sign reaffirmation agreement when appropriate; arrangement for
surrender of vehicle; or review motion to redeem vehicle when appropriate.
40. MFR is filed by outside counsel on all BK accounts that are more than 60
days delinquent (MFR may be filed earlier in cases of voluntary surrender,
collateral jeopardy, etc.)
41. BK Specialists monitor, in conjunction with BK counsel, for Discharge
Order to take action either to Repo vehicle or place into special
Collector workbook to handle if current.
CHAPTERS 11 & 13
42. Workflow and accounts are monitored through BK workbooks by BK Specialists
assigned to each account. SST refers new bankruptcies to outside counsel
to file Proof of Claims (unless unsecured), Motions for Relief and
Objections to Plans, as appropriate, and otherwise administer the case.
43. Create electronic BK file on all accounts.
44. MFR is filed on accounts more than 60 days delinquent with Trustee
payments or payments made directly to the Servicer outside of the Plan.
45. BK Specialist monitors, in conjunction with BK counsel, for Trustee
payments after plan is confirmed.
46. BK Specialist monitors, in conjunction with BK counsel, for Dismissal or
Discharge of cases through the life of the plan.
ATTORNEY REFERRAL CASES (ALL CHAPTERS)
47. BK Specialists are notified of new files referred to them within 3 days.
48. BK Specialists monitor the following procedures:
A-5
- Set xxxx dates in workbooks on each account.
- Verify attorney filed POC within 45 days of filing notification, but
in no event later than Claims Bar Date.
- Verify objection, motions filed, hearings, and other court dates
within 11 business days of referral.
- Follow up with attorney/court within 2 business days for results and
next steps after hearings or other court dates.
- Follow up with attorney/court for disposition of court
dates/hearings within 10 business days.
RESPONSIVENESS
49. SST to provide the Company with contact information and hours of
availability
DISCLOSURES
50. SST to provide consumers with all required disclosures and security as
required by Federal and State law.
A-6
EXHIBIT B
RECEIVABLE SCHEDULE
[DELIVERED ELECTRONICALLY TO SERVICER]
B-1
EXHIBIT C
ACCOUNT INSTRUCTIONS
Bank: Citibank, NYC
ABA #: 000000000
Account #: 00000000
BNF: Xxxxxxx Sachs Mortgage Company
Attn.: Xxxx Xxxxxxxx
Ref: Ohio Savings Bank--06.28.06 Settlement
C-1
EXHIBIT D
LIST OF MONTHLY SERVICER REPORTS
1. MONTHLY FLAT FILE: Electronic file of data elements as specified in
the Company's Data Dictionary.
2. MONTHLY OUTSTANDING ROLL-FORWARD REPORT/SERVICER'S CERTIFICATE: A
summary of the changes in the portfolio balance for the previous month.
This report provides a summary of the categories (and dollar values of
each) which impacted the portfolio's principal for the previous month.
This includes principal payments, payoff payments, charged-off amounts,
repossession proceeds, other charges and any non-cash items.
3. MONTHLY ACCOUNT ACTIVITY REPORT: A loan level detail of the activity
and monetary transactions that impacted each account in the portfolio.
This report provides detail by account with regards to the amount of
principal and interest collected, account status code (bankrupt or
repossession), unpaid principal balance, and totals for interest and
principal due to investor. Status accounts are also summarized by numbers
and totals.
4. MONTHLY LOSS TREND ANALYSIS: Provides delinquency and loss total
information for a given period of time summarized on monthly intervals.
5. MONTHLY SERVICING STANDARDS COMPLIANCE REPORT: Comparison of actual
monthly performance levels achieved to those specified in the Performance
Standards.
6. REPOSSESSION/LOSS REPORT: Provides account level detail on each
repossession, charge-offs, or settlement that was processed the previous
month. Includes total repossession expenses, sale proceeds, deficiency
balance amount(s) along with comparisons to industry average value guides
and miscellaneous information regarding days in inventory and type of
loss.
7. REPOSSESSION TRACKING REPORTS: Monthly reports providing account
level detail of pertinent data throughout the repossession process,
including reports for: accounts assigned for repossession, accounts in
repossession inventory and repossessions sold.
8. BANKRUPTCY REPORT: Provides account level detail to include original
balance, current balance, loan date, date of last payment, type of
bankruptcy and scheduled payment amount.
9. MONTHLY CONTRACTUAL DELINQUENCY REPORT: Provides information sorted
by account number which displays account level detail by delinquency grade
(current, 30, 60, 90 & 120+) with totals by category.
10. PAID OUT ACCOUNT ACTIVITY REPORT: Loan level detail of accounts paid
in full in a reporting period.
D-3
11. DAILY SWEEP REPORT: Provides information sorted by account number
relative to the previous day's payment activity. This includes the total
amount of payment posted to (or retracted from) each account, including a
summary of those amounts applied to principal, interest and other.
12. PAYMENT TRANSMITTAL REPORT: Provides a weekly and month-end summary
of the cash transactions applied to all accounts for the specified period
of time.
Ad-Hoc Daily Reports (upon request):
INDIVIDUAL ACCOUNT RECORDS: Screen prints can be made available for any given
customer upon request (quantities limited). This will provide individual account
detail relative to transaction history and current demographic information.
CALL VOLUME REPORTS: Daily CMS dialer call volume reports will be made available
on an as requested basis in a to be determined format. Skip tracing log reports
will also be made available upon request in a format to be defined at a later
date.
Note: Optional Ad-Hoc daily reports based upon the previous month end data.
Details of this reporting option to be obtained by providing specific reporting
requests in writing. It is also noted that in the event of securitization, the
trustee will define the final securitization format.
D-4
EXHIBIT E
FORM OF SERVICER ANNUAL STATEMENT AS TO COMPLIANCE
I [ ] certify that I am a duly elected [ ] of The SYSTEMS & SERVICES
TECHNOLOGIES, INC., a corporation organized under the laws of the State of
Delaware (the "Servicer"), authorized to execute and deliver this certificate in
the name and on behalf of the Servicer, as required by Section 6.02 of the
Servicing Agreement, dated as of June 28, 2005 (as amended, modified or
supplemented from time to time, the "Servicing Agreement"), among the Servicer,
and GS Whole Loan Trust III, as the Company, and further certify in the name of
and behalf of the Servicer, that:
1. A review of the activities of the Servicer and of the
performance of its obligations under the Servicing Agreement during the period
from [ ], 200[ ] to and including December 31, 200[ ] (the "Review Period") [or,
with respect to the first Officer's Certificate, the period from the Servicing
Transfer Date to December 31 of such year] was conducted under the supervision
of the undersigned.
2. I am responsible for reviewing the activities performed by the
Servicer under the Servicing Agreement and based upon my knowledge and review,
and except as disclosed to the Company in this Certificate or otherwise in
writing, the Servicer has fulfilled its obligations under the Servicing
Agreement during the Review Period.
3. Based on such review, to the undersigned's knowledge, the
following is a description of each significant deficiency during the Review
Period in the performance of the Servicer's obligations under the provisions of
the Servicing Agreement, which sets forth in detail (i) the nature and status of
each such deficiency and (ii) the action taken by the Servicer, if any, to
remedy each such deficiency: [List Out]
4. I have reviewed all distribution or servicing reports (the
"Reports") delivered by the Servicer in respect of periods included in the
Review Period.
5. Based on my knowledge, the information in these Reports, 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 light of the
circumstances under which such statements were made, not misleading as of the
last day of the applicable Review Period.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated:_______________________ By:_______________________
Name:
Title:
E-1
EXHIBIT F
INDEMNIFICATION BY OHIO SAVINGS BANK
(a) The Seller shall indemnify the Seller Indemnified Parties and
hold each Seller Indemnified Party harmless against (i) any and all Losses that
any Seller Indemnified Party may sustain in any way related to (A) the failure
of the Seller to perform its obligations under the terms of this Agreement, (B)
any alleged untrue statement of a material fact contained in any information
provided by the Seller (including, without limitation, any information provided
in connection with a Securitization) or the alleged omission of a 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, (C) the breach of
any representation or warranty, covenant or other agreement of Seller set forth
in this Agreement, (D) prior to the Servicing Transfer Date (as defined in the
Interim Servicing Agreement), the use, ownership or operation by the Seller or
any Affiliate thereof of a Financed Vehicle, (E) any deviation of any Receivable
contract from the applicable form set forth in Exhibit E-1 or E-2 or (F) any
claim or dispute arising on or prior to the Closing Date, including (without
limitation) any action, suit, proceeding or investigation alleging violations of
Applicable Law in the servicing, collection or origination of any Receivable;
(ii) any Taxes that may at any time be asserted against any Seller Indemnified
Party with respect to, and as of the date of, the conveyance of the Conveyed
Assets to the Purchaser (but not including any federal or state income taxes
arising out of the transactions contemplated by this Agreement); and (iii) any
breach by a Dealer of any of its obligations under a Dealer Agreement with
respect to any Receivable.
(b) The Seller or the Seller Indemnified Party, as applicable,
shall promptly notify the other upon becoming aware that a claim subject to
indemnification under Section 3.03(a) (a "SELLER INDEMNIFIED CLAIM") has been
made by a third party; PROVIDED, HOWEVER, that the failure of the Seller
Indemnified Party to notify the Seller of a Seller Indemnified Claim shall not
relieve the Seller from any liability which it may have to any Seller
Indemnified Party, except to the extent such failure to notify materially
prejudices the Seller. The Seller shall assume the defense of any such Seller
Indemnified Claim and be responsible for all fees and expenses of counsel
incurred therewith as well as any other litigation expenses; PROVIDED, THAT
counsel chosen by the Seller shall be reasonably acceptable to the Purchaser;
and PROVIDED, HOWEVER, that at any time the Seller Indemnified Party shall be
entitled to participate therein and, to the extent that it shall wish, hire
counsel (who shall not, except with the consent of the Seller, be counsel to the
Seller) and, jointly with the Seller, assume the defense thereof. The Seller
shall not be liable to the Seller Indemnified Party for the cost of the Seller
Indemnified Party's counsel. If, in connection with any Seller Indemnified
Claim, the actual or potential defendants in, or targets of, any such action
include both the Seller and the Seller Indemnified Party, and counsel retained
by the Seller cannot adequately represent both the Seller and the Seller
Indemnified Party in light of the claims and defenses that each intends to
raise, or the Seller shall not have acknowledged in writing to the Seller
Indemnified Parties that the claim is a Seller Indemnified Claim and that the
Seller is fully liable and responsible for all Losses in connection with the
Seller Indemnified Claim, the Seller Indemnified Party shall have the right to
hire separate counsel to assume the defense of any such Seller Indemnified Claim
and the Seller shall be responsible for all fees and expenses of such separate
counsel incurred therewith as well as any other litigation expense. The Seller
shall not, without the written consent of the Seller
F-1
Indemnified Party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification may be sought hereunder (whether or not the
Seller Indemnified Party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the Seller Indemnified Party from all liability arising
out of such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or failure to act, by or on behalf of the
Seller Indemnified Party.
(c) The indemnification obligations of the Seller under this
Section 3.03 shall survive the assignment and transfer of the Receivables in
connection with any conveyance by the Purchaser (including in connection with
any Securitization).
(d) Notwithstanding anything to the contrary contained in this
Agreement, it is understood and agreed that the obligations of the Seller set
forth in this Section 3.02 to cure or repurchase a defective Receivable as
provided in Section 3.02 and to indemnify the Seller Indemnified Parties as
provided in this Section 3.03 constitute the sole remedies of the Seller
Indemnified Parties respecting a breach of the representations and warranties
set forth in Section 3.01.
(e) Notwithstanding anything to the contrary contained in this
Agreement, it is understood and agreed that the obligations of the Seller set
forth in this Section 3.02 to cure or repurchase a defective Receivable as
provided in Section 3.02 and to indemnify the Seller Indemnified Parties as
provided in this Section 3.03 constitute the sole remedies of the Seller
Indemnified Parties respecting a breach of the representations and warranties
set forth in Section 3.01.
(f) For purposes of this Exhibit F, the following terms shall have
the corresponding meaning:
(i) "LOSS" or "LOSSES" shall mean any and all liabilities, losses,
costs, claims, damages, settlement costs, penalties and expenses
(including reasonable attorneys' fees and expenses and costs of
investigation and litigation). In the event any of the foregoing are
indemnifiable hereunder, the terms "Loss" and "Losses" shall include any
and all reasonable attorneys' fees and expenses and costs of investigation
and litigation incurred by the Seller Indemnified Party in enforcing such
indemnity.
(ii) "SELLER INDEMNIFIED PARTIES" means (a) the Purchaser, its
Affiliates, any subsequent purchaser or beneficial owner of the
Receivables, or any servicer of the Receivables, (b) in the event of any
Securitization of some or all of the Receivables, any trustee,
underwriter, placement agent, initial purchaser or other participant in
any of the transactions relating to the Securitization and (c) any of
their respective officers, directors, agents, partners, members,
shareholders, employees and controlling persons, provided, however, with
respect to all of the foregoing, no servicer shall be entitled to
indemnification by Seller with respect to any Loss resulting from, caused
by, arising from or related to any action or failure to act on the part of
such servicer or any Person or entity acting on such servicer's behalf.
F-2
EXHIBIT G
ACKNOWLEDGMENT OF RECEIPT
TO: GS WHOLE LOAN TRUST III
c/o Goldman Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. XxXxxxxx
FROM: SYSTEMS & SERVICES TECHNOLOGIES, INC.
DATE: _ _, 200_
--------------------------------------------------------------------------------
1. This Acknowledgment of Receipt is delivered to you pursuant to
Section 2.02(a) of the Servicing Agreement dated as of June 28, 2005 between
SYSTEMS & SERVICES TECHNOLOGIES, INC., a corporation organized under the laws of
the State of Delaware, its permitted successors and assigns ("SST"), as servicer
(in such capacity, the "SERVICER"), and GS WHOLE LOAN TRUST III, a Delaware
statutory trust (together with its permitted successors and assigns, the
"COMPANY") (as amended, modified or supplemented from time to time, the
"AGREEMENT"). Unless the context otherwise requires, capitalized terms which are
used but not defined herein shall have the respective meanings attributed to
such terms in the Agreement.
2. The undersigned hereby acknowledges that it has reviewed the
documents delivered to it and has determined that with respect to the
Receivables identified in the Receivable Schedule: (A) all documents specified
in the definition of the term Receivable File are in its possession, (B) such
documents have been reviewed by it and have not been mutilated, damaged, torn or
otherwise physically altered and relate to such Receivable and (C) based on its
examination, and only as to the foregoing documents, the information set forth
in the Receivable Schedule as verifiable from the face of the contract with
respect to such Receivable accurately reflects the information set forth in the
file for such Receivable.
SYSTEMS & SERVICES TECHNOLOGIES, INC.
By: /s/
-------------------------
Name:
Title:
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EXHIBIT H
REPRESENTATIONS AND WARRANTIES OF OHIO SAVINGS BANK
(i) TITLE. Immediately prior to the Closing Date: (A) such Receivable
had not been sold, assigned, or pledged by the Seller to any Person; (B) the
Seller had good and marketable title to such Receivable free and clear of any
Lien; and (C) the Seller was the sole owner of such Receivable and had full
right to sell the Receivable to the Purchaser and upon the sale thereof to the
Purchaser, the Purchaser will have good and marketable title thereto and will
own such Receivables free and clear of any Liens. Upon consummation of the
transactions contemplated hereby, the Purchaser has a valid and perfected first
priority security interest in such Receivable and all proceeds thereof, free and
clear of all liens, encumbrances, security interests and rights of others.
(ii) LAWFUL ASSIGNMENT. Such Receivable was not originated in, and is not
subject to the laws of, any jurisdiction the laws of which would make unlawful,
void or voidable any sale, transfer and assignment of such Receivable by the
Seller under or as contemplated by this Agreement, including any repurchase in
accordance with this Agreement. The Seller has not entered into any agreement
with the Obligor on such Receivable that prohibits, restricts or conditions the
assignment of all or part of such Receivable.
(iii) COMPLIANCE WITH LAW. (A) The origination and acquisition of such
Receivable, and the sale of the Financed Vehicle securing such Receivable, where
applicable, complied, at the time it was made, in all respects with Applicable
Law and the servicing of such Receivable complies in all respects with
Applicable Law and (B) the sale of such Receivable by the Seller to the
Purchaser complies in all respects with Applicable Law.
(iv) NO FRAUD. No material error, omission, misrepresentation, negligence
or fraud in respect of such Receivable has taken place on the part of any Person
(including any Dealer) in connection with the origination, acquisition,
servicing or sale of such Receivable.
(v) COMPLIANCE WITH TERMS. The Seller has duly fulfilled all obligations
to be fulfilled on the Seller's part under or in connection with the
origination, acquisition and disposition of such Receivable, including, without
limitation, giving any notices or consents necessary to effect the acquisition
of such Receivable by the Purchaser, and has done nothing to convey any right to
any Person that would result in such Person having a right to payments due under
a Receivable or to impair the rights of the Purchaser in such Receivable or
payments with respect thereto.
(vi) NO DEFENSES. No Receivable is subject to any right of rescission,
set-off, counterclaim or defense, including defenses arising out of violations
of usury laws, the Truth in Lending Act or any other Applicable Law, and no such
right or defense has been asserted or, to the best of Seller's knowledge,
threatened with respect to the unpaid principal or interest due under such
Receivable, nor will the operation of any of the terms of such Receivable, or
the exercise of any right under any of the foregoing, render such Receivable
unenforceable, in whole or in part, or subject such Receivable to any right of
rescission, set-off, counterclaim or defense,
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including the defense of usury or any defense under or arising as a result of a
claim under or involving the Truth in Lending Act or any other Applicable Law
and no such right of rescission, set-off, counterclaim or defense has been
asserted to Seller with respect thereto.
(vii) VALID, BINDING AND ENFORCEABLE OBLIGATION. Such Receivable
represents the genuine, legal, valid, and binding payment obligation of the
related Obligor, enforceable by the holder thereof in accordance with its terms
subject to the effect of bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors' rights generally, including
the Servicemembers' Civil Relief Act or similar laws. Such Receivable contains
customary and enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the realization against the related Financed
Vehicle of the benefits of the security.
(viii) RECEIVABLE IN FORCE. Such Receivable has not been satisfied,
canceled, subordinated or rescinded, in whole or in part, and the related
Financed Vehicle has not been released from the lien of the Receivable, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission, except for such Receivables
that have been repaid in full (or within $25 thereof) after the Cut-Off Date and
prior to the Closing Date.
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