SPECIAL SERVICING AGREEMENT
EXHIBIT
4.2
This
SPECIAL SERVICING AGREEMENT (the “Agreement”)
is
made and entered into as of June 1, 2006, between CitiMortgage, Inc, as servicer
and master servicer (the “Company”),
Credit-Based Asset Servicing and Securitization LLC, as holder of the Class
B
Certificates identified on Schedule I (the “Class
B Holder”)
and
▇▇▇▇▇▇ Loan Servicing LP, an affiliate of the Class B Holder, as special
servicer (the "Special
Servicer").
PRELIMINARY
STATEMENT
WHEREAS,
the Class B Holder is the holder of an interest in each of the most subordinate
outstanding classes of Mortgage Pass-Through Certificates (each a “Class
B Certificate”)
of the
series of issuances (each a "Series")
identified by the parties to reflect (i) the purchase from time to time by
the
Class B Holder of interests in any class of Class B Certificates of a Series
and
(ii) the sale from time to time by the Class B Holder of interests in any
class
of Class B Certificates.
WHEREAS,
each of the Class B Certificates was issued pursuant to the Pooling and
Servicing Agreement or Agreements (each a “Pooling
and Servicing Agreement”)
identified on Schedule I and evidences an ownership interest in a pool of
Mortgage Loans.
WHEREAS,
the Company is the servicer and master servicer of the Mortgage Loans related
to
each Series and the Mortgage Loans are serviced in accordance with the
applicable Pooling and Servicing Agreement.
WHEREAS,
in connection with the purchase by Class B Holder of a Series of Class B
Certificates (whether owned by the Class B Holder on the date hereof or
purchased by the Class B Holder at any time in the future), the Class B Holder
and the Company have agreed that (i) with respect to Mortgage Loans of a
Series
that become 90 or more days delinquent (each such Mortgage Loan, a "Delinquent
Mortgage Loan"),
the
Company will provide to the Class B Holder certain information with respect
to
such Delinquent Mortgage Loan, and (ii) the Class B Holder, if it owns 100%
of
the then most subordinate outstanding class of Class B Certificates of a
Series
may elect to have certain Mortgage Loans of a Series which are 90 or more
days
delinquent or any REO Property of a Series (each such Mortgage Loan or REO
Property, a "Specially
Serviced Mortgage Loan")
serviced by the Special Servicer.
NOW
THEREFORE, in consideration of the premises and mutual agreements hereinafter
set forth, the Company, the Class B Holder and the Special Servicer hereby
agree
as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions
Incorporated by Reference.
Capitalized
terms used but not otherwise defined in this Agreement shall have the respective
meaning ascribed thereto as set forth in the related Pooling and Servicing
Agreement.
ARTICLE
II
.
DESIGNATION
OF SPECIALLY SERVICED MORTGAGE LOANS AND SPECIAL SERVICING
PROCEDURES
Section
2.01 Approval
of ▇▇▇▇▇▇ Loan Servicing LP as Special Servicer
The
Company hereby approves ▇▇▇▇▇▇ Loan Servicing LP as an approved Special
Servicer.
Section
2.02 Specially
Serviced Mortgage Loans.
(a)
To
the extent and for so long as the Class B Certificates of a Series are
outstanding and the Class B Holder owns at least 100% of the then most
subordinate outstanding class of the Class B Certificates of such Series,
Mortgage Loans of the related Series which are 90 or more days delinquent
and/or
REO Property of a Series may, at the option of the Class B Holder, be designated
in writing by the Class B Holder as Specially Serviced Mortgage Loans and
transferred to the Special Servicer for servicing. The Special Servicer shall
service the Specially Serviced Mortgage Loans in accordance with the terms
hereof and the related Pooling and Servicing Agreement.
On
or
before the fourth business day of each calendar month, the Company as the
servicer shall provide the Special Servicer with a preliminary list of REO
Property and those Mortgage Loans which are 90-days or more delinquent as
of
such date. On or before the thirteenth calendar day of the month, the Company
as
the master servicer shall provide the Special Servicer with a list of REO
Property and those Mortgage Loans which are 90-days or more delinquent as
of
such date. The list provided shall include the following information as to
each
such Delinquent Mortgage Loan: delinquency status, foreclosure status, and
bankruptcy.
On
or
before the 15th
calendar
day of such month, the Special Servicer, on behalf of the Class B Holder,
shall
provide written notice to the Company of each such Mortgage Loan and REO
Property which has been designated a Specially Serviced Mortgage Loan by
the
Class B Holder. Servicing of each Mortgage Loan and REO Property so designated
as a Specially Serviced Mortgage Loan for which the Company is servicer shall
be
transferred by the Company to the Special Servicer effective on the first
day of
the calendar month immediately following the month of such designation (the
"Effective Date") unless another date has been mutually agreed upon by the
Special Servicer and the Company substantially in the manner set forth herein.
Each Mortgage Loan and REO Property so designated as a Specially Serviced
Mortgage Loan for which the Company is master servicer shall result in the
Company giving direction to the underlying servicer that the servicing of
such
loans is to
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be
transferred to the Special Servicer effective on the first day of the calendar
month immediately following the month of such designation (the "Effective
Date")
unless another date has been mutually agreed upon by the servicer, the Special
Servicer and the Company. The Company will work with the Special Servicer
to
encourage the servicer to comply with a transfer substantially in the manner
set
forth herein and in Exhibit B hereto.
The
parties hereto agree to customary and reasonable fees such as recording of
assignments resulting from the transfer of the servicing of a Mortgage Loan.
Fees beyond this would be negotiated between the parties.
(b)
As of
the Effective Date of each Specially Serviced Mortgage Loan, the Special
Servicer shall succeed to and undertake all rights, duties and obligations
of
the prior servicer (including, without limitation, the making of advances,
any
right to purchase such Specially Serviced Mortgage Loan at the purchase price
set forth in the related Pooling and Servicing Agreement and the right to
receive the servicing fee and retain additional servicing compensation with
respect to such Specially Serviced Mortgage Loan) pursuant to and in accordance
with the terms of the related Pooling and Servicing Agreement. The Special
Servicer shall provide all loan level information by the 5th
calendar
day to the Company as master servicer and remit as stated in the respective
Pooling and Servicing Agreement on the eighteenth (18th)
day, or
if such eighteenth (18th)
day is
not a Business day, the Business Day immediately preceding such eighteenth
(18th)
day
beginning with the succeeding month after the Effective Date. The Company
may
also be entitled to additional master servicing compensation not based on
the
master servicing fee rate, as agreed with the Special Servicer, such as any
net
REO proceeds in excess of the outstanding principal balance and accrued interest
on a mortgage loan. In addition, with the exception of sub prime mortgage
loans,
,
if the
Special Servicer determines that an advance will not be recoverable, the
Special
Servicer will first consult with the Company prior to the date the advance
would
otherwise be required and discuss with the Company why the advance is deemed
non
recoverable as well as provide a value assessment. .
(c)
The
Company acknowledges that the Special Servicer or an affiliate may
receive
usual and customary real estate referral fees from real estate brokers in
connection with the listing and disposition of REO Property.
(d)
Subject to sections 2.03, 5.15 and 5.16, once a Mortgage Loan becomes a
Specially Serviced Mortgage Loan, such Mortgage Loan shall remain a Specially
Serviced Mortgage Loan, and shall continue to be serviced by the Special
Servicer (or a successor appointed under Section 2.04), regardless of
delinquency status, whether the related Mortgaged Property becomes an REO
Property or otherwise, until the earlier of the liquidation or other disposition
of such Specially Serviced Mortgage Loan or the termination of this Agreement;
provided, however, that if the Company exercises its right as Master Servicer
to
purchase all of the Mortgage Loans in a Trust Fund pursuant to an optional
termination provision under the related Pooling and Servicing Agreement,
the
servicing of any related Specially Serviced Mortgage Loans shall be transferred
promptly by the Special Servicer in accordance with written instructions
from
the Company.
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Upon
termination of the Trust Fund, if Company does not provide transfer instructions
and if Special Servicer does not elect to terminate this Agreement, Special
Servicer shall continue to service the Mortgage Loans until liquidation or
sale,
on condition that the Special Servicer will service on an actual/actual basis,
and Special Servicer and Company will negotiate a new service fee effective
upon
termination of the Trust Fund. Company agrees to provide Special Servicer
written notice mailed (30) thirty days prior to the distribution day upon
which
final payment of the Certificates will be made.
(e)
If
the Class B Holder (i) transfers such percentage interest in any Class B
Certificates of a Series such that the Class B Holder owns less than 100%
of the
then outstanding Certificate Principal Balance of such class, or (ii) purchases
such percentage interest in any Class B Certificates of a Series such that
the
Class B Holder owns 100% of the then outstanding Certificate Principal Balance
of such class, the Class B Holder shall promptly notify the Company and the
Special Servicer in writing within fifteen (15) business days of any such
transfer or acquisition. With respect to the purchase of 100% of the Class
B
Certificates of any Series by the Class B Holder after the date hereof, this
Agreement shall be effective as of the date such written notice of acquisition
is received by the Company
(f)
Notwithstanding any provision herein to the contrary, the Special Servicer
shall
(i) in no event be obligated to effect any cure or remedy in connection with
a
deficiency in the documentation for any Specially Serviced Mortgage Loan
to the
extent such deficiency existed at the time such Mortgage Loan became a Specially
Serviced Mortgage Loan or (ii) have any responsibility for any obligations,
duties, or liabilities of the Company with respect to the servicing of a
Specially Serviced Mortgage Loan that arose prior to the related Effective
Date
for such Specially Serviced Mortgage Loan, other than those which would
customarily be assumed after the Effective Date.
(g)
Notwithstanding the foregoing, and to the extent not prohibited by the related
Pooling and Servicing Agreement, the Company and Special Servicer agree to
the
Operational Requirements listed on Exhibit B attached hereto and made a part
hereof.
Section
2.03 Termination
of Special Servicer for Default.
The
Company shall have the right, immediately upon written notice, to terminate
the
Special Servicer’s right and obligation to subservice all of the Specially
Serviced Mortgage Loans hereunder in the event (each such event, an
“Event
of Default”)
of:
(i) any
failure by the Special Servicer to remit to the Company for distribution
to the
Certificateholders of a Series any payment (including without limitation,
any
failure to make any Advance not determined to be not recoverable by the Special
Servicer under Section 2.02(b)) required to be made under the terms of this
Agreement or the related Pooling and Servicing Agreement which continues
unremedied for a period of one business day after the date upon which written
notice of such failure, requiring the same to be remedied, shall have been
given
to the Special Servicer by the Company; or
4
(ii) any
failure on the part of the Special Servicer duly to observe or perform in
any
material respect any other of the cove-nants or agreements on the part of
the
Special Servicer contained in this Agree-ment (including any breach of the
Special Servicer’s representations and warranties contained in Section 4.03
hereof) which materially and adversely affects the interests of the
Certificateholders of a Series which continues unremedied for a period of
30
days after the date on which written notice of such failure, requiring the
same
to be remedied, shall have been given to the Special Servicer by the Company;
or
(iii) a
decree
or order of a court or agency or super-visory authority having jurisdiction
in
an involuntary case under any present or future federal or state bankruptcy,
insolvency or similar law or the appoint-ment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and
liabilities or similar proceedings, or for the winding--up or liquidation
of its
affairs, shall have been entered against the Special Servicer and such decree
or
order shall have remained in force undischarged or unstayed for a period
of 60
consecutive days; or
(iv) the
Special Servicer shall consent to the appoint-ment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, marshalling of assets
and
liabilities or similar proceedings of or relating to the Special Servicer
or of
or relating to all or substantially all of its property; or
(v) the
Special Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of or otherwise
voluntari-ly commence a case or proceeding under any appli-cable bankruptcy,
insol-vency, reorganization or other similar statute, make an assignment
for the
benefit of its credi-tors, or voluntarily suspend payment of its
obligations.
If
an
Event of Default as described in clauses (iii), (iv) or (v) above shall occur,
then, and in each and every such case, upon receipt of written notice from
the
Company, the Special Servicer shall immediately remit to the Company all
amounts
in the Collection Accounts and the Escrow Accounts and all rights of the
Special
Servicer to service the Specially Serviced Mortgage Loans shall terminate.
If an
Event of Default as described in clauses (i) or (ii) above shall occur, then,
and in each and every such case, upon receipt of written notice from the
Company, the Special Servicer shall immediately remit to the Company all
amounts
in the related Collection Account and the related Escrow Accounts and all
rights
of the Special Servicer to service the Specially Serviced Mortgage Loans
of each
affected Series shall terminate. Following the receipt of written notice
from
the Company as provided above, all authority and power of the Special Servicer
to subservice (a) all the Specially Serviced Mortgage Loans in the case of
an
Event of Default as described in clauses (iii), (iv) or (v) above or (b)
all the
Specially Serviced Mortgage Loans of each affected Series in the case of
an
Event of Default as described in clauses (i) or (ii) above shall pass to
and be
vested in the Company pursuant to
5
and
under
this Section 2.03, and the Special Servicer shall do all things necessary
to
effect a transfer of the servicing rights back to the Company. In this regard,
the Company is hereby authorized and empowered to execute and deliv-er, on
behalf of the Special Servicer, as attorney--in--fact or otherwise, any and
all
documents and other instru-ments, and to do or accom-plish all other acts
or
things necessary or appropriate to effect the purposes of such notice of
termina-tion, whether to complete the transfer and endorsement or assign-ment
of
the affected Specially Serviced Mortgage Loans and related documents, or
otherwise. The Special Servicer agrees to cooperate with the Company in
implementing the termination of the Special Servicer’s respon-sibili-ties and
rights hereunder to the extent required by this Section 2.03, includ-ing,
without limita-tion, the transfer to the Company or its appointed agent for
adminis-tra-tion by it of all amounts in the possession of the Special Servicer
or thereaf-ter be receiv-ed with respect to all of the Specially Serviced
Mortgage Loans serviced hereunder in the case of an Event of Default as
described in clauses (iii), (iv) or (v) above or with respect to all of the
Specially Serviced Mortgage Loans of each affected Series in the case of
an
Event of Default as described in clauses (i) or (ii) above , as the case
may be,
and the transfer of the related Servicing Rights back to the Company.
2.04 Appointment
of Successor Special Servicer.
Only
with
prior consent of the Company, the Class B Holder shall have the right, upon
90
days prior written notice (or such lesser period as the Company may approve
in
writing) to the Company and the Special Servicer, to appoint a successor
special
servicer meeting the requirements set forth in clauses (i), (ii) and (iii)
below. Any such successor special servicer shall succeed to all rights and
assume all of the responsibilities, duties and liabilities of the Special
Servicer under this Agreement simultaneously with the termination of the
Special
Servicer's responsibilities, duties and liabilities under this Agreement.
In the
event that the Special Servicer's duties, responsibilities and liabilities
under
this Agreement should be terminated pursuant to this Agreement, the Special
Servicer shall discharge such duties and responsibilities during the period
from
the date it acquires knowledge of such termination until the effective date
thereof with the same degree of diligence and prudence which it is obligated
to
exercise under this Agreement, and shall take no action whatsoever that might
impair or prejudice the rights or financial condition of its successor. The
removal of the Special Servicer shall not become effective until a successor
shall be appointed pursuant to this Section and shall in no event relieve
the
Special Servicer of the representations and warranties made pursuant to Section
4.03 and the remedies available to the Class B Holder and/or the Company
under
Sections 4.04 and 5.01, it being understood and agreed that the provisions
of
such Sections 4.04 and 5.01 shall be applicable to the Special Servicer
notwithstanding any such termination of it, or the termination of this
Agreement.
Any
successor special servicer shall (i) be an institution having a net worth
of not
less than $5,000,000, (ii) the appointment of such successor servicer will
not
result in the downgrading in any rating by any applicable rating agency of
any
security issued in connection with the applicable Pooling and Servicing
Agreements, (iii) be approved as a seller/servicer of single-family mortgage
loans by the Department of Housing and Urban Development, (iv) which is a
FNMA
or FHLMC
6
approved
seller/servicer in good standing and and (v) have and keep in full effect
its
existence, rights and franchises as a corporation (or such other corporate
form), and shall obtain its qualification to do business as a foreign
corporation (or such other corporate form) in each jurisdiction in which
such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Specially Serviced Mortgage
Loans
and to perform its duties under this Agreement. Any successor appointed as
provided herein shall execute, acknowledge and deliver to the Class B Holder
and
the Company an instrument accepting such appointment, wherein the successor
shall make the representations and warranties set forth in Section 4.03,
whereupon such successor shall become fully vested with all the rights, powers,
duties, responsibilities, obligations and liabilities of the Special Servicer,
with like effect as if originally named as a party to this
Agreement.
Within
30
days of the appointment of a successor special servicer by the Class B Holder,
the Special Servicer shall prepare, execute and deliver to the successor
entity
any and all documents and other instruments, place in such successor's
possession all servicing files related to the Specially Serviced Mortgage
Loans,
and do or cause to be done all other acts or things necessary or appropriate
to
effect the purposes of such notice of termination, including but not limited
to
the transfer and endorsement of the related Mortgage Notes and other documents,
and the Class B Holder shall do or cause to be done the preparation and
recordation of Assignments of Mortgage and Deeds at the Class B Holder's
sole
expense.
If
the
rights of the Special Servicer are terminated under this Agreement, the Special
Servicer shall cooperate with the Class B Holder, the Company, and any successor
in effecting the termination of the Special Servicer's responsibilities and
rights hereunder and the transfer of servicing responsibilities to the successor
special servicer or other servicer, including without limitation, the transfer
to such successor or other servicer of all amounts received by it with respect
to the Specially Serviced Mortgage Loans. Further, the Special Servicer shall
execute and deliver such instruments and do such other things as may reasonably
be required to more fully and definitively vest in the successor or other
servicer all such rights, powers, duties, responsibilities, obligations and
liabilities of the Special Servicer.
ARTICLE
III
DELINQUENT
MORTGAGE LOANS OTHER THAN SPECIALLY SERVICED MORTGAGE
LOANS
Section
3.01. Reporting
of Delinquent Mortgage Loans.
(a)
To
the extent and for so long as the Class B Certificates of a Series are
outstanding and any interest in such Class B Certificates is held by the
Class B
Holder, the Company will provide the following information available on its
website at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
on each
Distribution Date:
7
|
(1)
|
With
respect to each Series, the number and aggregate Principal Balance
of the
Mortgage Loans delinquent one, two and three months or more, together
with
the Principal Balance of each Mortgage Loan delinquent, one, two
and three
months or more;
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|
(2)
|
With
respect to each Series, the (i) number and aggregate Principal
Balance of
Mortgage Loans with respect to which foreclosure proceedings have
been
initiated, and (ii) the number of Mortgaged Properties acquired
through
foreclosure, deed in lieu
of foreclosure or other exercise of rights respecting the Trustee’s
security interest in the Mortgage Loans, and with respect to each
Mortgage
Loan, the (i) Principal Balance of each such Mortgage Loan with
respect to
which foreclosure proceedings have been initiated, and (ii) the
appraised
value of each Mortgaged Property acquired through foreclosure,
deed in
lieu of foreclosure or other exercise of rights respecting the
Trustee’s
security interest in the related Mortgage Loan;
and
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|
(3)
|
With
respect to each Series, the amount of Realized Losses allocable
to the
Certificates on the related Distribution Date and the cumulative
amount of
Realized Losses allocated to such Certificates since the Cut-off
Date, and
with respect to each Mortgage Loan, the amount of Realized Losses
attributable to such Mortgage Loan on the related Distribution
Date and
the cumulative amount of Realized Losses attributable to such Mortgage
Loan since the Cut-off Date.
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Section
3.02 Review
of Procedures.
The
Company hereby agrees that the Class B Holder shall have the right, at its
own
expense and during normal business hours, to review any and all of the books,
records, or other information of the Company which may be relevant to the
Company’s direct collection, loss mitigation, foreclosure and REO management
procedures currently in place in order to confirm that the procedures used
by
the Company and its subservicers are in accordance with the customary servicing
practices of prudent mortgage loan servicers. In order to discuss such books,
records or other information, the Company shall make personnel available
who are
knowledgeable about such matters.
The
Class
B Holder and the Special Servicer hereby agree that the Company shall have
the
right, at its own expense and during normal business hours, to review any
and
all of the books, records, or other information of the Special Servicer which
may be relevant to the Special Servicer’s direct collection, loss mitigation,
foreclosure and REO management procedures currently in place in order to
confirm
that the procedures used by the Special Servicer are in accordance with the
customary servicing practices of prudent mortgage loan servicers. In order
to
discuss such books,
8
records
or other information, the Special Servicer
shall make personnel available who are knowledgeable about such
matters.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
Section
4.01. Organizational
and Other Related Warranties of the Class B Holder.
The
Class B Holder hereby makes the following representations and warranties
to the
Company and the Special Servicer:
(i) Organization
and Good Standing.
The
Class B Holder is an entity duly organized, validly existing, and in good
standing under the laws of its state of incorporation or formation or the
laws
of the United States.
(ii) No
Violation.
Neither
the execution and delivery by the Class B Holder of this Agreement, nor the
consummation by the Class B Holder of the transactions contemplated hereby,
nor
the performance of and compliance by the Class B Holder with the provisions
of
this Agreement, will conflict with or result in a breach or violation of,
or
constitute a default (or an event which, with notice or the lapse of time,
or
both, would constitute a default) under, the organizational documents (its
articles of incorporation or charter or by-laws) of the Class B Holder, or
any
of the provisions of any law, rule, regulation, judgment, decree, demand,
or
order (of any federal, state, or local governmental or regulatory authority
or
court) binding on the Class B Holder, or any of its respective properties,
or
any of the provisions of any indenture, mortgage, contract, instrument, or
other
document to which the Class B Holder is a party or by which it is bound,
or
result in the creation or imposition of any lien, charge, or encumbrance
upon
any of their respective properties pursuant to the terms of any indenture,
mortgage, contract, instrument, or other document. The Class B Holder is
not
otherwise in violation of any law, rule, regulation, judgment, decree, demand,
or order (of any federal, state or local governmental or regulatory authority
or
court), which violation, in the Class B Holder's, good faith and reasonable
judgment, is likely to affect materially and adversely its ability to perform
its obligations hereunder.
(iii) Authorization
and Enforceability.
The
execution and delivery by the Class B Holder of this Agreement, the consummation
of the transactions contemplated hereby, and the performance and compliance
by
the Class B Holder with the terms hereof are within the powers of the Class
B
Holder, and have been duly authorized by all necessary action on the part
of the
Class B Holder. All organizational resolutions and consents necessary for
the
Class B Holder to enter into and consummate all transactions contemplated
hereby
have been obtained. This Agreement has been duly executed and delivered by
the
Class B Holder and constitutes the legal, valid and binding obligation of
the
Class B Holder, enforceable against it in accordance with its terms, subject
to
applicable bankruptcy, insolvency, reorganization, moratorium, and other
similar
laws affecting creditors’ rights generally, and to general principles of equity,
regardless of whether such enforcement is considered in a proceeding in equity
or at law. The Class B Holder has not failed to obtain any consent, approval,
authorization, or order of, or failed to cause any registration or qualification
with, any court or regulatory authority or other governmental body
9
having
jurisdiction over it, which consent, approval, authorization, order,
registration, or qualification is required for, and the absence of which
would
materially adversely affect, the legal and valid execution, delivery, and
performance of this Agreement by the Class B Holder.
(iv) No
Litigation or Adverse Conditions.
No
litigation is pending or, to the best of the Class B Holder's knowledge,
threatened against it, which, if determined adversely to the Class B Holder
would prohibit the Class B Holder from entering into this Agreement or, in
the
good faith and reasonable judgment of the Class B Holder, is likely to
materially and adversely affect either the ability of the Class B Holder
to
perform its obligations hereunder.
Section
4.02. Organizational
and Other Related Warranties of the Company.
The
Company hereby makes the following representations and warranties to the
Class B
Holder and the Special Servicer:
(i) Organization
and Good Standing.
The
Company is an entity duly organized, validly existing, and in good standing
under the laws of its state of incorporation or formation or the laws of
the
United States, and is in compliance with the laws of each state in which
any
property is located to the extent necessary to ensure the enforceability
of each
Mortgage Loan and to perform its obligations hereunder and the Pooling and
Servicing Agreement.
(ii) No
Violation.
Neither
the execution and delivery by Company of this Agreement, nor the consummation
by
it of the transactions contemplated hereby, nor the performance of and
compliance by the Company with the provisions hereof or of the Pooling and
Servicing Agreement, will conflict with or result in a breach or violation
of,
or constitute a default (or an event which, with notice or the lapse of time,
or
both, would constitute a default) under, the organizational documents (its
articles of incorporation or charter or by-laws) of the Company, or any of
the
provisions of any law, rule, regulation, judgment, decree, demand, or order
(of
any federal, state, or local governmental or regulatory authority or court)
binding on the Company, or any of its properties, or any of the provisions
of
any indenture, mortgage, contract, instrument, or other document (including,
without limitation, any Pooling and Servicing Agreement) to which the Company
is
a party or by which it is bound, or result in the creation or imposition
of any
lien, charge, or encumbrance upon any of their respective properties pursuant
to
the terms of any indenture, mortgage, contract, instrument, or other document.
The Company is not otherwise in violation of any law, rule, regulation,
judgment, decree, demand, or order (of any federal, state or local governmental
or regulatory authority or court), which violation, in the Company's good
faith
and reasonable judgment, is likely to affect materially and adversely either
its
ability to perform its obligations hereunder or under the Pooling and Servicing
Agreements, or the financial condition of the Company.
(iii) Authorization
and Enforceability.
The
execution and delivery by the Company of this Agreement, the consummation
of the
transactions contemplated hereby, and the performance and compliance by the
Company with the terms hereof and of the Pooling and Servicing Agreements
are
within the powers of the Company, and have been duly authorized by all necessary
action on the part of the Company. All organizational resolutions and consents
necessary for the Company to enter into and consummate all transactions
contemplated hereby
10
have
been obtained. This Agreement has been duly
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable against it in accordance with
its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium,
and other similar laws affecting creditors’ rights generally, and to general
principles of equity, regardless of whether such enforcement is considered
in a
proceeding in equity or at law. The Company has not failed to obtain any
consent, approval, authorization, or order of, or failed to cause any
registration or qualification with, any court or regulatory authority or
other
governmental body having jurisdiction over the Company, which consent, approval,
authorization, order, registration, or qualification is required for, and
the
absence of which would materially adversely affect, the legal and valid
execution, delivery, and performance of this Agreement by the
Company.
(iv) Approvals
and Permits.
The
Company possesses such certificates, authorizations, licenses, and permits
issued by the appropriate state, federal, and foreign regulatory agencies
or
bodies necessary to conduct the business now operated by it, and the Company
has
not received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization, or permit which, singly
or
in the aggregate, if the subject of an unfavorable decision, ruling, or finding,
would materially and adversely affect the conduct of the business, operations,
financial condition, or income of the Company.
(v) No
Litigation or Adverse Conditions.
No
litigation is pending or, to the best of the Company's knowledge, threatened
against it, which, if determined adversely to the Company would prohibit
the
Company from entering into this Agreement or, in the good faith and reasonable
judgment of the Company, is likely to materially and adversely affect either
its
ability to perform its obligations hereunder or under the Pooling and Servicing
Agreements or the financial condition of the Company. The Company has no
knowledge of any recent adverse financial condition or event with respect
to
itself that, in its good faith and reasonable judgment, is likely to materially
and adversely affect its ability to perform its obligations hereunder or
under
the Pooling and Servicing Agreements.
(vi) Fidelity
Bond; Errors and Omission Insurance.
Each
officer, director, employee, consultant and advisor of the Company with
responsibilities concerning the servicing and administration of the Mortgage
Loans is covered by errors and omissions insurance and fidelity bond insurance
in the amounts and with the coverage required under the related Pooling and
Servicing Agreement for it to maintain. Neither the Company nor any of its
officers, directors, employees, consultants, or advisors involved in the
servicing or administration of the Mortgage Loans has been refused such coverage
or insurance.
Section
4.03. Organizational
and Other Related Warranties of the Special Servicer.
The
Special Servicer hereby makes the following representations and warranties
to
the Company and the Class B Holder:
(i) Organization
and Good Standing.
The
Special Servicer is an entity duly organized, validly existing, and in good
standing under the laws of its state of incorporation or
11
formation
or the laws of the United States, and is in
compliance with the laws of each state in which any property is located to
the
extent necessary to ensure the enforceability of each Mortgage Loan and to
perform its obligations hereunder.
(ii) No
Violation.
Neither
the execution and delivery by Special Servicer of this Agreement, nor the
consummation by it of the transactions contemplated hereby, nor the performance
of and compliance by the Special Servicer with the provisions hereof ,
will
conflict with or result in a breach or violation of, or constitute a default
(or
an event which, with notice or the lapse of time, or both, would constitute
a
default) under, the organizational documents (its articles of incorporation
or
charter or by-laws) of the Special Servicer, or any of the provisions of
any
law, rule, regulation, judgment, decree, demand, or order (of any federal,
state, or local governmental or regulatory authority or court) binding
on the
Special Servicer, or any of its properties, or any of the provisions of
any
indenture, mortgage, contract, instrument, or other document
to which the Special Servicer is a party or by which it is bound, or result
in
the creation or imposition of any lien, charge, or encumbrance upon any
of their
respective properties pursuant to the terms of any indenture, mortgage,
contract, instrument, or other document. The Special Servicer is not otherwise
in violation of any law, rule, regulation, judgment, decree, demand, or
order
(of any federal, state or local governmental or regulatory authority or
court),
which violation, in the Special Servicer's good faith and reasonable judgment,
is likely to affect materially and adversely either its ability to perform
its
obligations hereunder, or the financial condition of the Special
Servicer.
(iii) Authorization
and Enforceability.
The
execution and delivery by the Special Servicer of this Agreement, the
consummation of the transactions contemplated hereby, and the performance
and
compliance by the Special Servicer with the terms hereof are within the powers
of the Special Servicer, and have been duly authorized by all necessary action
on the part of the Special Servicer. All organizational resolutions and consents
necessary for the Special Servicer to enter into and consummate all transactions
contemplated hereby have been obtained. This Agreement has been duly executed
and delivered by the Special Servicer and constitutes the legal, valid and
binding obligation of the Special Servicer, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, and other similar laws affecting creditors’ rights generally, and to
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law. The Special Servicer has
not
failed to obtain any consent, approval, authorization, or order of, or failed
to
cause any registration or qualification with, any court or regulatory authority
or other governmental body having jurisdiction over the Special Servicer,
which
consent, approval, authorization, order, registration, or qualification is
required for, and the absence of which would materially adversely affect,
the
legal and valid execution, delivery, and performance of this Agreement by
the
Special Servicer.
(iv) Approvals
and Permits.
The
Special Servicer possesses such certificates, authorizations, licenses, and
permits issued by the appropriate state, federal, and foreign regulatory
agencies or bodies necessary to conduct the business now operated by it,
and it
has not received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization, or permit which, singly
or
in the aggregate, if the subject of an
12
unfavorable
decision, ruling, or finding, would
materially and adversely affect the ability of the Special Servicer to service
a
Mortgage Loan or the interests of the Certificateholders therein.
(v) No
Litigation or Adverse Conditions.
No
litigation is pending or, to the best of the Special Servicer's knowledge,
threatened against it, which, if determined adversely to the Special Servicer
would prohibit the Special Servicer from entering into this Agreement or,
in the
good faith and reasonable judgment of the Special Servicer, is likely to
materially and adversely affect either its ability to perform its obligations
hereunder or the financial condition of the Special Servicer. The Special
Servicer has no knowledge of any recent adverse financial condition or
event
with respect to itself that, in its good faith and reasonable judgment,
is
likely to materially and adversely affect its ability to perform its obligations
hereunder.
(vi) Fidelity
Bond; Errors and Omission Insurance.
Each
officer, director, employee, consultant and advisor of the Special Servicer
with
responsibilities concerning the servicing and administration
of the Mortgage Loans is covered by errors and omissions insurance and
fidelity
bond insurance in the amounts and with the coverage required under the
related
Pooling and Servicing Agreement to be maintained by the Company as master
servicer. Neither the Special Servicer nor any of its officers, directors,
employees, consultants, or advisors involved in the servicing or administration
of the Mortgage Loans has been refused such coverage or
insurance.
(vii) Approved
Seller/Servicer.
The
Special Servicer is a HUD approved mortgagee.
Section
4.04 Remedies
for Breach of Representation and Warranty.
Upon
discovery by any of the Company, the Class B Holder or the Special Servicer
of a
breach of any of the representations and warranties contained in Article
IV
which materially and adversely affects the value of the Specially Serviced
Mortgage Loans, or the ability of the Special Servicer to service any of
the
Specially Serviced Mortgage Loan, the party discovering such breach shall
give
prompt written notice to the others.
Each
of
the parties hereto shall indemnify the others and hold each of them harmless
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and other costs and expenses
resulting from any claim, demand, defense or assertion based on or grounded
upon, or resulting from, a breach of such party's representations and warranties
contained in Article IV. It is understood and agreed that except as provided
in
Sections 2.03, 5.15 and 5.16, the obligations to indemnify as provided in
this
Section 4.04 constitute the sole remedies of each of the Company, Class B
Holder
and Special Servicer respecting a breach of any other party's representations
and warranties.
ARTICLE
V
13
MISCELLANEOUS
PROVISIONS
Section
5.01 Indemnification.
Each
of
the Company, the Class B Holder and the Special Servicer (each as such,
an
Indemnifying
Party")
shall
indemnify the other parties hereto (each as such, an "Indemnified
Party")
and
hold them harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses (individually and
collectively, the "Claims") that such Indemnified Party may sustain in
any way
related to the failure of the Indemnifying Party to perform its duties
in
compliance with the terms of this Agreement; provided,
that
the Company and the Class B Holder acknowledge and agree that the obligation
of
the Special Servicer to indemnify for losses arising from or incurred in
connection with the servicing of Specially Serviced Mortgage Loans (including
REO Property) shall be
determined in accordance with the indemnification standards applicable
to the
Company, as Master Servicer under the related Pooling and Servicing Agreement;
and provided further,
that
none of the Company, the Class B Holder or the Special Servicer or any
of the
directors, officers, employees or agents of the Company, Class B Holder
or the
Servicer shall be liable for any action taken or for refraining from the
taking
of any action in good faith pursuant to this Agreement, or for errors in
judgment; it being understood that this provision shall not protect the
Company,
the Class B Holder or the Special Servicer against any material breach
of
warranties, representations or covenants made herein, or against any specific
liability imposed on such party pursuant hereto, or against any liability
which
would otherwise be imposed by reason of willful misfeasance, bad faith
or gross
negligence in the performance of duties or by reason of reckless disregard
of
obligations and duties hereunder.
Section
5.02 Pooling
and Servicing Agreements
Company
agrees to immediately provide Special Servicer a copy of the Pooling and
Servicing Agreements and the related Mortgage Loan Schedule as referenced
on
Schedule I.
Section
5.03 Amendment.
This
Agreement may be amended from time to time by written agreement signed by
each
of the parties hereto.
Section
5.04 Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts, each
of
which counterparts shall be deemed to be an original and such counterparts
shall
constitute but one and the same instrument.
Section
5.05 Governing
Law.
14
This
Agreement shall be construed in accordance with the laws of the State of
New
York and the obligations, rights and remedies of the parties hereunder
shall be
determined in accordance with such laws.
Section
5.06 Notices.
All
demands, notices and direction hereunder shall be in writing or by telecopy
and
shall be deemed effective upon receipt to:
(a) in
the
case of the Company,
CitiMortgage
Inc
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇’▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, MS 337
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
Facsimile:
636-261-1394
With
a
copy sent to
CitiMortgage,
Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇: N3B-355
▇▇▇▇▇▇
,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇▇, Compliance Manager, MSD
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished to the Class B Holder and the
Special Servicer in writing.
(b) in
the
case of the Class B Holder,
Credit-Based
Asset Servicing and Securitization LLC
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: B-Piece
Surveillance Department
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished to the Company in
writing.
(c) in
the
case of the Special Servicer,
▇▇▇▇▇▇
Loan Servicing LP
15
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Contract
Management
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished to the Company in
writing.
Section
5.07 Termination.
This
Agreement shall terminate (x) with respect to a Series, at such time as
the
Principal Balance of the Class B Certificates has been reduced to zero,
or if
later, the date as of which the Special Servicer is no longer servicing
any
Specially Serviced Mortgage Loans of the related Series, or (y) if mutually
agreed to by the parties hereto or (z) if Special Servicer elects to terminate
upon Company’s purchase of all of the Mortgage Loans in a Trust
Fund.
Section
5.08 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provi-sions or terms of this Agreement
shall be held invalid for any reason whatso-ever, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in
no way
affect the validity or enforceability of the other provisions of this Agreement.
If the invalidity of any part, provision, representation or warranty of this
Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate in good faith to
develop a structure the economic effect of which is nearly as possible the
same
as the economic effect of this Agreement without regard to such invalidity.
Section
5.09 Successors
and Assigns.
This
Agreement may not be assigned by any party hereto without the prior written
consent of each of the other parties hereto; provided, however, that the
Class B
Holder may assigns its rights hereunder without the prior written consent
of the
Company with respect to one or more Class B Certificates to a trust or other
entity (each, a "Trust”) in connection with a re-securitization or issuance of
collateralized bond obligation (each, a "Re-Securitization") of mortgage-backed
securities, including such Class B Certificates, by the Class B Holder (whether
directly or indirectly) if the Class B Holder is the administrative agent
or
collateral manager for the Trust, whose responsibilities include managing
the
collateral included in the Trust and/or exercising all of the Trust's rights
hereunder as Class B Holder of the assigned Class B Certificates. The Class
B
Holder shall provide written notice to the Company of any assignment of a
Class
B Certificate to a Trust, specifying the name of the Trust, the issuance
date
and the assigned Class B Certificates.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the respective successors and assigns of the parties hereto.
Section
5.10 Article
and Section Headings.
16
The
article and section headings herein are for convenience of reference only
and
shall not limit or otherwise affect the meaning hereof.
Section
5.11 Confidentiality.
(a)
In
connection with the rights and obligations of each of the parties hereunder,
each of the Company, the Class B Holder and the Special Servicer (for the
purposes of this Section 5.10(a), a “Disclosing Party”) may find it necessary to
disclose to the other parties (including its subsidiaries) or its
representatives (collectively, a “Receiving Party”) certain confidential,
non-public or proprietary information relating to the Disclosing Party
or its
affiliates. “Confidential Information” means any nonpublic information whatever
its nature or form, whether obtained orally, by observation, from written
materials or otherwise, from any third party or from the Disclosing Party
or its
directors, officers, employees, affiliates, representatives (including,
without
limitation, financial advisors, attorneys and accountants) or agents
(collectively, a party’s “Representatives;”) that is obtained by the Receiving
Party as a result of or in connection with the performance of any party’s rights
or obligations under this Agreement, whether before or after the date hereof,
together with all analyses, compilations, forecasts, studies or other documents
prepared by a Receiving Party or its Representatives in connection with
the
performance of any party’s rights or obligations hereunder which contain or
reflect any such information. Confidential Information includes, but is
not
limited to, any non-public information regarding any business or operations
plans, strategies, processes, know-how, portfolios, prospects or objectives
of
the Disclosing Party; structure, products, product development, technology,
inventions, discoveries, improvements, specifications, source codes, object
code, programming and other documentation, designs, methods, devices, systems,
computer software, including due diligence system, loss mitigation software
included within RADAR, foreclosure attorney web site, distribution, sales,
services, support and marketing plans, practices, or operations of the
Disclosing Party; the prices, costs and details of the services of the
Disclosing Party; the financial condition, results of operations, financial
records and related information of the Disclosing Party; the position of
the
Disclosing Party and its clients in any portfolio; the performance of any
accounts or assets of the Disclosing Party; research and development, operations
or plans of the Disclosing Party; clients and client lists (including,
without
limitation, the identity of clients, names, addresses, contact persons,
and the
client’s business or investment status or needs) of the Disclosing; information
received from third parties under confidential conditions; any trade secrets,
confidential or secret designs, processes, formulae, plans, devices or
material
(whether or not patented or patentable) directly or indirectly useful in
any
aspect of the business of the Disclosing Party (including, without limitation,
financial, investment and trading plans, designs, products and computer
aided
financial investment and trading systems, software, strategies, programs,
formulae, patterns, methods, techniques, processes and system analyses),
management organization and related information (including, without limitation,
data and other information concerning the compensation and benefits paid
to
officers, directors and employees of the Disclosing Party); personnel and
compensation policies; operation policies and manuals; means of gaining
access
to the Disclosing Party’s computer data systems and related information; or any
other non-public
17
financial,
commercial, business, technical or other
information relating to the Disclosing Party, its clients, subsidiaries or
affiliates. The term Confidential Information will not, however, include
Confidential Information which (i) is or becomes publicly available other
than
as a result of a disclosure by a Receiving Party or its Representatives in
violation of this Agreement, (ii) becomes available to a Receiving Party
on a
non-confidential basis after the date hereof from a source (other than a
Disclosing Party or its Representatives ), which, to the best knowledge of
a
Receiving Party after due inquiry, is not prohibited from disclosing such
information to the Receiving Party by any obligation of confidentiality to
another party hereto, or (iii) is developed or derived by a party hereto
without
the aid, application or use of Confidential Information. The parties acknowledge
that under Regulation AB, the Company may be required to file this Agreement
with the Securities and Exchange Commission, and that any such filing will
be
publicly available on the Commission’s ▇▇▇▇▇ website; accordingly, the contents
of this Agreement are not Confidential Information. Such filing shall be
within
the Company’s sole discretion.
(b)
Each
of the Class B Holder and the Special Servicer agrees that all information
supplied by or on behalf of the Company pursuant to Sections 2.02 or 3.01,
including individual account information, is the property of the Company
and
each such party agrees to use such information only for the purposes
contemplated by this Agreement and otherwise hold such information confidential
and not to disclose such information, except as contemplated hereby or to
the
extent such information is made publicly available by or on behalf of the
Company or the relevant Trustee. In addition, each of the parties acknowledge
that the Federal “Privacy of Consumer Financial Information” Regulation (16 CFR
313), as amended from time to time (the “Privacy Regulation”), issued pursuant
to Section 504 of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (15 U.S.C. 6801 et
seq.)
governs
disclosures of nonpublic personal information about consumers and the FTC
“Standards for Safeguarding Customer Information” Regulation (16 CFR 314), as
amended from time to time (the “Safeguard Regulation”), governs the safeguarding
of such information. Each of the Class B Holder and the Special Servicer
hereby
agrees that it shall comply with the terms and provisions of the Privacy
Regulation and the Safeguard Regulation, including, without limitation, the
provisions regarding the sharing and safeguarding of Nonpublic Personal
Information (as defined in the Privacy Regulation) in so far as such terms
and
provisions relate to Confidential Information.
Section
5.12 Publicly
Registered Certificates.
The
Class
B Holder agrees, that without the prior written consent of the Company, so
long
as the Class B Holder is a party to this Agreement and a holder of any Class
B
Certificates of a Series, no employee of the Class B Holder who has had access
to non-public information with respect to that Series will be involved in
the
investment decision process in connection with any purchase, sale or trade
of
any publicly registered Certificates of the same Series.
Section
5.13 No
Partnership.
18
Nothing
herein shall be deemed or construed to create a partnership or joint venture
between the parties hereto and the services of the Company shall be rendered
as
an independent contractor and not as an agent for the Company.
Section
5.14 Class
B Certificates Subject to Repurchase Arrangements.
The
Company hereby acknowledges that the Class B Holder is the beneficial owner
of
certain Class B Certificates which are subject to repurchase agreements
or other
financing arrangements with one or more counterparties (each a "Repo
Counterparty"), with such counterparties being the owner of record of such
Class
B Certificates (such Class B Certificates subject to a repurchase agreement
or
other financing arrangement, the "Repo
Class B Certificates").
With
respect to each Series of Repo Class B Certificates, upon the satisfaction
of
the conditions precedent set forth below, the definition of Class B Certificates
shall include, and the Special Servicing Agreement shall be effective with
respect to, each such Repo Class B Certificate.
This
Special Servicing Agreement shall become effective and be deemed effective
with
respect to each Series of Repo Class B Certificate as of the effective
date
described in
Section 2.02(e) hereof relating to the effective date of additional Class
B
Securities, provided the Company shall have received the Consent of Record
Owner, substantially in the form of Exhibit A attached hereto, relating
to such
Repo Class B Certificate executed by the applicable Repo Counterparty.
Section
5.15 Termination With Cause
Upon
Special Servicer’s failure to perform its obligations under this Agreement and
in accordance with industry standards, the Company may terminate, any rights
the
Class B Holder and Special Servicer may have hereunder, as provided in this
Section 5.15. Any such notice of termination shall be in writing and delivered
to the Class B Holder and Special Servicer by registered mail as provided
in
Section 5.06. Special Servicer shall have 90 days after receipt of such notice
to conform to industry standards. If Special Servicer fails to conform to
industry standards within 90 days after the date of the termination notice,
the
termination shall be final.
Section
5.16 Termination Without Cause
Notwithstanding
anything to the contrary in this Agreement, the Company may terminate, at
its
sole option on not less than 180 business days’ notice, any rights the Class B
Holder and Special Servicer may have hereunder, without cause as provided
in
this Section 5.16. Any such notice of termination shall be in writing and
delivered to the Class B Holder and Special Servicer by registered mail as
provided in Section 5.06.
Section
5.17 Regulation AB Reporting.
19
The
Special Servicer shall deliver to the Company or its designee all reports,
servicer compliance statements and attestations as required pursuant to
the
terms of Regulation AB upon its effectiveness for Certificates issued on
or
after January 1, 2006.
20
IN
WITNESS WHEREOF, each of the parties hereto have caused its name to be signed
hereto by its respective officer thereunto duly authorized, all as of the
day
and year first above written.
CITIMORTGAGE,
INC.
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Title: Vice
President
CREDIT-BASED
ASSET SERVICING AND
SECURITIZATION
LLC
|
By:
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
|
Title: Vice
President
▇▇▇▇▇▇
LOAN SERVICING LP
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Title: Senior
Vice President
21
SCHEDULE
I
Describe
each Series of Class B Certificates and the related Pooling and Servicing
Agreement
Series Pooling
and Servicing Agreement Percentage
of Class Owned by Class B Holder
Exhibit
A
CONSENT
OF RECORD HOLDER
[Insert
Date]
[Company]
[Address]
Attn:
Credit-Based
Servicing and Securitization LLC
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
General Counsel
|
Re:
|
[Insert
Description of Class B Certificate] (the "Repo Class B Certificate")
and
the Special Servicing Agreement dated as of _____________, by and
among
[Company], Credit-Based Asset Servicing and Securitization LLC
and
▇▇▇▇▇▇
Loan Servicing LP (such agreement, as amended to date, the
"Agreement")
|
Ladies
and Gentlemen:
The
undersigned, [Insert Name of Repo Counterparty] ("Repo Counterparty"), is
the
record owner of the Repo Class B Certificate pursuant to a repurchase agreement
or other financing arrangement with Credit-Based Asset Servicing and
Securitization LLC ("C-BASS"). As such, C-BASS is the beneficial owner of
such
Repo Class B Certificate, and unless and until the Repo Counterparty indicates
otherwise in writing delivered to [Company], the Repo Counterparty hereby
authorizes C-BASS to take any and all action C-BASS deems necessary, desirable
or appropriate and permitted to be taken by the record owner of the Repo
Class B
Certificate under the Agreement, and to otherwise assume all rights and
obligations of the record owner of the Repo Class B Certificate for all purposes
under the Agreement.
Capitalized
terms used herein but not herein defined shall have the respective meaning
ascribed to such term in the Agreement.
[Insert
Name of Repo Counterparty]
|
By:
|
|
|
Name:
|
|
Title:
[Company]
By:
Name:
Title:
Exhibit
B
Operational
Requirements
|
1.)
|
Report
Date/Report Requirement.
Special Servicer Report Date to the Company or Trustee, as required
by the
applicable Pooling and Servicing Agreement “PSA”, shall be on or before
the 5th
calendar day of the related reporting month. The Special Servicer
shall
report to the Company as master servicer, as required by the applicable
PSA, on loans that are on the Special Servicer’s system as of the calendar
month end prior to such Report Date. Reports from Special Servicer
to
Company shall be in a complete data file and in a format acceptable
to
Company that the Company can use to meet the PSA reporting requirements
and shall be transmitted electronically to one recipient to be
designated
by the Company. Hard copy reports will also be provided. The reports
will
contain, as a minimum, the information reflected on Exhibit C.
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2.)
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Remittance
Date.
The Special Servicer Remittance Date to the Company shall be on
or before
the 18th
calendar day of the related reporting month, or if the 18th
is
not a Business Day, the Business Day immediately preceding such
18th
day.
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3.)
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Loan
Transfer/Prior Month Report to Trust.
The Company shall provide the Special Servicer a copy of the previous
month’s report to trustee. The Company will provide this information
on
its website at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
on
each Distribution Date.
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:
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4.)
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Servicing
Fee.
The Special Servicer shall net its servicing fee on all collections
remitted to the Company.
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5.)
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Loan
Transfer Wire and Advance Reconciliation.
Within 5 business days of the Special Servicer’s receipt of the computer
records required pursuant to Section 2.02, the Special Servicer
shall
remit to the Company as servicer, by wire transfer of immediately
available funds, an amount equal to the sum of the Delinquency
Advances
outstanding as of the Transfer Date, and the aggregate amount of
Servicing
Advances and Escrow Advances, net of any Positive Escrows. The
Special
Servicer and Company shall, within 15 business days following the
transfer
date, make such further monetary adjustments between them as shall
be
necessary to ensure the proper payment of the Advance Amount by
the
Special Servicer to the Company as servicer.
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6.)
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Servicer
Release Wire and Advance Reconciliation.
Within 5 business days of the Successor Servicer’s receipt of the computer
records required pursuant to Section 2.02, the Successor Servicer
shall
remit to the Special Servicer, by wire transfer of immediately
available
funds, an amount equal to the sum of the Delinquency Advances outstanding
as of the Transfer Date, and the aggregate amount of Servicing
Advances
and Escrow Advances, net of any Positive Escrows. The Servicer
and Special
Servicer shall, within 15 business days following the transfer
date, make
such further monetary adjustments between them as shall be necessary
to
ensure the proper payment of the Advance Amount
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by
the Servicer to the Special Servicer.
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7.)
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Servicing
Advance Reconciliation.
The Company shall provide the Special Servicer customary documentation
(electronic format or invoice with amount, type, and reason for
advance)
on all such Servicing Advances as described in #5 above. The Special
Servicer shall then reimburse any such reimbursable advances to
the
Company within five (5) business days of the Company’s presentation of
such supporting documentation to the Special Servicer ;provided
that, the
Special Servicer shall not reimburse Company for items such as
demand
letter fees, interest on advances, and any other similar
fees.
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8.)
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Life
of Loan Tax Contract.
The Company agrees to transfer life of loan tax contracts to the
Special
Servicer, provided that the tax service contracts are transferred
to the
Special Servicer at no cost. For mortgage loans without tax service
contracts, the Special Servicer may deduct from its remittance
to the
Company $50.00 per mortgage loan to purchase such tax service
contracts.
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9.)
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Flood
Certificates.
The Company agrees to transfer flood certificates to the Special
Servicer,
provided that the flood certificates are transferred to the Special
Servicer at no cost. For mortgage loans without a flood certificate,
the
Special Servicer may deduct from its remittance to the Company
$50.00 per
mortgage loan to purchase such flood certificate.
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Exhibit
C
ARTICLE
I. Default Management Reports
1.1
Monthly
Reports
Each
month on or before the fifth (5th)
business day of the month, the Special Servicer shall provide to the Company
for
all Specially Serviced Mortgage Loans a status report which accurately reflects
the default stage of the loan. The Special Servicer shall provide the reports
listed below either in the form cited or in a format satisfactory to the
Company.
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1)
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Delinquency
Status Report (Exhibit 1)
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2)
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Foreclosure
Notification (Exhibit 2)
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3)
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Foreclosure
Status Report (Exhibit 3)
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4)
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Bankruptcy
Status Report (Exhibit 4)
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5)
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Real
Estate Owned Status Report (Exhibit
5)
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If
there
has not been an activity during the month regarding any of the Specially
Serviced Mortgage Loans, then such reports are not required, with the exception
of the Delinquency Status Report which must be submitted monthly whether
or not
there has been activity. If there has not been any activity, please state
that
fact.
Reports
are to be forwarded to the following address or via fax:
Citigroup,
Inc
Master
Servicing Division
Attn:
Default Management
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇: N3B-355
▇▇▇▇▇▇
,
▇▇ ▇▇▇▇▇
Fax:
469/220/1575
Upon
request by the Company, the Special Servicer shall furnish any additional
information in its possession requested by the Company that is reasonably
necessary to protect the interests of the Company (including special reports
or
information not required by the terms of this Agreement or customarily reported
by a Servicer).
1.2
Liquidation
Reports
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Company pursuant to a deed-in-lieu, of foreclosure, the Special Servicer
shall
send to the Company within twenty-four (24) hours of such sale or acquisition,
a
Notice of Acquisition (NOA) in the form of
Exhibit
6. The Special Servicer shall file all appropriate claims and supporting
documents and information to collect all available Insurance Proceeds with
respect to the Mortgage Loan and Mortgaged Property.
1.3
Fees
for
Late, Inaccurate, or Poor Quality Reporting
The
Special Servicer shall pay to the Company a penalty fee for late submission
of
reports, or inaccurate reporting. Penalties will be assessed as (i) $100.00
for
the first occurrence with a maximum penalty of $1,000.00 in the aggregate,
or
(ii) $250.00 for the second occurrence with a maximum penalty of $1,000.00
in
the aggregate, or (iii) $500.00 for any occurrence thereafter, with a maximum
penalty of $1,000.00 in the aggregate . The Special Servicer shall also pay
to
the Company a penalty fee for the submission of poor quality reports (such
as
the failure of the Special Servicer to send status reports or the failure
to use
Company’s Mortgage Loan numbers). The penalty for poor quality reports shall be
calculated in accordance within (i), (ii), and (iii) above. The parties agree
that this penalty schedule represents a reasonable estimate of the costs
incurred by the Company for late, inaccurate or poor quality
reports.