AMENDING DEED TO THE MORTGAGE
ORIGINATION AND MANAGEMENT
AGREEMENT
FOR THE SUPERANNUATION MEMBERS' HOME LOANS
PROGRAMME
PERPETUAL LIMITED
ABN 86 000 000 000
THE BANK OF NEW YORK
ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134
and
MEMBERS EQUITY BANK PTY LIMITED
ABN 56 070 887 679
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TABLE OF CONTENTS
Clause Page
1 DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Interpretation 3
2 AMENDMENTS TO THE AGREEMENT 3
2.1 Amendments 3
2.2 Effectiveness 3
2.3 Amendments not to affect validity, rights, obligations 3
2.4 Agreement and consent by Note Trustee 3
2.5 Notice to Designated Ratings Agencies 4
3 GENERAL 4
3.1 Governing law and jurisdiction 4
3.2 Variation 4
3.3 Further assurances 4
3.4 Counterparts 4
3.5 Attorneys 4
3.6 Trustee limitation of liability 4
3.7 Limitation of liability of Note Trustee 4
(A) SCHEDULE 1 - AMENDMENTS 5
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page 1
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THIS AMENDING DEED
is made on 17 August 2006 between the following parties:
1 PERPETUAL LIMITED
ABN 86 000 000 000
of Xxxxx 00, 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx
(formerly known as Perpetual Trustees Australia Limited)
(TRUSTEE)
2 THE BANK OF NEW YORK (AS TRUSTEE FOR THE CLASS A NOTEHOLDERS UNDER
THE NOTE TRUST DEEDS)
of 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286,
United States of America
(NOTE TRUSTEE)
3 ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134
of Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
(formerly known as Superannuation Members' Home Loans Limited)
(MANAGER)
4 MEMBERS EQUITY BANK PTY LIMITED
ABN 56 070 887 679
of Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxxx
(formerly known as NMFM Lending Pty Limited and Members Equity Pty
Limited)
(MORTGAGE MANAGER)
RECITALS
A. The Trustee is a trustee of trusts known as the Superannuation
Members' Home Loans Trusts (TRUSTS) and the Manager is a manager of
the Trusts.
B. The Trustee, the Manager and the Former Mortgage Manager entered
into the Mortgage Origination and Management Agreement.
C. By the Deed of Novation the Former Mortgage Manager surrendered its
rights and was released and discharged from its obligations under
the Mortgage Origination and Management Agreement and the Mortgage
Manager became entitled to equivalent rights and assumed equivalent
obligations.
D. The Note Trustee is trustee for the Class A Noteholders under the
Note Trust Deed.
E. The Note Trustee has received confirmation from each Designated
Rating Agency that the amendment to the Agreement to be made by this
deed will not lead to a reduction, qualification or withdrawal of
the rating given to the Class A Notes.
F. The Note Trustee is of the reasonable opinion that the amendments to
the Agreement to be made by this deed are neither prejudicial or
likely to be prejudicial to the interests of the Class A Noteholders
as a whole, and in the manner, and to the extent permitted by the
Transaction Documents.
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page 1
G. The parties wish to amend the Agreement in the manner set out in
this deed.
THE DEED WITNESSES
that in consideration of, among other things, the mutual promises
contained in this deed, the parties agree:
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1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this deed:
AGREEMENT means the agreement created by the Mortgage Origination
and Management Agreement and the Deed of Novation.
CLASS A NOTES means, in respect of a Fund, the Class A Notes as
defined in the Note Trust Deed for that Fund.
CLASS A NOTEHOLDERS means, in respect of a Fund, Class A Noteholders
as defined in the Note Trust Deed for that Fund.
CONSENT FUNDS means each of:
(a) SMHL Global Fund No. 6;
(b) SMHL Global Fund No. 7; and
(c) SMHL Global Fund No. 8.
DEED OF NOVATION means the deed dated 28 September 1995 between the
Trustee, the Manager, the Former Mortgage Manager and the Mortgage
Manager.
DESIGNATED RATING AGENCY means, in respect of a Fund, each
Designated Rating Agency as defined in the Note Trust Deed for that
Fund.
FORMER MORTGAGE MANAGER means National Mutual Property Services
(Aust) Pty Limited.
FUND means each Consent Fund and each Specified Fund.
MORTGAGE ORIGINATION AND MANAGEMENT AGREEMENT means the agreement
dated 4 July 1994 between the Trustee, the Manager and the Former
Mortgage Manager (as amended).
NOTE TRUST DEED means each of the following:
(a) the Note Trust Deed in relation to the Securitisation Fund
known as the SMHL Global Fund No. 1 dated 20 June 2000;
(b) the Note Trust Deed in relation to the Securitisation Fund
known as the SMHL Global Fund No. 2 dated 7 June 2001;
(c) the Note Trust Deed in relation to the Securitisation Fund
known as the SMHL Global Fund No. 3 dated 21 October 2002;
(d) the Note Trust Deed in relation to the Securitisation Fund
known as the SMHL Global Fund No. 4 dated 29 April 2003;
(e) the Note Trust Deed in relation to the Securitisation Fund
known as the SMHL Global Fund No. 5 dated 18 Nov 2003;
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page 2
(f) the Note Trust Deed in relation to the Securitisation Fund
known as the SMHL Global Fund No. 6 dated 05 April 2004;
(g) the Note Trust Deed in relation to the Securitisation Fund
known as the SMHL Global Fund No. 7 dated 10 September 2004;
(h) the Note Trust Deed in relation to the Securitisation Fund
known as the SMHL Global Fund No. 8 dated 26 September 2005;
SPECIFIED FUNDS means each of:
(a) SMHL Global Fund No. 1;
(b) SMHL Global Fund No. 2;
(c) SMHL Global Fund No. 3;
(d) SMHL Global Fund No. 4; and
(e) SMHL Global Fund No. 5.
TRANSACTION DOCUMENT means, in respect of a Fund, each Transaction
Document as defined in the Note Trust Deed for that Fund.
1.2 INTERPRETATION
Clause 1.2 of the Agreement is incorporated in this deed as if set
out in full in this deed.
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2 AMENDMENTS TO THE AGREEMENT
2.1 AMENDMENTS
The Agreement is amended as set out in schedule 1 by the parties to
this deed other than the Note Trustee.
2.2 EFFECTIVENESS
The amendments to the Agreement in clause 2.1 take effect on and
from the date of this deed.
2.3 AMENDMENTS NOT TO AFFECT VALIDITY, RIGHTS, OBLIGATIONS
(a) An amendment to the Agreement does not affect the validity or
enforceability of the Agreement.
(b) Nothing in this deed:
(1) prejudices or adversely affects any right, power,
authority, discretion or remedy arising under the
Agreement before the date of this deed; or
(2) discharges, releases or otherwise affects any liability
or obligation arising under the Agreement before the
date of this deed.
2.4 AGREEMENT AND CONSENT BY NOTE TRUSTEE
(a) In respect of the Specified Funds, the Note Trustee agrees to
the amendments set out in schedule 1 (in so far as such
amendments affect or relate to the Specified Funds).
(b) In respect of the Consent Funds, the Note Trustee consents to
the amendments in schedule 1 (in so far as such amendments
affect or relate to the Consent Funds).
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page 3
2.5 NOTICE TO DESIGNATED RATINGS AGENCIES
Each party confirms that:
(a) it has received a copy of a confirmation by each Designated
Rating Agency that the Designated Rating Agency has received
notice of the amendments in schedule 1 in accordance with
clause 35 of the Agreement; and
(b) such confirmation is in terms satisfactory to that party.
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3 GENERAL
3.1 GOVERNING LAW AND JURISDICTION
(a) This deed is governed by the laws of the State of New South
Wales.
(b) Each of the parties irrevocably submits to the non-exclusive
jurisdiction of the courts of the State of New South Wales.
3.2 VARIATION
A variation of any term of this deed must be in writing and signed
by the parties.
3.3 FURTHER ASSURANCES
To the extent permitted by law, each party must do all things and
execute all further documents necessary and within its capacity to
give full effect to this deed.
3.4 COUNTERPARTS
(a) This deed may be executed in any number of counterparts.
(b) All counterparts, taken together, constitute one instrument.
(c) A party may execute this deed by signing any counterpart.
3.5 ATTORNEYS
Each of the attorneys executing this deed states that the attorney
has no notice of the revocation of the power of attorney appointing
that attorney.
3.6 TRUSTEE LIMITATION OF LIABILITY
Clause 17 of the Agreement is incorporated in this deed as if set
out in full in this deed except that references to "this Agreement"
are references to "this deed".
3.7 LIMITATION OF LIABILITY OF NOTE TRUSTEE
Notwithstanding any other provision of this deed, the Note Trustee
will have no liability under or in connection with this deed other
than to the extent to which the liability is able to be satisfied
out of the property from which the Note Trustee is actually
indemnified for the liability. This limitation will not apply to a
liability of the Note Trustee to the extent that it is not satisfied
because, under this deed or by operation of laws, there is a
reduction in the extent of the Note Trustee's indemnification as a
result of the Note Trustee's fraud, negligence or wilful default.
Nothing in this clause limits or adversely affects the powers of the
Note Trustee.
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page 4
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(A) SCHEDULE 1 - AMENDMENTS
The Agreement is amended by:
(a) deleting from the definition of "Approved Solicitor" in clause 1.1 the
words "approved in accordance with the Agreed Procedures" and substituting
"approved by the Trustee and appointed";
(b) replacing the definition of "Approved Valuer" in clause 1.1 with "APPROVED
VALUER means a person appointed by the Trust Manager and Mortgage Manager
to value Properties.";
(c) deleting the definition of "Periodic Reports" in clause 1.1 in its
entirety and substituting the following new definition:
"Periodic Reports means all reports, information and data (if any) which
the Mortgage Manager is required to give to the Trust Manager on a regular
or periodic basis as agreed between the Trust Manager and the Mortgage
Manager from time to time.";
(d) deleting the definition of "Solicitor's Certificate" in clause 1.1 in its
entirety and substituting the following new definition:
"Solicitor's Certificate means, in relation to a Mortgage, a certificate
from an Approved Solicitor addressed to the Trustee and the Trust Manager
as to certain matters relating to the origination of that Mortgage and the
Property, such certificate to be in the form agreed from time to time
between the Trust Manager, the Mortgage Manager and the Trustee.";
(e) deleting the definition of "Valuation" in clause 1.1 in its entirety and
substituting the following new definition:
"Valuation means, in relation to a Mortgage, a valuation of the Property,
prepared by an Approved Valuer and in a form agreed from time to time
between the Trust Manager and the Mortgage Manager and failing that, by
the Mortgage Manager.";
(f) deleting clause 2.3 in its entirety;
(g) deleting from clause 3.2 the words ", provided that the Mortgage Manager
complies with Agreed Procedures in doing so" and substituting the words
"provided that the Mortgage Manager must not use the name and logo of the
Trustee without the prior approval of the Trustee.";
(h) deleting clause 4.2 in its entirety and substituting the following new
clause 4.2:
"4.2 Form of Origination Proposals
A proposal made by the Mortgage Manager under clause 4.1 must be in the
form, contain the information, and be accompanied by the documents (if
any) agreed from time to time between the Trust Manager and the Mortgage
Manager, and any relevant Mortgage Insurance Policy.";
(i) deleting clause 4.3 in its entirety and substituting the following new
clause 4.3:
"4.3 Implementation of Proposals
If the Trustee, acting on a recommendation by the Mortgage Manager in a
proposal under clause 4.1, accepts the proposal, the Mortgage Manager must
take all action which it is required to take in implementing that proposal
(including under any relevant Mortgage
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page 5
Insurance Policy). In doing so, the Mortgage Manager must use the same
degree of skill and care as would be used by a responsible and prudent
mortgagee.";
(j) amending clause 5.1 by:
(1) inserting "and" at the end of paragraph (a);
(2) deleting "; and" from the end of paragraph (b) and substituting a
full-stop; and
(3) deleting paragraph (c) in its entirety.
(k) deleting paragraph (c) in its entirety from clause 5.3 and substituting
the following new paragraph (c):
"(c) NO LIABILITY: the Mortgage Manager shall have no liability for the
acts or omissions of:
(1) any Approved Solicitor provided that:
(i) any such person is appointed in accordance with this
Agreement; and
(ii) the terms of such appointment are such that each such
person is appointed to act for the Trustee and is
directly liable to the Trustee for its acts or omissions
in acting as an Approved Solicitor; or
(2) any Approved Valuer provided that the terms of its appointment
are such that each such person is directly liable to the
Trustee for its acts or omissions in acting as an Approved
Valuer.";
(l) deleting from clause 5.7 the words "These accounting and other records
must be kept in such form and using such data storage, access and
retrieval methods as are set out in the Agreed Procedures" and replacing
them with "These accounting and other records must be kept in a form which
is accessible by or on behalf of the Trustee in the event that the Trustee
needs to access for regulatory, enforcement, accounting or legal action.";
(m) inserting in clause 6.1 after the words "in the form required" the words
"as agreed" and deleting from clause 6.1 the words "by the Agreed
Procedures" and substituting "between the Trust Manager and the Mortgage
Manager";
(n) deleting from clause 10.1 (a) the words ", in accordance with clause 4 and
the Agreed Procedures";
(o) deleting from clause 10.1 (b) the words "which complied with the Agreed
Procedures";
(p) deleting paragraph (c) in clause 10.1 in its entirety.
(q) deleting paragraph (k) in clause 10.1 in its entirety and substituting the
following new paragraph (k):
"(k) the Mortgagor's Application for Loan has been fully investigated by
the Mortgage Manager, and the Mortgage Manager is satisfied that all
statements and information contained in it are correct in all
material respects;"
(r) inserting the words "(except for clause 10.1(m))" after the words
"settlement of a Mortgage" in the first paragraph of clause 10.1; and
(s) deleting clause 12; and
(t) deleting clause 10.1(o) in its entirety and re-lettering clause 10.1(p) as
clause 10.1(o).
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page 6
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EXECUTED AS A DEED:
EXECUTED for
PERPETUAL LIMITED
by its attorney in the
presence of:
/s/ Xxx X'Xxxxxxxx /s/ Xxxxxxxx Xx /s/ Marelize Coetzee
-------------------------------- --------------------------------------------
Witness Attorney
Xxx X'Xxxxxxxx Xxxxxxxx Xx Marelize Coetzee
-------------------------------- --------------------------------------------
Name (please print) Name (please print)
EXECUTED for
THE BANK OF NEW YORK
by its Authorised Signatory in the
presence of:
/s/ Xxxxxx Xxxxxxxxxxx /s/ Xxxxxxxxxxx Xxxxx
-------------------------------- --------------------------------------------
Witness Authorised Signatory
Xxxxxx Xxxxxxxxxxx Xxxxxxxxxxx Xxxxx
-------------------------------- --------------------------------------------
Name (please print) Name (please print)
EXECUTED for
ME PORTFOLIO MANAGEMENT LIMITED
by its authorised representatives:
/s/ Xxxx Xxxxxx /s/ Xxxxxxxx Xxxxxxxx
-------------------------------- --------------------------------------------
Authorised Representative Attorney
Xxxx Xxxxxx Xxxxxxxx Xxxxxxxx
-------------------------------- --------------------------------------------
Name (please print) Name (please print)
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page 7
EXECUTED for
MEMBERS EQUITY BANK PTY LIMITED
by its authorised representative in the
presence of:
/s/ Xxxx Xxxxxx /s/ Xxxxxxxx Xxxxxxxx
-------------------------------- --------------------------------------------
Witness Attorney
Xxxx Xxxxxx Xxxxxxxx Xxxxxxxx
-------------------------------- --------------------------------------------
Name (please print) Name (please print)
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page 8
EXPLANATORY NOTE
The following Amending Deed to the Mortgage Origination and Management Agreement
replaces in its entirety the Side Letter to the Mortgage Origination and
Management Agreement originally filed as Exhibit 10.5 to the Registration
Statement on Form S-3 of ME Portfolio Management Limited on May 17, 2006.
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DEED
AMENDING DEED TO THE
MORTGAGE ORIGINATION AND
MANAGEMENT AGREEMENT
- SMHL PROGRAM
------------------------
Perpetual Limited
ME Portfolio Management Limited
Members Equity Bank Pty Limited
xxxx.xxxxx@xxxxxxxxx.xxx
[FREEHILLS LOGO]
MLC Centre Xxxxxx Place Telephone x00 0 0000 0000
Xxxxxx XXX 0000 Xxxxxxxxx Fax x00 0 0000 0000
XXX Xxx 0000 Xxxxxx XXX 0000 Xxxxxxxxx xxx.xxxxxxxxx.xxx DX 000 Xxxxxx
Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxx Singapore Correspondent Offices in
Hanoi Ho Chi Minh City Jakarta
[FREEHILLS LOGO]
CONTENTS
TABLE OF CONTENTS
--------------------------------------------------------------------------
THE AGREEMENT 1
OPERATIVE PART 2
1 DEFINITIONS AND INTERPRETATIONS 2
1.1 Definitions.......................................................2
1.2 Interpretations...................................................2
2 AMENDMENTS TO THE AGREEMENT 2
2.1 Amendments........................................................2
2.2 Effectiveness.....................................................2
2.3 Amendments not to affect validity, rights, obligations............3
2.4 Acknowledgements..................................................3
3 GENERAL 3
3.1 Governing law and jurisdiction....................................3
3.2 Variation.........................................................3
3.3 Further assurances................................................3
3.4 Counterparts......................................................3
3.5 Attorneys.........................................................3
3.6 Trustee limitation of liability...................................3
SCHEDULES
AMENDMENTS 5
REGULATION AB PROVISIONS 6
FORM OF ANNUAL CERTIFICATION 7
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE 8
SIGNING PAGE 9
Amending Deed to the Mortgage Origination and Management Agreement Contents 1
[FREEHILLS LOGO]
THE AGREEMENT
AMENDING DEED TO THE MORTGAGE ORIGINATION AND MANAGEMENT
AGREEMENT - SMHL PROGRAM - SMHL PROGRAM
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Date - 22 August 2006
Between the parties
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Trustee PERPETUAL LIMITED
ABN 86 000 000 000 of Xxxxx 00 000 Xxxx Xxxxxx
Xxxxxx XXX 0000
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Manager ME PORTFOLIO MANAGEMENT LIMITED
ABN 79 005 964 134 of Xxxxx 00 000 Xxxxxxx
Xxxxxx Xxxxxxxxx XXX 0000
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Mortgage Manager MEMBERS EQUITY BANK PTY LIMITED
ABN 56 070 887 679 of Xxxxx 00 000 Xxxxxxx
Xxxxxx Xxxxxxxxx XXX 0000
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Background 1 The Trustee is a trustee of trusts known
as the Superannuation Members' Home Loans
Trusts (TRUSTS) and the Manager is a
manager of the Trusts.
2 The Trustee, the Manager and the Former
Mortgage Manager entered into the Mortgage
Origination and Management Agreement.
3 By the Deed of Novation the Former
Mortgage Manager surrendered its rights
and was released and discharged from its
obligations under the Mortgage Origination
and Management Agreement and the Mortgage
Manager became entitled to equivalent
rights and assumed equivalent obligations.
4 The parties wish to amend the Agreement in
the manner set out in this deed.
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This deed witnesses that in consideration of, among other things,
the mutual promises contained in this deed,
the parties agree as set out in the Operative
part of this deed.
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Amending Deed to the Mortgage Origination and Management Agreement page 1
[FREEHILLS LOGO]
OPERATIVE PART
1 DEFINITIONS AND INTERPRETATIONS
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1.1 DEFINITIONS
The meanings of the terms used in this document are set out below.
TERM MEANING
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AGREEMENT The agreement created by the Mortgage Origination
and Management Agreement and the Deed of Novation
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DEED OF NOVATION The deed dated 28 September 1995 between the
Trustee, the Manger, the Former Mortgage Manager
and the Mortgage Manager
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FORMER MORTGAGE MANAGER National Mutual Property Services (Aust) Pty
Limited
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FUND The same meaning given to it in the Agreement
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MORTGAGE ORIGINATION AND The agreement dated 4 July 1994 between the
MANAGEMENT AGREEMENT Trustee, the Manager and the Former Mortgage
Manager (as amended)
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1.2 INTERPRETATIONS
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Clause 1.2 of the Agreement is incorporated in this deed as if set out in
full in this deed.
2 AMENDMENTS TO THE AGREEMENT
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2.1 AMENDMENTS
The Agreement is amended as set out in schedule 1 in respect of each Fund
created on or after the date of this deed.
2.2 EFFECTIVENESS
The amendments to the Agreement in clause 2.1 take effect on and from the
date of this deed in respect of each Fund created on or after the date of
this deed.
Amending Deed to the Mortgage Origination and Management Agreement page 2
2.3 AMENDMENTS NOT TO AFFECT VALIDITY, RIGHTS, OBLIGATIONS
(a) An amendment to the Agreement does not affect the validity or
enforceability of the Agreement.
[FREEHILLS LOGO] 3 General
(b) Nothing in this deed:
(1) prejudices or adversely affects any right, power, authority,
discretion or remedy arising under the Agreement before the date of
this deed; or
(2) discharges, releases or otherwise affects any liability or
obligation arising under the Agreement before the date of this deed.
2.4 ACKNOWLEDGEMENTS
The Manager acknowledges that no consent of any Designated Rating Agency
is required to the amendments effected by this deed by reason of clauses
2.1 and 2.2.
3 GENERAL
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3.1 GOVERNING LAW AND JURISDICTION
(a) This deed is governed by the laws of the State of New South Wales.
(b) Each of the parties irrevocably submits to the non-exclusive jurisdiction
of the courts of the State of New South Wales.
3.2 VARIATION
A variation of any term of this deed must be in writing and signed by the
parties.
3.3 FURTHER ASSURANCES
Each party must do all things and execute all further documents necessary
to give full effect to this deed.
3.4 COUNTERPARTS
(a) This deed may be executed in any number of counterparts.
(b) All counterparts, taken together, constitute one instrument.
(c) A party may execute this deed by signing any counterpart.
3.5 ATTORNEYS
Each of the attorneys executing this deed states that the attorney has no
notice of the revocation of the power of attorney appointing that
attorney.
3.6 TRUSTEE LIMITATION OF LIABILITY
Clause 17 of the Agreement is incorporated in this deed as if set out in
full in this deed except that references to "this Agreement" are
references to "this deed".
Amending Deed to the Mortgage Origination and Management Agreement page 3
[FREEHILLS LOGO]
SCHEDULES
TABLE OF CONTENTS
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AMENDMENTS 5
REGULATION AB PROVISIONS 6
FORM OF ANNUAL CERTIFICATION 7
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE 8
Amending Deed to the Mortgage Origination and Management Agreement page 4
[FREEHILLS LOGO]
SCHEDULE 1
AMENDMENTS
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The Agreement is amended by:
(a) amending clause 1.1 to insert alphabetically a new definition as follows:
"REGULATION AB has the meaning given to it in Schedule 4";
(b) inserting a new clause 20 as follows:
"20. COMPLIANCE WITH REGULATION AB
20.1 APPLICATION
This clause 20 applies to any Fund nominated in writing by the
Trust Manager to the Trustee and the Mortgage Manager for the
purposes of this clause 20 (NOMINATED FUND).
20.2 REQUIREMENTS - REGULATION AB
The parties agree that for the purposes of this Agreement, the
provisions set out in Schedule 4 of this Agreement apply in
respect of each Nominated Fund.";
(c) inserting a new Schedule 4 as set out in Schedule 2 of this deed;
(d) inserting a new Schedule 5 as set out in Schedule 3 of this deed; and
(e) inserting a new Schedule 6 as set out in Schedule 4 of this deed.
Amending Deed to the Mortgage Origination and Management Agreement page 5
[FREEHILLS LOGO]
SCHEDULE 2
REGULATION AB PROVISIONS
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Amending Deed to the Mortgage Origination and Management Agreement page 6
SCHEDULE 4 - REGULATION AB PROVISIONS
ARTICLE I
DEFINITIONS AND INTERPRETATION
------------------------------
Clause 1.01 DEFINITIONS
COMMISSION means the United States Securities and Exchange Commission.
COMPANY INFORMATION has the meaning set forth in clause 2.07(a).
EXCHANGE ACT means the U.S. Securities Exchange Act of 1934, as amended.
REGULATION AB means Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. xx.xx. 229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have been provided
by the Commission in the adopting release (Asset-Backed Securities, Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
SECURITIES ACT means the Securities Act of 1933, as amended.
SECURITIZATION TRANSACTION. Any transaction involving either (1) a sale or
other transfer of some or all of the Loans directly or indirectly to an issuing
entity in connection with an issuance of mortgage-backed securities registered
with the Commission or (2) an issuance of mortgage-backed securities registered
with the Commission, the payments on which are determined primarily by reference
to one or more portfolios of residential mortgage loans consisting, in whole or
in part, of some or all of the Loans.
SERVICER has the meaning set forth in clause 2.03(c).
SERVICING CRITERIA means the "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
STATIC POOL INFORMATION means static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
SUBCONTRACTOR: Any vendor, subcontractor or other entity that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Loans but performs one
or more discrete functions identified in Item 1122(d) of Regulation AB with
respect to Loans or the Securitization Transaction under the direction or
authority of the Trust Manager, the Mortgage Manager or a Subservicer.
SUBSERVICER: Any entity that services Loans on behalf of the Mortgage
Manager or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions required to be performed by the Mortgage
Manager under this Agreement that are identified in Item 1122(d) of Regulation
AB.
All references to clauses in this Schedule 4, are references to clauses
contained in this Schedule 4, unless stated otherwise.
ARTICLE II
COMPLIANCE WITH REGULATION AB
-----------------------------
Clause 2.01 Intent of the Parties; Reasonableness.
-------------------------------------
The Mortgage Manager and the Trust Manager acknowledge and agree that the
purpose of Article II of this Schedule 4 is to facilitate compliance by the
Mortgage Manager with the provisions of Regulation AB and related rules and
regulations of the Commission.
The Trust Manager shall not exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder. The
Mortgage Manager acknowledges that interpretations of the requirements of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agrees to
comply with requests made by the Trust Manager in good faith for delivery of
information under these provisions on the basis of evolving interpretations of
Regulation AB. In connection with any Securitization Transaction, the Mortgage
Manager shall cooperate fully with the Trust Manager to deliver to the Trust
Manager (including any of its assignees or designees), any and all statements,
reports, certifications, records and any other information necessary in the good
faith determination of the Trust Manager to permit the Trust Manager to comply
with the provisions of Regulation AB, together with such disclosures relating to
the Mortgage Manager, any Subservicer and the Loans, or the servicing of the
Loans, reasonably believed by the Trust Manager to be necessary in order to
effect such compliance.
The Trust Manager (including any of its assignees or designees) shall
cooperate with the Mortgage Manager by providing timely notice of requests for
information under these provisions and by reasonably limiting such requests to
information required, in the Trust Manager's reasonable judgment, to comply with
Regulation AB.
Clause 2.02 Additional Representations and Warranties of the Mortgage
---------------------------------------------------------
Manager.
-------
(a) The Mortgage Manager shall be deemed to represent to the Trust
Manager as of the date on which information is first provided to the Trust
Manager under clause 2.03 that, except as disclosed in writing to the Trust
Manager prior to such date: (i) the Mortgage Manager is not aware and has not
received notice that any default, early amortization or other performance
triggering event has occurred as to any other securitization due to any act or
failure to act of the Mortgager; (ii) the Mortgage Manager has not been
terminated as servicer in a residential mortgage loan securitization, either due
to a servicing default or to application of a servicing performance test or
trigger; (iii) no material noncompliance with the applicable servicing criteria
with respect to other securitizations of residential mortgage loans involving
the Mortgage Manager as servicer has been disclosed or reported by the Mortgage
Manager; (iv) no material changes to the Mortgage Manager's policies or
procedures with respect to the servicing function it will perform under this
Agreement for mortgage loans of a type similar to the Loans have occurred during
the three-year period immediately preceding the related Securitization
Transaction; (v) there are no aspects of the Mortgage Manager's financial
condition that could have a material
2
adverse effect on the performance by the Mortgage Manager of its servicing
obligations under this Agreement; (vi) there are no material legal or
governmental proceedings pending (or known to be contemplated) against the
Mortgage Manager or any Subservicer; and (vii) there are no affiliations,
relationships or transactions relating to the Mortgage Manager or any
Subservicer with respect to any Securitization Transaction and any party thereto
identified by the Trust Manager of a type described in Item 1119 of Regulation
AB.
(b) If so requested by the Trust Manager on any date following the
date on which information is first provided to the Trust Manager under clause
2.03, the Mortgage Manager shall, within five Business Days following such
request, confirm in writing the accuracy of the representations and warranties
set forth in paragraph (a) of this clause or, if any such representation and
warranty is not accurate as of the date of such request, provide reasonably
adequate disclosure of the pertinent facts, in writing, to the requesting party.
Clause 2.03 Information to Be Provided by the Mortgage Manager.
--------------------------------------------------
In connection with any Securitization Transaction the Mortgage Manager
shall (i) within five Business Days following request by the Trust Manager,
provide to the Trust Manager (or, as applicable, cause each Subservicer to
provide), in writing and in form and substance reasonably satisfactory to the
Trust Manager, the information and materials specified in paragraphs (a), (b),
(c) and (f) of this clause, and (ii) as promptly as practicable following notice
to or discovery by the Mortgage Manager, provide to the Trust Manager (in
writing and in form and substance reasonably satisfactory to the Trust Manager)
the information specified in paragraph (d) of this clause.
(a) If so requested by the Trust Manager, the Mortgage Manager shall
provide such information regarding (i) the Mortgage Manager, as originator of
the Loans and (ii) as applicable, each Subservicer, as is requested for the
purpose of compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of
Regulation AB. Such information shall include, at a minimum:
(A) the originator's form of organization;
(B) a description of the originator's origination program and how
long the originator has been engaged in originating residential mortgage
loans, which description shall include a discussion of the originator's
experience in originating mortgage loans of a similar type as the Loans;
information regarding the size and composition of the originator's
origination portfolio; and information that may be material, in the good
faith judgment of the Trust Manager, to an analysis of the performance of
the Loans, including the originators' credit-granting or underwriting
criteria for mortgage loans of similar type(s) as the Loans and such other
information as the Trust Manager may reasonably request for the purpose of
compliance with Item 1110(b)(2) of Regulation AB;
(C) a description of any material legal or governmental proceedings
pending (or known to be contemplated) against the Mortgage Manager and
each Subservicer; and
(D) a description of any affiliation or relationship between the
Mortgage Manager, each Subservicer and any of the following parties
3
to a Securitization Transaction, as such parties are identified to the
Mortgage Manager by the Trust Manager writing in advance of such
Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(b) If so requested by the Trust Manager, the Mortgage Manager shall
provide Static Pool Information with respect to the mortgage loans (of a similar
type as the Loans, as reasonably identified by the Trust Manager as provided
below) originated by the Mortgage Manager, if the Mortgage Manager is an
originator of Loans. Such Static Pool Information shall be prepared by the
Mortgage Manager on the basis of its reasonable, good faith interpretation of
the requirements of Item 1105(a)(1)-(3) of Regulation AB. To the extent that
there is reasonably available to the Mortgage Manager Static Pool Information
with respect to more than one mortgage loan type, the Trust Manager shall be
entitled to specify whether some or all of such information shall be provided
pursuant to this paragraph. The content of such Static Pool Information may be
in the form customarily provided by the Mortgage Manager, and need not be
customized for the Trust Manager. Such Static Pool Information for each prior
securitized pool, as applicable, shall be presented in increments no less
frequently than quarterly over the life of the mortgage loans included in the
vintage origination year or prior securitized pool. The most recent periodic
increment must be as of a date no later than 135 days prior to the date of the
prospectus or other offering document in which the Static Pool Information is to
be included or incorporated by reference. The Static Pool Information shall be
provided in an electronic format that provides a permanent record of the
information provided, such as a portable document format (pdf) file, or other
such electronic format reasonably required by the Trust Manager.
Promptly following notice or discovery of a material error in Static Pool
Information provided pursuant to the immediately preceding paragraph (including
an omission to include therein information required to be provided pursuant to
such paragraph), the Mortgage Manager shall provide corrected Static Pool
Information to the Trust Manager in the same format in which Static Pool
Information was previously provided to such party by the Mortgage Manager.
If so requested by the Trust Manager, the Mortgage Manager shall provide,
at the expense of the requesting party (to the extent of any additional
incremental expense associated with delivery pursuant to this Agreement), such
agreed-upon procedures letters of certified public accountants reasonably
acceptable to the Trust Manager, as applicable, pertaining to Static Pool
Information relating to prior securitized pools for securitizations closed on or
after January 1, 2006
4
or, in the case of Static Pool Information with respect to the Mortgage
Manager's originations or purchases, to calendar months commencing January 1,
2006, as the Trust Manager shall reasonably request. Such letters shall be
addressed to and be for the benefit of such parties as the Trust Manager shall
designate, which may include, by way of example, any Sponsor, any Depositor and
any broker dealer acting as underwriter, placement agent or initial purchaser
with respect to a Securitization Transaction. Any such statement or letter may
take the form of a standard, generally applicable document accompanied by a
reliance letter authorizing reliance by the addressees designated by the Trust
Manager.
(c) If so requested by the Trust Manager, the Mortgage Manager shall
provide such information regarding the Mortgage Manager, as servicer of the
Loans, and each Subservicer (each of the Mortgage Manager and each Subservicer,
for purposes of this paragraph, a "SERVICER"), as is requested for the purpose
of compliance with Item 1108 of Regulation AB. Such information shall include,
at a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's
experience in servicing assets of any type as well as a more detailed
discussion of the Servicer's experience in, and procedures for, the
servicing function it will perform under this Agreement; information
regarding the size, composition and growth of the Servicer's portfolio of
residential mortgage loans of a type similar to the Loans and information
on factors related to the Servicer that may be material, in the good faith
judgment of the Trust Manager, to any analysis of the servicing of the
Loans or the related asset-backed securities, as applicable, including,
without limitation:
(1) whether any prior securitizations of mortgage loans of a
type similar to the Loans involving the Servicer have defaulted or
experienced an early amortization or other performance triggering
event because of servicing during the three-year period immediately
preceding the related Securitization Transaction;
(2) the extent of outsourcing the Servicer utilizes;
(3) whether there has been previous disclosure of material
noncompliance with the applicable servicing criteria with respect to
other securitizations of residential mortgage loans involving the
Servicer as a servicer during the three-year period immediately
preceding the related Securitization Transaction;
(4) whether the Servicer has been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing
default or to application of a servicing performance test or
trigger; and
(5) such other information as the Trust Manager may reasonably
request for the purpose of compliance with Item 1108(b)(2) of
Regulation AB;
5
(C) a description of any material changes during the three-year
period immediately preceding the related Securitization Transaction to the
Servicer's policies or procedures with respect to the servicing function
it will perform under this Agreement for mortgage loans of a type similar
to the Loans;
(D) information regarding the Servicer's financial condition, to the
extent that there is a material risk that an adverse financial event or
circumstance involving the Servicer could have a material adverse effect
on the performance by the Mortgage Manager of its servicing obligations
under this Agreement;
(E) information regarding advances made by the Servicer on the Loans
and the Servicer's overall servicing portfolio of residential mortgage
loans for the three-year period immediately preceding the related
Securitization Transaction, which may be limited to a statement by an
authorized officer of the Servicer to the effect that the Servicer has
made all advances required to be made on residential mortgage loans
serviced by it during such period, or, if such statement would not be
accurate, information regarding the percentage and type of advances not
made as required, and the reasons for such failure to advance;
(F) a description of the Servicer's processes and procedures
designed to address any special or unique factors involved in servicing
loans of a similar type as the Mortgage Loans;
(G) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as through
liquidation of mortgaged properties, sale of defaulted mortgage loans or
workouts; and
(H) information as to how the Servicer defines or determines
delinquencies and charge-offs, including the effect of any grace period,
re-aging, restructuring, partial payments considered current or other
practices with respect to delinquency and loss experience;.
(d) If so requested by the Trust Manager for the purpose of
satisfying its reporting obligation under the Exchange Act with respect to any
class of asset-backed securities, the Mortgage Manager shall (or shall cause
each Subservicer to) (i) notify the Trust Manager in writing of (A) any material
litigation or governmental proceedings pending against the Mortgage Manager or
any Subservicer; and (B) any affiliations or relationships that develop
following the closing date of a Securitization Transaction between the Mortgage
Manager or any Subservicer and any of the parties specified in clause (D) of
paragraph (a) of this clause (and any other parties identified in writing by the
requesting party) with respect to such Securitization Transaction; and (ii)
provide to the Trust Manager a description of such proceedings, affiliations or
relationships.
(e) As a condition to the succession to the Mortgage Manager or any
Subservicer as servicer or subservicer under this Agreement by any entity (i)
into which the Mortgage Manager or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Mortgage
Manager or any Subservicer, the Mortgage Manager shall provide to the Trust
Manager, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Trust Manager of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Trust Manager, all information reasonably
requested by the Trust Manager in order to comply with its
6
reporting obligation under Item 6.02 of Form 8-K with respect to any class of
asset-backed securities.
(f) In addition to such information as the Mortgage Manager, as
servicer, is obligated to provide pursuant to other provisions of this
Agreement, if so requested by the Trust Manager, the Mortgage Manager shall
provide such information regarding the performance or servicing of the Mortgage
Loans as is reasonably required to facilitate preparation of distribution
reports in accordance with Item 1121 of Regulation AB. Such information shall be
provided concurrently with the monthly reports otherwise required to be
delivered by the servicer under this Agreement, commencing with the first such
report due not less than ten Business Days following such request.
Clause 2.04 Servicer Compliance Statement.
-----------------------------
On or before September 1 of each calendar year, commencing in the calendar
year of the creation of a Nominated Fund, unless the Nominated Fund is created
after June 30 in a calendar year in which case the following calendar year, the
Mortgage Manager shall deliver to the Trust Manager a statement of compliance
addressed to the Trust Manager and signed by an authorized officer of the
Mortgage Manager, to the effect that (i) a review of the Mortgage Manager's
activities during the immediately preceding financial year ended June 30(or
applicable portion thereof) and of its performance under this Agreement during
such period has been made under such officer's supervision, and (ii) to the best
of such officers' knowledge, based on such review, the Mortgage Manager has
fulfilled all of its obligations under this Agreement in all material respects
throughout such financial year (or applicable portion thereof) or, if there has
been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the nature
and the status thereof.
Clause 2.05 Report on Assessment of Compliance and Attestation.
--------------------------------------------------
(a) On or before September 1 of each calendar year, commencing in
the calendar year of the creation of a Nominated Fund, unless the Nominated Fund
is created after June 30 in a calendar year in which case the following calendar
year, the Mortgage Manager shall:
(i) deliver to the Trust Manager a report (in form and
substance reasonably satisfactory to the Trust Manager) regarding
the Mortgage Manager's assessment of compliance with the Servicing
Criteria during the immediately preceding financial year ended June
30, as required under Rules 13a-18 and 15d-18 of the Exchange Act
and Item 1122 of Regulation AB. Such report shall be addressed to
the Trust Manager and signed by an authorized officer of the
Mortgage Manager, and shall address each of the Servicing Criteria
specified on a certification substantially in the form of Schedule
6;
(ii) deliver to the Trust Manager a report of a
registered public accounting firm reasonably acceptable to the Trust
Manager that attests to, and reports on, the assessment of
compliance made by the Mortgage Manager and delivered pursuant to
the preceding paragraph. Such attestation shall be in accordance
with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act;
7
(iii) cause each Subservicer, and each Subcontractor
determined by the Mortgage Manager pursuant to clause 2.06(b) to be
"participating in the servicing function" within the meaning of Item
1122 of Regulation AB, to deliver to the Trust Manager an assessment
of compliance and accountants' attestation as and when provided in
paragraphs (a) and (b) of this clause; and
(iv) if requested by the Trust Manager not later than
August 1 of the financial year in which such certification is to be
delivered, deliver to the Trust Manager and any other entity that
will be responsible for signing the certification (a "XXXXXXXX-XXXXX
CERTIFICATION") required by Rules 13a-14(d) and 15d-14(d) under the
Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of
2002) on behalf of an asset-backed issuer with respect to a
Securitization Transaction a certification in the form attached
hereto as Schedule 5.
The Mortgage Manager acknowledges that the parties identified in clause
(a)(iv) above may rely on the certification provided by the Mortgage Manager
pursuant to such clause in signing a Xxxxxxxx-Xxxxx Certification and filing
such with the Commission. The Trust Manager will not request delivery of a
certification under clause (a)(iv) above unless the Trust Manager is required
under the Exchange Act to file an annual report on Form 10-K with respect to an
issuing entity whose asset pool includes Mortgage Loans.
(b) Each assessment of compliance provided by a Subservicer pursuant
to clause 2.05(a)(i) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Schedule 6. An assessment of
compliance provided by a Subcontractor pursuant to clause 2.05(a)(iii) need not
address any elements of the Servicing Criteria other than those specified by the
Mortgage Manager pursuant to clause 2.06.
Clause 2.06 Use of Subservicers and Subcontractors.
--------------------------------------
The Mortgage Manager shall not hire or otherwise utilize the services of
any Subservicer to fulfill any of the obligations of the Mortgage Manager as
servicer under this Agreement unless the Mortgage Manager complies with the
provisions of paragraph (a) of this clause. The Mortgage Manager shall not hire
or otherwise utilize the services of any Subcontractor, and shall not permit any
Subservicer to hire or otherwise utilize the services of any Subcontractor, to
fulfill any of the obligations of the Mortgage Manager as servicer under this
Agreement unless the Mortgage Manager complies with the provisions of paragraph
(b) of this clause. It shall not be necessary for the Mortgage Manager to seek
the consent of the Trust Manager to the utilization of any Subservicer or any
Subcontractor
(a) The Mortgage Manager shall cause any Subservicer used by the
Mortgage Manager (or by any Subservicer) for the benefit of the Trust Manager to
comply with the provisions of this clause and with clauses 2.02, 2.03(c) and
(e), 2.04, 2.05 and 2.07 to the same extent as if such Subservicer were the
Mortgage Manager, and to provide the information required with respect to such
Subservicer under clause 2.03(d) . The Mortgage Manager shall be responsible for
obtaining from each Subservicer and delivering to the Trust Manager any servicer
compliance statement required to be delivered by such Subservicer under clause
2.04, any assessment of compliance and attestation required to be delivered by
such Subservicer under clause 2.05 and any certification required to be
delivered to the entity that will be responsible for signing the Xxxxxxxx-Xxxxx
Certification under clause 2.05 as and when required to be delivered.
8
(b) The Mortgage Manager shall promptly upon request provide to the
Trust Manager (or any designee of the Trust Manager, such as a master servicer
or administrator) a written description (in form and substance satisfactory to
the Trust Manager) of the role and function of each Subcontractor utilized by
the Mortgage Manager or any Subservicer, specifying (i) the identity of each
such Subcontractor, (ii) which (if any) of such Subcontractors are
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Mortgage Manager shall cause any such Subcontractor used by
the Mortgage Manager (or by any Subservicer) for the benefit of the Trust
Manager to comply with the provisions of clauses 2.05 and 2.07 to the same
extent as if such Subcontractor were the Mortgage Manager. The Mortgage Manager
shall be responsible for obtaining from each Subcontractor and delivering to the
Trust Manager any assessment of compliance and attestation required to be
delivered by such Subcontractor under clause 2.05, in each case as and when
required to be delivered.
Clause 2.07 Indemnification; Remedies.
-------------------------
(a) The Mortgage Manager shall indemnify the Trust Manager, each
affiliate of the Trust Manager, and each of the following parties participating
in a Securitization Transaction: each sponsor and issuing entity; each entity
responsible for the preparation, execution or filing of any report required to
be filed with the Commission with respect to such Securitization Transaction, or
for execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such Securitization Transaction; each
entity who controls any of such parties or the Trust Manager (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act); and the
respective present and former directors, officers, employees and agents of each
of the foregoing and of the Trust Manager, and shall hold each of them harmless
from and against any losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon:
(i) (A) any untrue statement of a material fact
contained or alleged to be contained in any information, report,
certification, accountants' letter or other material provided in
written or electronic form under this Article II by or on behalf of
the Mortgage Manager, or provided under this Article II by or on
behalf of any Subservicer or Subcontractor (collectively, the
"COMPANY INFORMATION"), or (B) the omission or alleged omission to
state in the Company Information a material fact required to be
stated in the Company Information or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided, by way of clarification,
that clause (B) of this paragraph shall be construed solely by
reference to the Company Information and not to any other
information communicated in connection with a sale or purchase of
securities, without regard to whether the Company Information or any
portion thereof is presented together with or separately from such
other information;
(ii) any failure by the Mortgage Manager, any
Subservicer or any Subcontractor to deliver any information, report,
certification,
9
accountants' letter or other material when and as required under
this Article II, including any failure by the Mortgage Manager to
identify pursuant to clause 2.06(b) any Subcontractor "participating
in the servicing function" within the meaning of Item 1122 of
Regulation AB; or
(iii) any breach by the Mortgage Manager of a
representation or warranty set forth in clause 2.02(a) or in a
writing furnished pursuant to clause 2.02(b) and made as of a date
prior to the closing date of the related Securitization Transaction,
to the extent that such breach is not cured by such closing date, or
any breach by the Mortgage Manager of a representation or warranty
in a writing furnished pursuant to clause 2.02(b) to the extent made
as of a date subsequent to such closing date.
In the case of any failure of performance described in clause (a)(ii) of
this clause, the Mortgage Manager shall promptly reimburse the Trust Manager,
and each entity responsible for the preparation, execution or filing of any
report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such party
in order to obtain the information, report, certification, accountants' letter
or other material not delivered as required by the Mortgage Manager, any
Subservicer or any Subcontractor.
(b) (i) Any failure by the Mortgage Manager, any Subservicer or any
Subcontractor to deliver any information, report, certification, accountants'
letter or other material when and as required under this Article II, or any
breach by the Mortgage Manager of a representation or warranty set forth in
clause 2.02(a) or in a writing furnished pursuant to clause 2.02(b) and made as
of a date prior to the closing date of the related Securitization Transaction,
to the extent that such breach is not cured by such closing date, or any breach
by the Mortgage Manager of a representation or warranty in a writing furnished
pursuant to clause 2.02(b) to the extent made as of a date subsequent to such
closing date, shall, except as provided in clause (ii) of this paragraph,
immediately and automatically, without notice or grace period, shall entitle the
Trust Manager, in its sole discretion (i) to terminate this Agreement or remove
any Subservicer or any Subcontractor from the performance of any servicing
activities within the meaning of Item 1122 of Regulation AB with respect to the
Loans or the Securitisation Transaction and (ii) to replace such party with
respect to such activities, each at the expense of the Mortgage Manager, without
payment (notwithstanding anything in this Agreement to the contrary) of any
compensation to the Mortgage Manager; provided that to the extent that any
provision of this Agreement expressly provides for the survival of certain
rights or obligations following the termination of this Agreement or the removal
of any Subservicer or any Subcontractor, such provision shall be given effect.
(ii) Any failure by the Mortgage Manager, any
Subservicer or any Subcontractor to deliver any information, report,
certification or accountants' letter when and as required under
clause 2.04 or 2.05, including (except as provided below) any
failure by the Mortgage Manager to identify pursuant to clause
2.06(b) any Subcontractor "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB, which continues
unremedied for ten calendar days after the date on which such
information, report, certification or accountants' letter was
required to be delivered shall entitle the Trust Manager, in its
sole discretion (i) to terminate this Agreement or remove any
Subservicer or any Subcontractor from the performance of any
servicing activities
10
within the meaning of Item 1122 of Regulation AB with respect to the
Loans or the Securitisation Transaction and (ii) to replace such
party with respect to such activities, each at the expense of the
Mortgage Manager, without payment (notwithstanding anything in this
Agreement to the contrary) of any compensation to the Mortgage
Manager; provided that to the extent that any provision of this
Agreement expressly provides for the survival of certain rights or
obligations following the termination of this Agreement or the
removal of any Subservicer or any Subcontractor, such provision
shall be given effect.
The Trust Manager shall not be entitled to terminate the rights and
obligations of the Mortgage Manager pursuant to this subparagraph (b)(ii) if a
failure of the Mortgage Manager to identify a Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with respect
to mortgage loans other than the Mortgage Loans.
(iii) The Mortgage Manager shall promptly reimburse the
Trust Manager (or any designee of the Trust Manager, such as a
master servicer), for all reasonable expenses incurred by the Trust
Manager (or such designee), as such are incurred, in connection with
the termination of the Mortgage Manager as servicer and the transfer
of servicing of the Mortgage Loans to a successor servicer. The
provisions of this paragraph shall not limit whatever rights the
Trust Manager may have under other provisions of this Agreement or
otherwise, whether in equity or at law, such as an action for
damages, specific performance or injunctive relief.
11
[FREEHILLS LOGO]
SCHEDULE 3
FORM OF ANNUAL CERTIFICATION
--------------------------------------------------------------------------
Amending Deed to the Mortgage Origination and Management Agreement page 7
SCHEDULE 5
FORM OF ANNUAL CERTIFICATION
Re: Mortgage Origination and Management Agreement
I, ________________________________, the _______________________ of [NAME
OF COMPANY], certify to the Trust Manager, and its officers, with the knowledge
and intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "COMPLIANCE
STATEMENT"), the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "SERVICING
CRITERIA"), provided in accordance with Rules 13a-18 and 15d-18 under Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") and Item 1122 of
Regulation AB (the "SERVICING ASSESSMENT"), the registered public accounting
firm's attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Item 1122(b) of Regulation AB (the "ATTESTATION
REPORT"), and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to the Trust Manager pursuant
to the Mortgage Origination and Management Agreement (collectively, the "COMPANY
SERVICING INFORMATION");
(2) Based on my knowledge, the Company Servicing Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been provided to
the Trust Manager;
(4) I am responsible for reviewing the activities performed by the Company
as servicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Servicing Assessment or the Attestation Report,
the Company has fulfilled its obligations under the Mortgage Origination and
Management Agreement in all material respects; and
(5) The Compliance Statement required to be delivered by the Company
pursuant to the Mortgage Origination and Management Agreement, and the Servicing
Assessment and Attestation Report required to be provided by the Company and by
any Subservicer or Subcontractor pursuant to the Mortgage Origination and
Management Agreement, have been provided to the Trust Manager. Any material
instances of noncompliance described in such reports have been disclosed to the
Trust Manager. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
Date:
--------------------------------------------
By:
--------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
2
[FREEHILLS LOGO]
SCHEDULE 4
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
--------------------------------------------------------------------------
Amending Deed to the Mortgage Origination and Management Agreement page 8
SCHEDULE 6
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Mortgage Manager]
[Name of Subservicer] shall address, at a minimum, the criteria identified as
below as "Applicable Servicing Criteria":
------------------------------------------------------------------------------------------ ----------------------
APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
------------------------------------------------------------------------------------------ ----------------------
REFERENCE CRITERIA
-------------------- --------------------------------------------------------------------- ----------------------
GENERAL SERVICING CONSIDERATIONS
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance
or other triggers and events of default in accordance with the
transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third
parties, policies and procedures are instituted to monitor the
third party's performance and compliance with such servicing
activities.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a
back-up servicer for the mortgage loans are maintained.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the
party participating in the servicing function throughout the
reporting period in the amount of coverage required by and
otherwise in accordance with the terms of the transaction
agreements.
-------------------- --------------------------------------------------------------------- ----------------------
CASH COLLECTION AND ADMINISTRATION
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate
custodial bank accounts and related bank clearing accounts no more
than two business days following receipt, or such other number of
days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to
an investor are made only by authorized personnel.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows
or distributions, and any interest or other fees charged for such
advances, are made, reviewed and approved as specified in the
transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
The related accounts for the transaction, such as cash reserve
accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the transaction
1122(d)(2)(iv) agreements.
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1122(d)(2)(v) Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction agreements.
For purposes of this criterion, "federally insured depository
institution" with respect to a foreign financial institution means
a foreign financial institution that meets the requirements of Rule
13k-1(b)(1) of the Securities Exchange Act.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized
access.
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1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including custodial
accounts and related bank clearing accounts. These reconciliations
are (A) mathematically accurate; (B) prepared within 30 calendar
days after the bank statement cutoff date, or such other number of
days specified in the transaction agreements; (C) reviewed and
approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling items.
These reconciling items are resolved within 90 calendar days of
their original identification, or such other number of days
specified in the transaction agreements.
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APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
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REFERENCE CRITERIA
-------------------- --------------------------------------------------------------------- ----------------------
INVESTOR REMITTANCES AND REPORTING
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically,
such reports (A) are prepared in accordance with timeframes and
other terms set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms specified in
the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with
investors' or the trustee's records as to the total unpaid
principal balance and number of mortgage loans serviced by the
Servicer.
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1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance
with timeframes, distribution priority and other terms set forth in
the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Disbursements made to an investor are posted within two business
days to the Servicer's investor records, or such other number of
1122(d)(3)(iii) days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank
1122(d)(3)(iv) statements.
-------------------- --------------------------------------------------------------------- ----------------------
POOL ASSET ADMINISTRATION
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required
by the transaction agreements or related mortgage loan documents.
-------------------- --------------------------------------------------------------------- ----------------------
Mortgage loan and related documents are safeguarded as required by
1122(d)(4)(ii) the transaction agreements
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are posted to
the Servicer's obligor records maintained no more than two business
days after receipt, or such other number of days specified in the
transaction agreements, and allocated to principal, interest or
other items (e.g., escrow) in accordance with the related mortgage
loan documents.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the
Servicer's records with respect to an obligor's unpaid principal
balance.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's
mortgage loans (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance with
the transaction agreements and related pool asset documents.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and
concluded in accordance with the timeframes or other requirements
established by the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during the
period a mortgage loan is delinquent in accordance with the
transaction agreements. Such records are maintained on at least a
monthly basis, or such other period specified in the transaction
agreements, and describe the entity's activities in monitoring
delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency
is deemed temporary (e.g., illness or unemployment).
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans
with variable rates are computed based on the related mortgage loan
documents.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at least an annual basis, or
such other period specified in the transaction agreements; (B)
interest on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related mortgage loans, or such other
number of days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
2
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APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
------------------------------------------------------------------------------------------ ----------------------
REFERENCE CRITERIA
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the
servicer at least 30 calendar days prior to these dates, or such
other number of days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be
made on behalf of an obligor are paid from the servicer's funds and
not charged to the obligor, unless the late payment was due to the
obligor's error or omission.
-------------------- --------------------------------------------------------------------- ----------------------
Disbursements made on behalf of an obligor are posted within two
business days to the obligor's records maintained by the servicer,
or such other number of days specified in the transaction
1122(d)(4)(xiii) agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained
1122(d)(4)(xv) as set forth in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
[NAME OF COMPANY] [NAME OF SUBSERVICER]
Date:
-----------------------------------
By:
Name:
-----------------------------------
Title:
-----------------------------------
3
[FREEHILLS LOGO]
SIGNING PAGE
EXECUTED AS A DEED
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TRUSTEE
Signed sealed and delivered for
PERPETUAL LIMITED
by its attorney
sign here - /s/ Xxxxxxxx Xx /s/ Xxx X'Xxxxxxxx
-------------------------------------------------
Attorney
print name Xxxxxxxx Xx Xxx X'Xxxxxxxx
-------------------------------------------------
in the presence of
sign here - /s/ Xxxxxx Ruver
-------------------------------------------------
Witness
print name Xxxxxx Ruver
-------------------------------------------------
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Amending Deed to the Mortgage Origination and Management Agreement page 9
MANAGER
Signed sealed and delivered for
ME PORTFOLIO MANAGEMENT LIMITED
by two authorised signatories
sign here - /s/ Xxxxxxxx Xxxxxxxx
-------------------------------------------------
Authorised Signatory
print name Xxxxxxxx Xxxxxxxx
-------------------------------------------------
sign here - /s/ Xxxx Xxxxxx
-------------------------------------------------
Authorised Signatory
print name Xxxx Xxxxxx
-------------------------------------------------
--------------------------------------------------------------------------------
MORTGAGE MANAGER
Signed sealed and delivered for
MEMBERS EQUITY BANK PTY LIMITED
by two authorised signatories
sign here - /s/ Xxxxxxxx Xxxxxxxx
-------------------------------------------------
Authorised Signatory
print name Xxxxxxxx Xxxxxxxx
-------------------------------------------------
sign here - /s/ Xxxx Xxxxxx
-------------------------------------------------
Authorised Signatory
print name Xxxx Xxxxxx
-------------------------------------------------
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Amending Deed to the Mortgage Origination and Management Agreement page 10
