AMENDMENT NUMBER ONE Amended and Restated Master Seller’s Warranties and Servicing Agreement dated as of September 1, 2003 as amended and restated to and including May 1, 2005 by and between NATIONAL CITY MORTGAGE CO. and CITIGROUP GLOBAL MARKETS...
EXHIBIT
99.8
AMENDMENT
NUMBER ONE
Amended
and Restated Master Seller’s Warranties and Servicing Agreement
dated
as
of September 1, 2003 as amended and restated
to
and
including May 1, 2005
by
and
between
NATIONAL
CITY MORTGAGE CO.
and
CITIGROUP
GLOBAL MARKETS REALTY CORP.
This
AMENDMENT NUMBER ONE is made this 5th day of April, 2006, by and between
NATIONAL CITY MORTGAGE CO. (the “Seller”) and CITIGROUP GLOBAL MARKETS REALTY
CORP. (the “Purchaser”), to the Master Mortgage Loan Purchase and Servicing
Agreement, dated as of dated as of September 1, 2003 as amended and restated
to
and including May 1, 2005, by and between the Purchaser and the Seller (the
“Agreement”).
RECITALS
WHEREAS,
the Purchaser and the Seller
desire to amend the Agreement, subject to the terms hereof, to modify the
Agreement as specified herein; and
WHEREAS,
the Purchaser and the Seller
each have agreed to execute and deliver this Amendment Number One on the terms
and conditions set forth herein.
NOW
THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
SECTION
1. Amendments. Effective
as of April 5, 2006, the Agreement is hereby amended as follows:
(a) Section
1
of the Agreement is hereby amended by adding the following
definitions:
Commission: The
United States Securities and Exchange Commission.
Company
Information: As defined in Section 13.07(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. For the avoidance of doubt, a “Qualified
Correspondent” includes a “table broker” or mortgage lender that originates
loans underwritten and funded by the Company or an Affiliate of the
Company.
Reconstitution: Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement: Any servicing agreement relating to a
Reconstitution.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
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 13.03(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
1105(a)(1)-(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 material functions identified in Item 1122(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;
provided, however, that the term “Subservicer” shall not include any master
servicer, or any special servicer engaged at the request of a Depositor,
Purchaser or investor in a Securitization Transaction, nor any “back-up
servicer” or trustee performing servicing functions on behalf of a
Securitization Transaction.
Third-Party
Originator: Each Person, other than a Qualified Correspondent,
that originated Mortgage Loans acquired by the Company and shall not include
a
mortgage broker that does not fund loans.
Whole
Loan
Transfer: Any sale or transfer of some or all of the Mortgage
Loans, other than a Securitization Transaction.
(b) Section
1
of the Agreement is hereby amended by deleting the definition of Pass-Through
Transfer.
(c) The
Agreement is hereby amended by replacing the words “Pass-Through Transfer” each
time they appear in the Agreement with the words “Securitization
Transaction”.
(d) Section
12.15 and Section 12.16 of the Agreement are hereby renumbered as Sections
14.01
and 11.02, respectively.
(e) The
following shall be inserted as Article XIII of the Agreement
ARTICLE
XIII
COMPLIANCE
WITH REGULATION AB
Section
13.01. Intent of
the Parties.
The
Purchaser and the Company acknowledge and agree that the purpose of Article
XIII
of this Agreement is to facilitate compliance by the Purchaser and any Depositor
with the provisions of Regulation AB and related rules and regulations of the
Commission. 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 to the extent such comparable disclosure in unregistered
offerings becomes consistent with industry practice. 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 provisions of Securities
Act, the Exchange Act and the rules and regulations of the Commission thereunder
that are applicable to any Securitization Transaction (or the provisions in
a
private offering of disclosure comparable to that required under the Securities
Act to the extent such comparable disclosure in unregistered offerings becomes
consistent with industry practice). 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 negotiate in good faith with the Purchaser,
any Master Servicer or any Depositor, upon a request made in good
faith, regarding the Company’s 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 as set forth herein with the Purchaser to deliver to the
Purchaser (including any of its assignees or designees), and any Depositor,
any
and all statements, reports, certifications, records and any other information
necessary in the good faith determination of the Purchaser 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.
Section
13.02. Additional Representations and Warranties of the
Company.
(a) The
Company shall be deemed to represent to the Purchaser, and to any Depositor,
as
of the date on which information is first provided to the Purchaser or any
Depositor under Section 13.03 that, except as disclosed in writing to the
Purchaser or such Depositor prior to such date and unless otherwise disclosed
in
such information provided under Section 13.03: (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 scheduled
closing date of 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, or to the knowledge of the Company after reasonable due diligence,
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 or any Depositor on any date following the date
on
which information is first provided to the Purchaser or any Depositor under
Section 13.03, the Company shall, within five (5) 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
13.03. Information to Be Provided by the Company.
In
connection with any Securitization Transaction the Company shall (i) within
five
(5) 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, or in a mutually agreed
upon electronic format, and in form and substance reasonably satisfactory to
the
Purchaser and such Depositor, the information and materials specified in
paragraphs (a), (b), (c) 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, or in a mutually agreed upon electronic
format, and in form and substance reasonably satisfactory to the Purchaser
and
such Depositor) the information specified in paragraph (d) of this
Section.
(a) If
reasonably requested by the Purchaser or any Depositor in its good faith
judgment, the Company shall provide (or cause each Third-Party Originator or
Subservicer, as applicable, to provide) such information regarding (i) the
Company, as originator of the Mortgage Loans (including as an acquirer of
Mortgage Loans from a Qualified 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)(1), 1105, 1110, 1117 and 1119 of
Regulation AB, to the extent the Purchaser reasonably determines such
information is applicable to the Company. 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 reasonable 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. With respect
to
the information regarding the size and composition of the originator’s
origination portfolio, the Company shall deliver to the Purchaser and to any
person designated by the Purchaser, at the Purchaser’s expense, an agreed upon
procedures report of a reputable, certified public accountant pertaining to
such
information if reasonably requested by the Purchaser;
(C) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Company, or to the knowledge of the Company
after reasonable due diligence, 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:
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(1)
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the
sponsor;
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(2)
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the
depositor;
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(3)
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the
issuing entity;
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(4)
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any
servicer;
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(5)
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any
trustee;
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(6)
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any
originator;
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(7)
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any
significant obligor;
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(8)
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any
enhancement or support provider; and
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(9)
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any
other material transaction party.
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(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 customarily provided by the Company, and need
not
be customized for the Purchaser or any Depositor. Such Static Pool
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 as reasonably required in good faith 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 Purchaser or Depositor, as
applicable (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 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, and shall also be addressed to and for the
benefit of the Company and such Third-Party Originator. 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 cause
each Subservicer to so provide such information (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, 1111 (with respect to historical
delinquency information), 1117 and 1119 of Regulation AB to the extent the
Purchaser reasonably determines such information is applicable to the
Company. 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
and any 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 reasonable 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 scheduled closing date of 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 scheduled closing date of 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;
With
respect to the information regarding the size, composition and growth of the
Servicer’s portfolio of residential mortgage loans of a type similar to the
Mortgage Loans, the Servicer shall deliver to the Purchaser and to any person
designated by the Purchaser, at the Purchaser’s expense, an agreed upon
procedures report of a reputable, certified public accountant pertaining to
such
information if reasonably requested by the Purchaser;
(C) a
description of any material changes during the three-year period immediately
preceding the scheduled closing date of the related Securitization Transaction
to the Servicer’s policies or procedures with respect to the servicing function
it will perform under this 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 the effect on one or more aspects of servicing resulting
from
such financial condition would have a material impact on pool performance or
performance of the securities backed by the Mortgage Loans;
(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 scheduled closing date of 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;
(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;
(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:
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(1)
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the
sponsor;
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(2)
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the
depositor;
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(3)
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the
issuing entity;
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(4)
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any
servicer;
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(5)
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any
trustee;
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(6)
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any
originator;
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(7)
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any
significant obligor;
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(8)
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any
enhancement or support provider; and
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(9)
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any
other material transaction party
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(K) historical
delinquency information with respect to the Mortgage Loans.
(d) If
so requested by the Purchaser or any Depositor for the purpose of satisfying
its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Company shall upon discovery (or shall cause each
Subservicer and Third-Party Originator to so notify upon discovery) (i) promptly
notify the Purchaser, any Master Servicer and any Depositor in writing of (A)
any material litigation or governmental proceedings pending against the Company,
any Subservicer or any Third-Party Originator, as applicable, and (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, and
(ii)
provide to the Purchaser and any Depositor a description of such proceedings,
affiliations or relationships.
(e) As
a condition to the succession to the Company or any Subservicer as servicer
or
subservicer under this 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 and any Depositor, at least 15
Business 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 the related Securitization
Transaction.
(f) In
addition to such information as the Company, as servicer, is obligated to
provide pursuant to other provisions of this 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 provide to the party responsible for filing
such report 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) with respect
to
Mortgage Loans serviced by the Company or any Subservicer;
(ii) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB) made by the Company, any Third Party
Originator or any Subservicer; and
(iii) information
regarding any pool asset changes (such as, additions, substitutions or
repurchases).
(g) The
Company shall provide to the Purchaser, and any Depositor, such additional
information as such party may reasonably request, including evidence of the
authorization of the person signing any certification or statement, financial
information and reports, and such other information related to the Company
or
any Subservicer or the Company or such Subservicer’s performance
hereunder.
Section
13.04. Servicer
Compliance Statement.
On
or
before March 1 of each calendar year, commencing in 2007, the Company shall
deliver to the Purchaser, any Master Servicer and any Depositor a statement
of
compliance addressed to the Purchaser, any 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 as servicer during the immediately preceding
calendar year (or applicable portion thereof) and of its performance under
this
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 this 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
13.05. Report on
Assessment of Compliance and Attestation.
(a) On
or before March 1 of each calendar year, commencing in 2007, the Company
shall:
(i) deliver
to the Purchaser, any Master Servicer and any Depositor a report (in form and
substance reasonably satisfactory to the Purchaser, any 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 Servicing Criteria specified on a certification
substantially in the form of Exhibit N hereto delivered to the Purchaser
concurrently with the execution of this Agreement;
(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 13.06(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Purchaser and any
Depositor an assessment of compliance and accountants’ attestation as and when
provided in paragraphs (a) and (b) of this Section; and
(iv) if
requested by the Purchaser or any Depositor not later than February 1 of the
calendar year in which such certification is to be delivered, deliver 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 N;
provided that such certification delivered by the Company may not be filed
as an
exhibit to, or included in, any offering document or registration
statement.
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, any Depositor or any Master
Servicer 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
13.05(a)(i) 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 Agreement 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 13.05(a)(iii) need not address any elements of the Servicing
Criteria other than those specified by the Company pursuant to Section
13.06.
Section
13.06. 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 this 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 this 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 13.02,
13.03(c) and (e), (f), (g), 13.04, 13.05 and 13.07 of this Agreement to the
same
extent as if such Subservicer were the Company, and to provide the information
required with respect to such Subservicer under Section 13.03(d) of this
Agreement. 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
13.04, any assessment of compliance and attestation required to be delivered
by
such Subservicer under Section 13.05 and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 13.05 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 a master servicer or administrator) a written description
(in
form and substance satisfactory to the Purchaser, such Master Servicer and
such
Depositor) 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 13.05 and 13.07 of this
Agreement 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 required to be delivered by such Subcontractor
under Section 13.05, in each case as and when required to be
delivered.
Section
13.07. 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, an “Indemnified Party”) and shall hold
each of them harmless from and against any claims, 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, data, accountants’ letter or other material
provided under this Article XIII by or on behalf of the Company, or provided
in
written or electronic form under this Article XIII by or on behalf of any
Subservicer, Subcontractor or Third-Party Originator (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 provided, 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) 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
XIII, including any failure by the Company to identify pursuant to Section
13.06(b) any Subcontractor “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB; or
(iii) any
breach by the Company of a representation or warranty set forth in Section
13.02(a) or in a writing furnished pursuant to Section 13.02(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 13.02(b) to the extent made as of a date subsequent to such closing
date.
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 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 XIII, or any
material breach by the Company of a representation or warranty set forth in
Section 13.02(a) or in a writing furnished pursuant to Section 13.02(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 13.02(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,
constitute an Event of Default with respect to the Company under this Agreement
and any applicable Reconstitution Agreement, and shall entitle the Purchaser,
any Master Servicer or any Depositor, as applicable, in its sole discretion
to
terminate the rights and obligations of the Company as servicer under this
Agreement and/or any applicable Reconstitution Agreement if such failure or
breach is not cured within one (1) Business Day after the Seller receives
written notice of such failure or breach (which may be provided by email)
without payment (notwithstanding anything in this Agreement or any applicable
Reconstitution Agreement to the contrary) of any compensation to the Company
except to the extent provided in Section 13.07(b)(iv); provided that
any such failure to deliver any information, report, certification, accountants’
letter or other material when and as required (other than as required pursuant
to Sections 13.04 and 13.05) shall not be an Event of Default to the extent
such
information, report, certification, accountants’ letter is not material and such
information, report, certification, accountants’ letter is only required to be
delivered under Regulation AB if and to the extent material;
providedfurther that to the extent that any provision of this
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) Any
failure by the Company, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Sections 13.04 or 13.05, including (except as provided in the following
paragraph) any failure by the Company to identify pursuant to Section 13.06(b)
any Subcontractor “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB, which continues unremedied for ten (10) calendar
days after the date on which such information, report, certification or
accountants’ letter was required to be delivered shall constitute an Event of
Default with respect to the Company under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser, any Master Servicer
or any Depositor, as applicable, in its sole discretion to terminate the rights
and obligations of the Company as servicer under this Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding anything
in
this Agreement to the contrary) of any compensation to the Company (except
to
the extent provided in Section 13.07(b)(iv) below; provided that to the
extent that any provision of this 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.
Neither
the Purchaser nor any Depositor shall be entitled to terminate the rights and
obligations of the Company pursuant to this subparagraph (b)(ii) 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 this
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.
(iv) In
the event the Company is terminated pursuant to this Article XIII, the Purchaser
hereby agrees to pay the Company any accrued and outstanding servicing fees
owing to the Company to the date of such termination and to cause the successor
servicer to agree to reimburse the Company for any Servicing Advances that
the
Company actually made as servicer pursuant to this Agreement in accordance
with
the terms of the Agreement as if the Company had not been terminated as
servicer.
(c)
Notification and Cooperation. The parties hereto further
agree, and any Indemnified Party not a party hereto is deemed to agree, as
a
condition to its reliance on such indemnification, that the Company’s
indemnification obligations under this Section 13.07 are subject to the
following terms and conditions:
(i) An
Indemnified Party seeking indemnification hereunder shall give written notice
to
the Indemnifying Party within a reasonable time after the Indemnified Party
receives notice or becomes aware of an indemnifiable claim; provided, however,
the failure to give notice timely shall not affect the Indemnifying Party’s
obligation hereunder except if, and then only to the extent that, such failure
materially prejudices the Indemnifying Party or its ability to defend such
claim;
(ii) The
Indemnifying Party shall undertake the defense of the action or claim with
counsel or other representatives of its own choosing and reasonably acceptable
to the Indemnified Party (which counsel shall not, except with the consent
of
the Indemnified Party, be counsel to the Indemnifying Party);
(iii)
The Indemnified Party shall have the right to participate and assist in, but
not
control, the defense of such claim and employ separate counsel (plus any local
counsel) in any action or claim at the expense of the Indemnified Party (i.e.,
at its own expense); provided that Indemnifying Party shall bear the cost of
such expense, and the Indemnified Party shall have the right to control the
defense if: (A) the Indemnified Party or parties shall reasonably have
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available
to
the indemnifying party, (B) the employment thereof has been specifically
authorized by the Indemnifying Party in writing; (C) the Indemnifying Party
has
failed to assume the defense of such action; (D) the Indemnifying Party
shall not have employed counsel satisfactory to such Indemnified Party to
represent such Indemnified Party; or (E) the interests of the Indemnified Party
and the Indemnifying Party are adverse, in which case, if the Indemnified Party
notifies the Indemnifying Party in writing that it elects to employ separate
counsel (plus any local counsel) at the expense of the Indemnifying Party,
the
Indemnifying Party shall not have the right to assume the defense of such action
on behalf of the Indemnified Party; and
(iv)
The Indemnifying Party shall not settle or compromise any claim suit or action
against the Indemnified Party without the express prior written consent of
the
Indemnified Party, which consent shall not be unreasonably withheld. In no
event shall any Indemnifying Party be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) separate from its own
counsel for all Indemnified Parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out
of
the same general allegations or circumstances.
(d) Exclusive
Remedy. Except for remedies under the Agreement and remedies that
cannot be waived as a matter of law and injunctive relief, the rights under
this
Section 13.07 shall be the exclusive remedy for breaches of this Section 13.07
(including any covenant, obligation, representation or warranty contained in
this Section 13.07 ).
(e) Limitations. Notwithstanding
anything in this Agreement to the contrary, in no event shall the Company be
obligated under this Section 13.07 to indemnify an Indemnified Party
otherwise entitled to indemnity hereunder in respect of any indemnifiable claims
or losses that result from the willful misconduct, bad faith or negligent acts
or omissions of the Indemnified Party.
(d) Responsible
Officers. Any reference in this Article XIII to the Company’s
knowledge, discovery or awareness, or notice or identification to the Company,
or a request to the Company, shall be in each case be deemed to refer solely
to
the knowledge or awareness of, or notice or identification to, or request of,
a
Responsible Officer of the Company.
Section
13.08. Third Party Beneficiary.
For
purposes of this Section 13.08 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.
|
(f)
|
The Agreement is hereby amended by adding Attachment A hereto as
Exhibit M to the Agreement.
|
|
(g)
|
The
Agreement is hereby amended by adding Attachment B hereto as
Exhibit N to the Agreement
|
SECTION
2. Defined
Terms. Any terms capitalized but not otherwise defined herein
shall have the respective meanings set forth in the Agreement.
SECTION
3. Limited
Effect. Except as amended hereby, the Agreement shall continue in full force
and effect in accordance with its terms. Reference to this Amendment need not
be
made in the Agreement or any other instrument or document executed in connection
therewith, or in any certificate, letter or communication issued or made
pursuant to, or with respect to, the Agreement, any reference in any of such
items to the Agreement being sufficient to refer to the Agreement as amended
hereby. This Amendment Number One shall apply to all Mortgage Loans
subject to the Agreement notwithstanding that any such Mortgage Loans were
purchased prior to the date of this Amendment Number One.
SECTION
4. Governing
Law. This Amendment Number One shall be construed in accordance with the
laws of the State of New York and the obligations, rights, and remedies of
the
parties hereunder shall be determined in accordance with such laws without
regard to conflict of laws doctrine applied in such state (other than Section
5-1401 or 5-1402 of the New York General Obligations Law which shall
govern).
SECTION
5. Counterparts.
This Amendment Number One may be executed by each of the parties hereto on
any
number of separate counterparts, each of which shall be an original and all
of
which taken together shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused this Amendment Number
One to be executed and delivered by their duly authorized officers as of the
day
and year first above written.
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NATIONAL
CITY MORTGAGE CO.
|
||
|
(Seller)
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||
|
By:
|
/s/
[Authorized Agent]
|
|
|
Name:
|
||
|
Title:
|
||
|
CITIGROUP
GLOBAL MARKETS REALTY CORP.
|
||
|
(Purchaser)
|
||
|
By:
|
/s/
[Authorized Agent]
|
|
|
Name:
|
||
|
Title:
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||
Attachment
A
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
[
]
agreement dated as of [
], 200[ ] (the “Agreement”), among [IDENTIFY
PARTIES]
|
I,
________________________________, the _______________________ of [NAME OF
COMPANY], and, in such capacity, the officer in charge of the Company’s
responsibility on Exhibit A to the Agreement, 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 applicable servicing
criteria set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”),
provided in accordance with Rules 13a-18 and 15d-18 under Securities Exchange
Act of 1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
Company’s performance under the terms of the Agreement during 200[ ] that were
delivered 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 provided, 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 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 or Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master
Servicer]. The Servicing Assessment and the Attestation Report cover
all items of the servicing criteria identified on Exhibit [B] to the Agreement
as applicable to the Company. 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. The following material instances
of
noncompliance identified in the Servicing Assessment and the Attestation Report
relate to the performance or obligations of the Company under the Agreement:
(if
none, state “None”).
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Date:
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||
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By:
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||
|
Name:
|
||
|
Title:
|
Attachment
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”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
X
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
X
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
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X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations (A) are mathematically
accurate; (B) were prepared within 30 calendar days after the bank
statement cutoff date, or such other number of days specified in
the
transaction agreements; (C) were 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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X
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
|
|
|
|
|
[NAME
OF COMPANY] [NAME OF SUBSERVICER]
|
||
|
Date:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
