Exhibit 10.4(C)
EXECUTION VERSION
REGULATION AB COMPLIANCE ADDENDUM
TO MASTER FLOW SALE AND SERVICING AGREEMENT
This Regulation AB Compliance Addendum (this "Reg AB Addendum"), dated as
of January 1, 2006, by and between Bank of America, National Association (the
"Purchaser") and GMAC Mortgage Corporation (the "Company"), to that certain
Master Flow Sale and Servicing Agreement, dated as of August 1, 2003, by and
between the Company and the Purchaser (as amended, modified or supplemented, the
"Agreement").
WITNESSETH
WHEREAS, the Company and the Purchaser have agreed to adopt an addendum to
the Agreement to reflect the intention of the parties to comply with Regulation
AB.
NOW, THEREFORE, in consideration of the mutual promises and mutual
obligations set forth herein, the Company and the Purchaser hereby agree as
follows:
ARTICLE I
DEFINED TERMS
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Agreement. The following terms shall have the
meanings set forth below, unless the context clearly indicates otherwise:
Commission: The United States Securities and Exchange Commission.
Company Information: As defined in Section 2.07(a).
Depositor: The depositor, as such term is defined in Regulation AB, with
respect to any Securitization Transaction.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Master Servicer: With respect to any Securitization Transaction, the
"master servicer," if any, identified in the related transaction documents.
Qualified Correspondent: Any Person from which the Company purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Company and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Company, in accordance with underwriting
guidelines designated by the Company ("Designated Guidelines") or guidelines
that do not vary materially from such Designated Guidelines; (ii) such Mortgage
Loans were in fact underwritten as described in clause (i) above and were
acquired by the Company within 180 days after origination; (iii) either (x) the
Designated Guidelines were, at the time such Mortgage Loans were originated,
used by the Company in origination of mortgage loans of the same type as the
Mortgage Loans for the Company's own account or (y) the Designated Guidelines
were, at the time such Mortgage Loans were underwritten, designated by the
Company on a consistent basis for use by lenders in originating mortgage loans
to be purchased by the Company; and (iv) the Company employed, at the time such
Mortgage Loans were acquired by the Company, pre-purchase or post-purchase
quality assurance procedures (which may involve, among other things, review of a
sample of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by the
Company.
Reconstitution: Any Securitization Transaction or Whole Loan Transfer.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. ss.ss.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: 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 Mortgage Loans directly or indirectly to an
issuing entity in connection with an issuance of publicly offered or privately
placed, rated or unrated mortgage-backed securities or (2) an issuance of
publicly offered or privately placed, rated or unrated securities, 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 Mortgage Loans.
Servicer: As defined in Section 2.03(c).
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Static Pool Information: Static pool information as described in Item
1l05(a)(l)-(3) and 1105(c) of Regulation AB.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item l122( d) of
Regulation AB with respect to Mortgage Loans under the direction or authority of
the Company or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of the
Company 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 Company under
this Agreement or any Reconstitution Agreement that are identified in Item
1122(d) of Regulation AB.
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Third-Party Originator: Each Person, other than a Qualified Correspondent,
that originated Mortgage Loans acquired by the Company.
Whole Loan Transfer: Any sale or transfer of some or all of the Mortgage
Loans, other than a Securitization Transaction.
ARTICLE II
COMPLIANCE WITH REGULATION AB
Section 2.01. Intent of the Parties; Reasonableness.
The Purchaser and the Company acknowledge and agree that the purpose of
Article II of this Reg AB Addendum is to facilitate compliance by the Purchaser
and any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission and that the provisions of this Reg AB Addendum
shall be applicable to all Mortgage Loans included in a Securitization
Transaction closing on or after January 1, 2006, regardless whether the Mortgage
Loans were purchased by the Purchaser from the Company prior to the date hereof.
Although Regulation AB is applicable by its terms only to offerings of
asset-backed securities that are registered under the Securities Act, the
Company acknowledges that investors in privately offered securities may require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private offerings.
Neither the Purchaser nor any Depositor shall 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 (or
the provision in a private offering of disclosure comparable to that required
under the Securities Act). The Company 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 Purchaser, any Master Servicer or any
Depositor 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 Company shall cooperate fully with the Purchaser
and any Master Servicer to deliver to the Purchaser (including any of its
assignees or designees), any Master Servicer and any Depositor, any and all
statements, reports, certifications, records and any other information necessary
in the good faith determination of the Purchaser, the Master Servicer or any
Depositor to permit the Purchaser, such Master Servicer or such Depositor to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Company, any Subservicer, any Third-Party Originator and the
Mortgage Loans, or the servicing of the Mortgage Loans, reasonably believed by
the Purchaser or any Depositor to be necessary in order to effect such
compliance.
The Purchaser (including any of its assignees or designees) shall cooperate
with the Company by providing timely notice of requests for information under
these provisions and by reasonably limiting such requests to information
required, in the Purchaser's reasonable judgment, to comply with Regulation AB.
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Section 2.02. Additional Representations and Warranties of the Company.
(a) The Company hereby represents to the Purchaser, to any Master Servicer
and to any Depositor, as of the date on which information is first provided to
the Purchaser, any Master Servicer or any Depositor under Section 2.03 that,
except as disclosed in writing to the Purchaser, such Master Servicer or such
Depositor prior to such date: (i) the Company is not aware and has not received
notice that any default, early amortization or other performance triggering
event has occurred as to any other securitization due to any act or failure to
act of the Company; (ii) the Company has not been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing default or
to application of a servicing performance test or trigger; (iii) no material
noncompliance with the applicable Servicing Criteria with respect to other
securitizations of residential mortgage loans involving the Company as servicer
has been disclosed or reported by the Company; (iv) no material changes to the
Company's policies or procedures with respect to the servicing function it will
perform under this Agreement and any Reconstitution Agreement for mortgage loans
of a type similar to the Mortgage Loans have occurred during the three-year
period immediately preceding the related Securitization Transaction; (v) there
are no aspects of the Company's financial condition that could have a material
adverse effect on the performance by the Company of its servicing obligations
under this Agreement or any Reconstitution Agreement; (vi) there are no material
legal or governmental proceedings pending (or known to be contemplated) against
the Company, any Subservicer or any Third-Party Originator; and (vii) there are
no affiliations, relationships or transactions relating to the Company, any
Subservicer or any Third-Party Originator with respect to any Securitization
Transaction and any party thereto identified by the related Depositor of a type
described in Item 1119 of Regulation AB.
(b) If so requested by the Purchaser, any Master Servicer or any Depositor
on any date following the date on which information is first provided to the
Purchaser, any Master Servicer or any Depositor under Section 2.03, the Company
shall, within ten Business Days following such request, confirm in writing the
accuracy of the representations and warranties set forth in paragraph (a) of
this Section 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.
Section 2.03. Information to Be Provided by the Company.
In connection with any Securitization Transaction, the Company shall (i)
within ten Business Days following request by the Purchaser or any Depositor,
provide to the Purchaser and such Depositor (or, as applicable, cause each
Third-Party Originator and each Subservicer to provide), in writing and in form
and substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (a), (b), (c), (f) and (g) of
this Section, and (ii) as promptly as practicable following notice to or
discovery by the Company, provide to the Purchaser and any Depositor (in writing
and in form and substance reasonably satisfactory to the Purchaser and such
Depositor) the information specified in paragraph (d) of this Section.
(a) If so requested by the Purchaser or any Depositor, the Company shall
provide such information regarding (i) the Company, as originator of the
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
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Correspondent), or (ii) each Third-Party Originator, and (iii) as applicable,
each Subservicer, as is requested for the purpose of compliance with Items
1103(a)(l), 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 Mortgage 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 Purchaser or any Depositor, to an analysis of the
performance of the Mortgage Loans, including the originators'
credit-granting or underwriting criteria for mortgage loans of similar
type(s) as the Mortgage Loans and such other information as the Purchaser
or any Depositor 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 Company, each Third-Party
Originator and each Subservicer; and
(D) a description of any affiliation or relationship between the
Company, each Third-Party Originator, each Subservicer and any of the
following parties to a Securitization Transaction, as such parties are
identified to the Company by the Purchaser or any Depositor in 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 Purchaser or any Depositor, the Company shall
provide (or, as applicable, cause each Third-Party Originator to provide) Static
Pool Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Company, if the Company is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
and/or (ii) each Third-Party Originator. Such Static Pool Information shall be
prepared by the Company (or Third-Party Originator) 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
Company (or Third-Party Originator) Static Pool Information with respect to more
than one mortgage loan type, the Purchaser or any Depositor 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
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customarily provided by the Company, and need not be customized for the
Purchaser or any Depositor. Such Information for each vintage origination year
or 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 Purchaser or the Depositor, as
applicable.
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 Company shall provide corrected Static Pool Information to
the Purchaser or any Depositor, as applicable, in the same format in which
Static Pool Information was previously provided to such party by the Company.
If so requested by the Purchaser or any Depositor, the Company shall
provide (or, as applicable, cause each Third-Party Originator to provide), at
the expense of the requesting party (to the extent of any additional incremental
expense associated with delivery pursuant to this Agreement), such statements
and agreed-upon procedures letters of certified public accountants reasonably
acceptable to the Purchaser or Depositor, as applicable, pertaining to Static
Pool Information relating to prior securitized pools for securitizations closed
on or after January 1, 2006 or, in the case of Static Pool Information with
respect to the Company's or Third-Party Originator's originations or purchases,
to calendar months commencing January 1, 2006, as the Purchaser or such
Depositor shall reasonably request. Such statements and letters shall be
addressed to and be for the benefit of such parties as the Purchaser or such
Depositor 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 Purchaser or such Depositor.
(c) If so requested by the Purchaser or any Depositor, the Company shall
provide such information regarding the Company, as servicer of the Mortgage
Loans, and each Subservicer (each of the Company and each Subservicer, for
purposes of this paragraph, a "Servicer"), as is requested for the purpose of
compliance with Items 1108, 1117 and 1119 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 the Agreement and any
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Reconstitution Agreements; information regarding the size, composition and
growth of the Servicer's portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the
Servicer that may be material, in the good faith judgment of the Purchaser
or any Depositor, to any analysis of the servicing of the Mortgage 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 Mortgage 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 Purchaser or any Depositor may
reasonably request for the purpose of compliance with Item 1108(b)(2)
of Regulation AB;
(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 the Agreement and any Reconstitution Agreements for
mortgage loans of a type similar to the Mortgage 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 Company of its servicing obligations under the
Agreement or any Reconstitution Agreement;
(E) information regarding advances made by the Servicer on the
Mortgage 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;
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(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;
(I) a description of any material legal or governmental proceedings
pending (or known to be contemplated) against the Servicer; and
(J) a description of any affiliation or relationship between the
Servicer and any of the following parties to a Securitization Transaction,
as such parties are identified to the Servicer by the Purchaser or any
Depositor in 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.
(d) For the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, the Company
shall (or shall cause each Subservicer and Third-Party Originator to) (i)
provide prompt notice to the Purchaser, any Master Servicer and any Depositor in
writing of (A) any material litigation or governmental proceedings involving the
Company, any Subservicer or any Third-Party Originator, (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between the Company, any Subservicer or any Third-Party Originator
and any of the parties specified in clause (D) of paragraph (a) of this Section
(and any other parties identified in writing by the requesting party) with
respect to such Securitization Transaction, (C) any Event of Default under the
terms of this Agreement or any Reconstitution Agreement, (D) any merger,
consolidation or sale of substantially all of the assets of the Company, and (E)
the Company's entry into an agreement with a Subservicer to perform or assist in
the performance of any of the Company's obligations under this Agreement or any
Reconstitution Agreement and (ii) provide to the Purchaser and any Depositor a
description of such proceedings, affiliations or relationships.
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(e) As a condition to the succession to the Company or any Subservicer as
servicer or subservicer under the Agreement or any Reconstitution Agreement by
any Person (i) into which the Company or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Company or
any Subservicer, the Company shall provide to the Purchaser, any Master
Servicer, and any Depositor, at least 15 calendar days prior to the effective
date of such succession or appointment, (x) written notice to the Purchaser and
any Depositor of such succession or appointment and (y) in writing and in form
and substance reasonably satisfactory to the Purchaser and such Depositor, all
information reasonably requested by the Purchaser or any Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect to
any class of asset-backed securities.
(f) In addition to such information as the Company, as servicer, is
obligated to provide pursuant to other provisions of the Agreement, not later
than ten days prior to the deadline for the filing of any distribution report on
Form 10-D in respect of any Securitization Transaction that includes any of the
Mortgage Loans serviced by the Company or any Subservicer, the Company or such
Subservicer, as applicable, shall, to the extent the Company or such Subservicer
has knowledge, provide to the party responsible for filing such report
(including, if applicable, the Master Servicer) notice of the occurrence of any
of the following events along with all information, data, and materials related
thereto as may be required to be included in the related distribution report on
Form 10-D (as specified in the provisions of Regulation AB referenced below):
(i) any material modifications, extensions or waivers of pool asset
terms, fees, penalties or payments during the distribution period or that
have cumulatively become material over time (Item 1121(a)(11) of Regulation
AB);
(ii) material breaches of pool asset representations or warranties or
transaction covenants (Item 1121(a)(12) of Regulation AB); and
(iii) information regarding new asset-backed securities issuances
backed by the same pool assets, any pool asset changes (such as, additions,
substitutions or repurchases), and any material changes in origination,
underwriting or other criteria for acquisition or selection of pool assets
(Item 1121(a)(14) of Regulation AB).
(g) The Company shall provide to the Purchaser, any Master Servicer and any
Depositor, evidence of the authorization of the person signing any certification
or statement, copies or other evidence of Fidelity Bond Insurance and Errors and
Omissions Insurance policy, financial information and reports, and such other
information related to the Company or any Subservicer or the Company or such
Subservicer's performance hereunder.
(h) In the event that (i) the Company does not reasonably believe that
certain information requested under Section 2.03 is required to be disclosed
pursuant to Regulation AB and (ii) the Company has not provided such information
for any of its own securitizations, the Purchaser shall pay all reasonable
documented costs incurred by the Company in connection with the preparation and
delivery of such information, and the Company shall promptly deliver such
information after expiration of a reasonable period of time for establishing the
necessary systems and procedures to produce such information. Further,
notwithstanding anything to the contrary herein, when determining if information
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is required under Regulation AB, all threshold and other requirements shall be
determined solely by looking at the Company's mortgage loans and those of its
third-party originators. The Company shall have no obligation with respect to
disclosure or reporting under Regulation AB in the event that the aggregation of
its third-party originated Mortgage Loans with those of the Purchaser's other
sellers require additional disclosure; provided, however, the Company shall
otherwise cooperate with the Purchaser to provide disclosure or reporting under
Regulation AB in the event that such disclosure or reporting is required under
Regulation AB and not otherwise available to the Purchaser.
Section 2.04. Servicer Compliance Statement.
The Company shall use its best efforts to deliver on or before March 5th,
but in no event later than March 15th, of each calendar year, commencing in
2007, to the Purchaser, any Master Servicer and any Depositor a statement of
compliance addressed to the Purchaser, such Master Servicer and such Depositor
and signed by an authorized officer of the Company, to the effect that (i) a
review of the Company's activities during the immediately preceding calendar
year (or applicable portion thereof) and of its performance under the Agreement
and any applicable Reconstitution 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 Company has fulfilled all of its
obligations under the Agreement and any applicable Reconstitution Agreement in
all material respects throughout such calendar 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.
Section 2.05. Report on Assessment of Compliance and Attestation.
(a) The Company shall use its best efforts to, on or before March 5th, but
in no event later than March 15th, of each calendar year, commencing in 2007:
(i) deliver to the Purchaser, any Master Servicer and any Depositor a
report (in form and substance reasonably satisfactory to the Purchaser,
such Master Servicer and such Depositor) regarding the Company's assessment
of compliance with the Servicing Criteria during the immediately preceding
calendar year, 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
Purchaser, such Master Servicer and such Depositor and signed by an
authorized officer of the Company, and shall address each of the
"Applicable Servicing Criteria" specified on Exhibit B hereto;
(ii) deliver to the Purchaser, any Master Servicer and any Depositor a
report of a registered public accounting firm reasonably acceptable to the
Purchaser, such Master Servicer and such Depositor that attests to, and
reports on, the assessment of compliance made by the Company 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;
(iii) cause each Subservicer, and each Subcontractor determined by the
Company pursuant to Section 2.06(b) to be "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB to deliver to
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the Purchaser, any Master Servicer and any Depositor an assessment of
compliance and accountants' attestation as and when provided in paragraphs
(a) and (b) of this Section; and
(iv) deliver, and cause each Subservicer and Subcontractor described
in clause (iii) to provide, to the Purchaser, any Depositor, any Master
Servicer and any other Person that will be responsible for signing the
certification (a "Sarbanes 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, signed by the
appropriate officer of the Company, in the form attached hereto as Exhibit
A.
The Company acknowledges that the parties identified in clause (a)(iv) above may
rely on the certification provided by the Company pursuant to such clause in
signing a Sarbanes Certification and filing such with the Commission. Neither
the Purchaser nor any Depositor will request delivery of a certification under
clause (a)(iv) above unless a Depositor 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
Section 2.05(a)(iii) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit B hereto delivered to the
Purchaser concurrently with the execution of this Reg AB Addendum or, in the
case of a Subservicer subsequently appointed as such, on or prior to the date of
such appointment. An assessment of compliance provided by a Subcontractor
pursuant to Section 2.05(a)(iii) need not address any elements of the Servicing
Criteria other than those specified by the Company pursuant to Section 2.06.
Section 2.06. Use of Subservicers and Subcontractors.
The Company shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Company as servicer under
the Agreement or any Reconstitution Agreement unless the Company complies with
the provisions of paragraph (a) of this Section. The Company 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 Company as servicer under the Agreement or
any Reconstitution Agreement unless the Company complies with the provisions of
paragraph (b) of this Section.
(a) It shall not be necessary for the Company to seek the consent of the
Purchaser, any Master Servicer or any Depositor to the utilization of any
Subservicer. The Company shall cause any Subservicer used by the Company (or by
any Subservicer) for the benefit of the Purchaser and any Depositor to comply
with the provisions of this Section and with Sections 2.02, 2.03( c), (e), (f)
and (g), 2.04, 2.05 and 2.07 of this Reg AB Addendum to the same extent as if
such Subservicer were the Company, and to provide the information required with
respect to such Subservicer under Section 2.03(d) of this Reg AB Addendum. The
Company shall be responsible for obtaining from each Subservicer and delivering
to the Purchaser and any Depositor any servicer compliance statement required to
be delivered by such Subservicer under Section 2.04, any assessment of
11
compliance and attestation required to be delivered by such Subservicer under
Section 2.05 and any certification required to be delivered to the Person that
will be responsible for signing the Sarbanes Certification under Section 2.05 as
and when required to be delivered.
(b) It shall not be necessary for the Company to seek the consent of the
Purchaser, any Master Servicer or any Depositor to the utilization of any
Subcontractor. The Company shall promptly upon request provide to the Purchaser,
any Master Servicer and any Depositor (or any designee of the Depositor, such as
an administrator) a written description (in form and substance satisfactory to
the Purchaser, such Depositor and such Master Servicer) of the role and function
of each Subcontractor utilized by the Company 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 Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 2.05 and 2.07 of this Reg AB
Addendum to the same extent as if such Subcontractor were the Company. The
Company shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and any Depositor any assessment of compliance and
attestation and the other certifications required to be delivered by such
Subservicer and such Subcontractor under Section 2.05, in each case as and when
required to be delivered.
Section 2.07. Indemnification; Remedies.
(a) The Company shall indemnify the Purchaser, each affiliate of the
Purchaser, and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person (including, but not
limited to, any Master Servicer if applicable) responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such 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 broker dealer acting as underwriter,
placement agent or initial purchaser, each Person who controls any of such
parties or the Depositor (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees, agents and affiliates of each of the foregoing
and of the Depositor (each, a "Purchaser Indemnified Party"), and shall hold
each of them harmless from and against any losses, damages, penalties, fines,
forfeitures, reasonable 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, data or other
material provided under this Article II by or on behalf of the Company, or
provided under this Article II by or on behalf of any Subservicer, any
Subcontractor or any Third-Party Originator (collectively, the "Company
Information"), or (B) the omission or alleged omission to state in the
12
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 breach by the Company of its obligations under this Article
II, including particularly any failure by the Company, any Subservicer, any
Subcontractor or any Third-Party Originator to deliver any information,
report, certification, accountants' letter or other material when and as
required under this Article II, including any failure by the Company to
identify pursuant to Section 2.06(b) any Subcontractor "participating in
the servicing function" within the meaning of Item 1122 of Regulation AB;
(iii) any breach by the Company of a representation or warranty set
forth in Section 2.02(a) or in a writing furnished pursuant to Section
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 Company of a representation or
warranty in a writing furnished pursuant to Section 2.02(b) to the extent
made as of a date subsequent to such closing date; or
(iv) the gross negligence, bad faith or willful misfeasance in the
performance of the Company's duties, or by reason of reckless disregard of
obligations and duties, under this Article II;
provided, however, that in no event, other than with respect to any
indemnification obligations of the Company relating to any Company Information
provided by the Company for inclusion in the any prospectus, prospectus
supplement, or any private placement memorandum, or in any amendment or
supplement thereto, in a Securitization Transaction, will the Company be liable
for any consequential or punitive damages pursuant to this Section 2.07, even if
advised of the possibility of such damages.
The Purchaser shall indemnify the Company, each Person who controls the
Company (within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act), and the respective present and former directors, officers,
employees, agents and affiliates of each of the foregoing (each, a "Company
Indemnified Party;" together with the Purchaser Indemnified Parties, the
"Indemnified Parties"), and shall hold each of them harmless from and against
any losses, damages, penalties, fines, forfeitures, reasonable 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 any untrue statement
contained or alleged to be contained in any filing with the Commission or the
omission or alleged omission to state in any filing with the Commission a
material fact required to be stated or necessary to be stated in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement, alleged untrue statement, omission, or alleged omission
arose out of or was based upon any information or statement, other than the
Company Information, in a filing with the Commission.
13
If the indemnification provided for herein is unavailable or insufficient
to hold harmless an Indemnified Party, then the Company agrees that it shall
contribute to the amount paid or payable by such Indemnified Party as a result
of any claims, losses, damages or liabilities incurred by such Indemnified Party
in such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Company on the other.
In the case of any failure of performance described in clause (a)(ii) of
this Section, the Company shall promptly reimburse the Purchaser, any Depositor,
as applicable, and each Person responsible for the preparation, execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such party
in order to obtain the information, report, certification, accountants' letter
or other material not delivered as required under Regulation AB by the Company,
any Subservicer, any Subcontractor or any Third-Party Originator.
This indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
(b) (i) Any failure by the Company, any Subservicer, any Subcontractor or
any Third-Party Originator to deliver any information, report,
certification, accountants' letter or other material when and as required
under this Article II, or any breach by the Company of a representation or
warranty set forth in Section 2.02(a) or in a writing furnished pursuant to
Section 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 Company of a
representation or warranty in a writing furnished pursuant to Section
2.02(b) to the extent made as of a date subsequent to such closing date,
shall, immediately and automatically, without notice or grace period,
constitute an Event of Default with respect to the Company under the
Agreement and any applicable Reconstitution Agreement, and shall entitle
the Purchaser or any Depositor, as applicable, in its sole discretion to
terminate the rights and obligations of the Company as servicer under the
Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement or any applicable
Reconstitution Agreement to the contrary) of any compensation to the
Company (and if the Company is servicing any of the Mortgage Loans in a
Securitization Transaction, appoint a successor servicer reasonably
acceptable to any Master Servicer for such Securitization Transaction);
provided that to the extent that any provision of the Agreement and/or any
applicable Reconstitution Agreement expressly provides for the survival of
certain rights or obligations following termination of the Company as
servicer, such provision shall be given effect.
(ii) Notwithstanding subparagraph (b)(i) above, in the event that the
Company (or any applicable Subservicer or Subcontractor) delivers any
missing information, report, certification or accountants' letter after the
date required under this Reg AB Addendum and the Master Servicer or
Depositor, as the case may be, despite such late delivery, timely files the
related annual report on Form 10-K under the Exchange Act without having to
file a Form 12b-25 related to a notification of an inability to make a
14
timely filing and the Company indemnifies and promptly reimburses the
Master Servicer and Depositor pursuant to this Section for all costs and
expenses incurred as a result of such delay, any notice given by the Master
Servicer declaring an Event of Default shall be automatically revoked and
the delay in providing the missing information, report, certification or
accountants' letter shall cease to constitute an Event of Default.
Notwithstanding subparagraph (b)(i) above, in the event that the Company
fails to timely comply with Section 2.04 or 2.05, the Purchaser or the
Depositor, in its sole discretion, may elect not to terminate the Company;
provided, that any costs or expenses incurred by the Purchaser or the
Depositor in obtaining written or verbal statements or assurances from the
Commission that the related failure of the Master Servicer or Depositor to
provide the required assessment of compliance and attestation report on a
timely basis will not result in any adverse effect on the Purchaser or the
Depositor or their affiliates with respect to any shelf registration on
Form S-3 of the Purchaser or the Depositor or any of their affiliates shall
be reimbursed to the Purchaser or the Depositor, as applicable, by the
Company and that the foregoing shall not affect the right of the Purchaser
or the Depositor upon written notice to terminate all rights and
obligations of the Company under this Agreement and in and to the Mortgage
Loans.
Neither the Purchaser, any Master Servicer nor any Depositor shall be
entitled to terminate the rights and obligations of the Company pursuant to
this subparagraph (b) if a failure of the Company 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 Company shall promptly reimburse the Purchaser (or any
designee of the Purchaser, such as a master servicer) and any Depositor, as
applicable, for all reasonable expenses incurred by the Purchaser (or such
designee) or such Depositor, as such are incurred, in connection with the
termination of the Company 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 Purchaser or any Depositor may have
under other provisions of the Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at law, such as
an action for damages, specific performance or injunctive relief.
Section 2.08. Third-Party Beneficiary.
For purposes of this Article II and any related provisions thereto, each
Master Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereof as if it were a direct party to
this Agreement.
[SIGNATURES ON THE FOLLOWING PAGE]
15
IN WITNESS WHEREOF, the Purchaser and the Company have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Purchaser
By: /s/ Xxxxx X. Good
------------------------------------------------------
Name: Xxxxx X. Good
----------------------------------------------------
Title: Vice President
---------------------------------------------------
GMAC MORTGAGE CORPORATION,
as Company
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
----------------------------------------------------
Title: Vice President
---------------------------------------------------
[Signature Page to Regulation AB Compliance Addendum (servicing-retained)]
EXHIBIT A
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the "Agreement"), among
[IDENTIFY PARTIES]
I, ________________________________, the _____________________ of [NAME OF
COMPANY] (the "Company"), certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their officers, with
the knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB and
identified as the responsibility of the Company on Exhibit B to the
Regulation AB Compliance Addendum to the Agreement (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Item
1122 of Regulation AB (the "Servicing Assessment"), the registered public
accounting firm's attestation report provided in accordance with Rules
13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of Regulation
AB (the "Attestation Report"), and all servicing reports, officer's
certificates and other information relating to the servicing of the
Mortgage Loans by the Company during 200[ ] that were delivered by the
Company to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee] pursuant to the Agreement (collectively, the "Company Servicing
Information");
(2) Based on my knowledge, the Company Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in the
light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Company
Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee];
(4) I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Company has fulfilled its obligations under
the Agreement in all material respects; and
(5) The Compliance Statement required to be delivered by the Company
pursuant to this Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the Company and by any Subservicer and
Subcontractor pursuant to the Agreement, have been provided to the
[Depositor] [Master Servicer]. Any material instances of noncompliance
described in such reports have been disclosed to the [Depositor] [Master
Servicer]. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
Date:
-------------------------------
By:
-------------------------------
Name:
Title:
2
EXHIBIT B
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below
as "Applicable Servicing Criteria";
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Applicable
Servicing
Servicing Criteria Criteria
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Reference Criteria
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General Servicing Considerations
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Policies and procedures are instituted to monitor
any performance or other triggers and events of X
default in accordance with the transaction
1122(d)(1)(i) agreements.
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1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies and procedures are X
instituted to monitor the third party's performance and compliance with such servicing
activities.
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1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer for the mortgage
loans are maintained.
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1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party participating in the X
servicing function throughout the reporting period in the amount of coverage required by and
otherwise in accordance with the terms of the transaction agreements.
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Cash Collection and Administration
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1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank accounts and related X
bank clearing accounts no more than two business days following receipt, or such other number of
days specified in the transaction agreements.
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1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by X
authorized personnel.
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1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or distributions, and any X
interest or other fees charged for such advances, are made, reviewed and approved as specified in
the transaction agreements.
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1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or accounts established
as a form of overcollateralization, are separately maintained (e.g., with respect to commingling X
of cash) as set forth in the transaction agreements.
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------------------------------------------------------------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository institution as set forth X
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.
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1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. X
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1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed securities related bank X
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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Investor Remittances and Reporting
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are maintained in X
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 X
priority and other terms set forth in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted
within two business days to the Servicer's
investor X records, or such other number of days
specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled checks, or other form X
of payment, or custodial bank statements.
------------------------------------------------------------------------------------------------------------------------------------
2
------------------------------------------------------------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------------------------------------------------------------
Pool Asset Administration
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the transaction agreements X
or related mortgage loan documents.
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1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the transaction agreements X
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed and approved in X
accordance with any conditions or requirements in the transaction agreements.
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1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with the related mortgage X
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 X
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 X
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 X
foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and
concluded in accordance with the timeframes or other requirements established by the transaction
agreements.
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1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a mortgage loan is X
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).
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3
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Applicable
Servicing
Servicing Criteria Criteria
------------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with variable rates are X
computed based on the related mortgage loan documents.
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1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are X
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.
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1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before X
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.
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1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on behalf of an obligor are X
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.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business days to the obligor's X
records maintained by the servicer, or such other number of days specified in the transaction
agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance X
with the transaction agreements.
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1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 X
of Regulation AB, is maintained as set forth in the transaction agreements. if obligated
under
transaction
documents
------------------------------------------------------------------------------------------------------------------------------------
4
[NAME OF COMPANY]
[NAME OF SUBSERVICER]
Date:
-----------------------------------------------------
By:
-----------------------------------------------------
Name:
Title:
5
