FIRST AMENDMENT TO AMENDED AND RESTATED FLOW SERVICING AGREEMENT
EXHIBIT
99.2
FIRST
AMENDMENT TO
AMENDED
AND RESTATED FLOW SERVICING AGREEMENT
THIS
FIRST
AMENDMENT TO AMENDED AND RESTATED FLOW SERVICING AGREEMENT (“First
Amendment”) dated as of August 1, 2006, by and between Citigroup
Global Markets Realty Corp. (“Owner”) and ▇▇▇▇▇ Fargo Bank, N.A.
(“Servicer”).
WHEREAS,
the Owner and the Servicer have entered into an Amended and Restated Flow
Servicing Agreement dated
as
of March 1, 2006, as amended (the “Agreement”), which prescribes the manner of
servicing and control of certain Mortgage Loans owned by the Owner and serviced
by the Servicer;
WHEREAS,
the Owner and the Servicer wish to amend provisions of the Agreement as provided
herein; and
WHEREAS,
capitalized terms not otherwise defined herein shall have the meanings set
forth
in the Agreement.
NOW
THEREFORE, in consideration of the mutual premises set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Owner and the Servicer agree as follows:
1.
Section
4.01 (Servicer to Act as Servicer) of the Agreement is hereby amended
by:
a. inserting
the phrase “, other than Servicing Advances,” immediately after the words “any
future advances”, in the first sentence of the second paragraph;
and
b. inserting
the phrase “, reduce or increase the outstanding principal balance” immediately
after the phrase “forgive the payment of principal”, in the second sentence of
the second paragraph;
and
c. replacing
the word “The” at the beginning of the third sentence of the second paragraph
with “the” and inserting the phrase “In the event that no default exists or is
imminent,” prior to the words “the Servicer shall request”.
2.
Section
4.02 (Liquidation of Mortgage Loans) of the Agreement is hereby amended
by:
a.
deleting
the second
and third sentences of the first paragraph of such Section and replacing
them
with the following:
In
the event that any payment due under any Mortgage Loan is not postponed pursuant
to Section 4.01 and remains delinquent for a period of ninety (90) days or
any
other default continues for a period of ninety (90) days beyond the expiration
of any grace or cure period, the Servicer shall commence foreclosure
proceedings;
and
b. inserting
the following sentence at the end of the first paragraph:“
In
addition, if the Servicer reasonably believes that Liquidation Proceeds
with respect to any such Mortgage Loan would not exceed by an appreciable amount
the costs and expenses of a foreclosure action, such Mortgage Loan will be
charged-off and will become a liquidated loan. Once a Mortgage Loan has
been charged off (a “Charged Off Loan”), the Servicer shall discontinue making
Monthly Advances, and shall not be entitled to any additional servicing
compensation. Prior to charging off any Mortgage Loan, the Servicer shall follow
the procedures described below.
In
connection with the foregoing, prior to charging off any Mortgage Loan, the
Servicer shall submit to the Purchaser a request for a charge off of the related
Mortgage Loan, which request shall include a financial analysis justifying
such
charge off (as opposed to pursuing a foreclosure action). Such analysis must
include the documentation supporting the property value used in such
determination. In addition, the request shall be submitted to the Purchaser
or
its designee in writing in the month prior to the month in which the Servicer
is
requesting the related charge off. The Purchaser or its designee shall respond
to such charge off request within ten (10) Business Days following the
submission of such request; provided that the Servicer shall not proceed with
any such charge off in the event the Purchaser or its designee fails to respond
within such ten (10) Business Day period. Once
a
Mortgage Loan is charged off, the Servicer shall notify the Purchaser or its
designee in the report delivered pursuant to Section 5.02 of this
Agreement.
The
Servicer will not be entitled to any Servicing Fees or reimbursement of expenses
in connection with any Charged Off Loans except to the extent of funds available
from the aggregate amount of recoveries on such Charged Off Loan which may
be
paid to the Servicer in respect of any accrued and unpaid Servicing Fees. The
Servicer will only be entitled to previously accrued Servicing Fees on any
such
Charged Off Loans and will not be entitled to receive any future unaccrued
Servicing Fees or expenses from collections on such Charged Off Loans. Any
recoveries on such Charged Off Loans (net of any such previously accrued and
unpaid Servicing Fees) will be treated as Liquidation Proceeds distributable
to
the Purchaser.
The
Purchaser may designate any servicer to service any such Charged Off Loan and
may sell any such Charged Off Loan to a third party. Notwithstanding the
foregoing, the procedures described above relating to the treatment of Charged
Off Loans may be modified at any time at the discretion of the Purchaser, with
the reasonable consent of Servicer.
3. Section
4.04 (Establishment of and Deposits to Custodial Account) of the Agreement
is
amended by deleting the reference to “one (1) Business Day” in the second
paragraph thereof and replacing it with “two (2) Business Days”.
4. Section
4.06 (Establishment of and Deposits to Escrow Account) of the Agreement is
amended by deleting the reference to “one (1) Business Day” in the second
paragraph thereof and replacing it with “two (2) Business Days”.
5. Section
5.02 (Statements to the Owner) of the Agreement is deleted in its entirety
and
replaced with the following:
“With
respect to the Owned Mortgage Loans and the Purchased Mortgage Loans that have
the Principal Prepayment Period set forth in clause (B) of such definition,
not
later than the tenth (10th)
calendar day of each month, the Servicer shall furnish to the Owner a monthly
remittance advice, with a trial balance report attached thereto, as to the
remittance period ending on the last day of the preceding month. With respect
to
the Purchased Mortgage Loans that have the Principal Prepayment Period set
forth
in clause (A) of such definition not later than the tenth (10th)
calendar day of each month, the Servicer shall furnish to the Owner a
preliminary monthly remittance advice, with a trial balance report attached
thereto, as to the remittance period ending on the last day of the preceding
month and a final monthly remittance advice, with a trial balance report
attached thereto, as to the remittance period ending on the last day of the
preceding month two (2) Business Days following the end of the Principal
Prepayment Period.”
6. Section
6.02 (Satisfaction of Mortgages and Release of Retained Mortgage Files) of
the
Agreement is amended by:
a. deleting
the first sentence of the second paragraph in its entirety and replace it with
the following:
“With
respect to each Owned Mortgage Loan, if the Servicer satisfies or releases
the
lien of a Mortgage without first having obtained payment in full of the
indebtedness secured by the Mortgage (other than as a result of a modification
of the Mortgage pursuant to this Agreement or a liquidation of the Mortgaged
Property pursuant to the terms of this Agreement) or should the Servicer
otherwise prejudice any rights the Owner may have under the mortgage
instruments, upon written demand of the Owner, the Servicer shall repurchase
the
related Mortgage Loan at the Repurchase Price by deposit thereof in the
Custodial Account within two (2) Business Days of receipt of such demand by
the
Owner.”
b. deleting
the first sentence of the third paragraph in its entirety and replace it with
the following:
"With
respect to each Purchased Mortgage Loan, if the Servicer satisfies or releases
the lien of a Mortgage without first having obtained payment in full of the
indebtedness secured by the Mortgage (other than as a result of a modification
of the Mortgage pursuant to this Agreement or a liquidation of the Mortgaged
Property pursuant to the terms of this Agreement) or should the Servicer
otherwise prejudice any rights the Owner may have under the mortgage
instruments, upon written demand of the Owner, the Servicer shall deposit in
the
Custodial Account the entire outstanding principal balance, plus all accrued
interest on such Mortgage Loan, on the day preceding the Remittance Date in
the
month following the date of such release.”
7. Section
6.05 (Annual
Independent Public Accountant’s Servicing Report)
of the
Agreement is deleted in its entirety and replace with the
following:
“[RESERVED]”
8. Section
6.06 (Report on Assessment of Compliance and Attestation) of the Agreement
is
amended by replacing the subclause (a) with the following:
“(a) On
or
before March 1 of each calendar year, commencing in 2007, the Servicer
shall:”
9. Except
as
modified by this First Amendment, all terms, conditions, representations and
warranties of the Agreement and any previously executed amendments or related
agreements shall remain in full force and effect. If any term or condition
of
this First Amendment is in conflict with any term or condition of the Agreement,
the terms of this First Amendment shall control.
10. This
First Amendment may be executed simultaneously in any number of counterparts.
Each counterpart shall be deemed to be an original, and all such counterparts
shall constitute one and the same instrument.
[Signatures
Follow]
IN
WITNESS WHEREOF, the Servicer and the Owner have caused their names to be signed
to the First Amendment by their respective officers, duly authorized as of
the
day and year first above written.
|
CITIGROUP GLOBAL MARKETS
REALTY CORP.
|
▇▇▇▇▇ FARGO BANK, N.A. | |
| Owner | Servicer |
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ | Name: | ▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Authorized Agent | Title: | Assistant Vice President |