AMENDMENT NUMBER ONE Mortgage Loan Flow Purchase, Sale & Servicing Agreement dated as of February 24, 2005 by and between PHH MORTGAGE CORPORATION AND BISHOP’S GATE RESIDENTIAL MORTGAGE TRUST (FORMERLY KNOWN AS CENDANT RESIDENTIAL MORTGAGE TRUST) and...
AMENDMENT
NUMBER ONE
Mortgage
Loan Flow Purchase, Sale & Servicing Agreement
dated
as
of February 24, 2005
by
and
between
PHH
MORTGAGE CORPORATION AND ▇▇▇▇▇▇’▇ GATE RESIDENTIAL MORTGAGE TRUST (FORMERLY
KNOWN AS CENDANT RESIDENTIAL MORTGAGE TRUST)
and
CITIGROUP
GLOBAL MARKETS REALTY CORP.
This
AMENDMENT NUMBER ONE is made this 15th day of February, 2006, by and
between
PHH
MORTGAGE CORPORATION
having
an address at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the “Seller”
or the “Servicer”), ▇▇▇▇▇▇’▇
GATE RESIDENTIAL MORTGAGE TRUST (FORMERLY KNOWN AS CENDANT RESIDENTIAL MORTGAGE
TRUST)
(the
“Trust”, together with the Seller, the “Sellers”) and CITIGROUP GLOBAL MARKETS
REALTY CORP. having an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇
(the “Purchaser”), to the Mortgage Loan Flow Purchase, Sale & Servicing
Agreement, dated as of February 24, 2005, by and between the Purchaser and
the
Sellers (the “Agreement”).
RECITALS
WHEREAS,
the Purchaser and the Sellers desire to amend the Agreement, subject to the
terms hereof, to modify the Agreement as specified herein; and
WHEREAS,
the Purchaser and the Sellers 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 February 15, 2006, the Agreement is hereby amended as
follows:
(a) Section
1.01 of the Agreement is hereby amended by adding the following
definitions:
Commission:
The
United States Securities and Exchange Commission.
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.
Reconstitution:
Any
Securitization Transaction or Whole Loan Transfer.
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.
Seller/Servicer
Information:
As
defined in Section 13.07(a).
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 functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Seller or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Seller 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 Seller under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Subservicing
Agreement:
The
written contract between the Seller and a Subservicer relating to servicing
and
administration of certain Mortgage Loans as provided in Section
5.19.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Seller.
(b) The
Agreement is hereby amended by replacing the words “Pass-Through Transfer” each
time they appear in the Agreement with the words “Securitization
Transaction”.
(c) Section
10.01 of the Agreement is hereby amended by adding the word “or” and the
following after clause (8):
(9) the
Seller fails to deliver any information, report, certification, accountants’
letter or other material when and as required under Article XIII, including
any
failure by the Seller to identify pursuant to Subsection 13.06(b) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB;
(d) The
Agreement is hereby modified by inserting the following Article XIII immediately
following Article XII:
ARTICLE
XIII. COMPLIANCE
WITH REGULATION AB
| Subsection 13.01. |
Intent
of the Parties; Reasonableness.
|
The
Purchaser and the Seller 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
Seller acknowledges that investors in privately offered securities may require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private
offerings.
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Seller acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with requests made by the Purchaser, any master servicer or
any
Depositor in good faith for delivery of information under these provisions
on
the basis of evolving interpretations of Regulation AB. In connection with
any
Securitization Transaction, the Seller shall cooperate fully with the Purchaser
and any master servicer to deliver to the Purchaser (including any of its
assignees or designees), any master servicer and any Depositor, any and all
statements, reports, certifications, records and any other information necessary
in the good faith determination of the Purchaser, the master servicer or any
Depositor to permit the Purchaser, such master servicer or such Depositor to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Seller, 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
Seller 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.
| Subsection 13.02. |
Additional
Representations and Warranties of the Seller.
|
(a) The
Seller shall be deemed to represent to the Purchaser, to any master servicer
and
to any Depositor, as of the date on which information is first provided to
the
Purchaser, any master servicer or any Depositor under Subsection 13.03 that,
except as disclosed in writing to the Purchaser, such master servicer or such
Depositor prior to such date: (i) the Seller 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 Seller; (ii) the Seller 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 Seller as servicer
has been disclosed or reported by the Seller; (iv) no material changes to the
Seller’s policies or procedures with respect to the servicing function it will
perform under this Agreement and any Reconstitution Agreement for mortgage loans
of a type similar to the Mortgage Loans have occurred during the three-year
period immediately preceding the related Securitization Transaction; (v) there
are no aspects of the Seller’s financial condition that could have a material
adverse effect on the performance by the Seller 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 Seller, any Subservicer or any Third-Party Originator; and (vii) there
are
no affiliations, relationships or transactions relating to the Seller, any
Subservicer or any Third-Party Originator with respect to any Securitization
Transaction and any party thereto identified by the related Depositor of a
type
described in Item 1119 of Regulation AB.
(b) If
so
requested by the Purchaser, any master servicer or any Depositor on any date
following the date on which information is first provided to the Purchaser,
any
master servicer or any Depositor under Subsection 13.03, the Seller shall,
within five Business Days following such request, confirm in writing the
accuracy of the representations and warranties set forth in paragraph (a) of
this 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.
| Subsection 13.03. |
Information
to Be Provided by the Seller.
|
In
connection with any Securitization Transaction the Seller shall (i) within
five
Business Days following request by the Purchaser, any master servicer or any
Depositor, provide to the Purchaser and such Depositor (or, as applicable,
cause
each Third-Party Originator and each Subservicer to provide), in writing and
in
form and substance reasonably satisfactory to the Purchaser and such Depositor,
the information and materials specified in paragraphs (a), (b), (c) and (g)
of
this Section, and (ii) as promptly as practicable following notice to or
discovery by the Seller, provide to the Purchaser and any Depositor (in writing
and in form and substance reasonably satisfactory to the Purchaser and such
Depositor) the information specified in paragraph (d) of this
Section.
(a) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding (i) the Seller, 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. Such information shall include, at a
minimum:
(A) the
originator’s form of organization;
(B) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
or
any Depositor, to an analysis of the performance of the Mortgage Loans,
including the originators’ credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other information as
the
Purchaser or any Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
(C) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against the Seller, each Third-Party Originator and each
Subservicer; and
(D) a
description of any affiliation or relationship between the Seller, each
Third-Party Originator, each Subservicer and any of the following parties to
a
Securitization Transaction, as such parties are identified to the Seller by
the
Purchaser or any Depositor in writing in advance of such Securitization
Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
(b) If
so
requested by the Purchaser or any Depositor, the Seller 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 Seller, if the Seller 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 Seller (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 Seller
(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 Seller, 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 reasonably required by the Purchaser or the Depositor,
as
applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Seller 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
Seller.
If
so
requested by the Purchaser or any Depositor, the Seller shall provide (or,
as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such 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 Seller’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 letters shall be addressed to and be for the benefit of such
parties as the Purchaser or such Depositor shall designate, which may include,
by way of example, any Sponsor, any Depositor and any broker dealer acting
as
underwriter, placement agent or initial purchaser with respect to a
Securitization Transaction. Any such statement or letter may take the form
of a
standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(c) If
so
requested by the Purchaser or any Depositor, the Seller shall provide such
information regarding the Seller, as servicer of the Mortgage Loans, and each
Subservicer (each of the Seller and each Subservicer, for purposes of this
paragraph, a “Servicer”), as is requested for the purpose of compliance with
Items 1108, 1117 and 1119 of Regulation AB. Such information shall include,
at a
minimum:
(A) the
Servicer’s form of organization;
(B) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under 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 good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
(1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
(2)
the
extent of outsourcing the Servicer utilizes;
(3)
whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(4)
whether the Servicer has been terminated as servicer in a residential mortgage
loan securitization, either due to a servicing default or to application of
a
servicing performance test or trigger; and
(5)
such
other information as the Purchaser or any Depositor may reasonably request
for
the purpose of compliance with Item 1108(b)(2) of Regulation AB;
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under 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 an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Seller
of its servicing obligations under this Agreement or any Reconstitution
Agreement;
(E) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(F) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(G) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(H) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience.
(d) For
the
purpose of satisfying the reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Seller shall (or shall
cause each Subservicer and Third-Party Originator to) (i) provide prompt notice
to the Purchaser, any master servicer and any Depositor in writing of (A) any
material litigation or governmental proceedings involving the Seller, any
Subservicer or any Third-Party Originator, (B) any affiliations or relationships
that develop following the closing date of a Securitization Transaction between
the Seller, any Subservicer or any Third-Party Originator and any of the parties
specified in clause (D) of paragraph (a) of this Subsection (and any other
parties identified in writing by the requesting party) with respect to such
Securitization Transaction, (C) any Event of Default under the terms of this
Agreement or any Reconstitution Agreement, (D) any merger, consolidation or
sale
of substantially all of the assets of the Seller, and (E) the Seller’s entry
into an agreement with a Subservicer or Subcontractor to perform or assist
in
the performance of any of the Seller’s obligations under this Agreement or any
Reconstitution Agreement and (ii) provide to the Purchaser and any Depositor
a
description of such proceedings, affiliations or relationships.
(e) As
a
condition to the succession to the Seller or any Subservicer as servicer or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Seller or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Seller or any Subservicer,
the
Seller shall provide to the Purchaser and any Depositor, at least 15 calendar
days prior to the effective date of such succession or appointment, (x) written
notice to the Purchaser and any Depositor of such succession or appointment
and
(y) in writing and in form and substance reasonably satisfactory to the
Purchaser and such Depositor, all information reasonably requested by the
Purchaser or any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(f) In
addition to such information as the Seller, 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 Seller or any Subservicer, the Seller or such Subservicer,
as
applicable, shall provide to the party responsible for filing such report
(including, if applicable, any master servicer) notice of the occurrence of
any
of the following events along with all information, data, and materials related
thereto as may be required to be included in the related distribution report
on
Form 10-D (as specified in the provisions of Regulation AB referenced
below):
(i) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation AB);
(ii) material
breaches of pool asset representations or warranties or transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(iii) information
regarding new asset-backed securities issuances backed by the same pool assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation
AB).
(g) The
Seller shall provide to the Purchaser, any master servicer 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 Seller or any Subservicer or the Seller or such Subservicer’s performance
hereunder.
| Subsection 13.04. |
Servicer
Compliance Statement.
|
On
or
before March 1 of each calendar year, commencing in 2007, the Seller shall
deliver to the Purchaser, any master servicer and any Depositor a statement
of
compliance addressed to the Purchaser, such master servicer and such Depositor
and signed by an authorized officer of the Seller, to the effect that (i) a
review of the Seller’s activities 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 Seller 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.
| Subsection 13.05. |
Report
on Assessment of Compliance and Attestation.
|
(a) On
or
before March 1 of each calendar year, commencing in 2007, the Seller
shall:
(i) deliver
to the Purchaser, any master servicer and any Depositor a report (in form and
substance reasonably satisfactory to the Purchaser, such master servicer and
such Depositor) regarding the Seller’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 Seller, and shall
address each of the applicable Servicing Criteria specified on Exhibit
14
hereto;
(ii) deliver
to the Purchaser, any master servicer and any Depositor a report of a registered
public accounting firm reasonably acceptable to the Purchaser, such master
servicer and such Depositor that attests to, and reports on, the assessment
of
compliance made by the Seller 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 Seller pursuant
to
Subsection 13.06(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Purchaser, any master
servicer and any Depositor an assessment of compliance and accountants’
attestation as and when provided in paragraphs (a) and (b) of this Subsection;
and
(iv) if
requested by the Purchaser, any master servicer 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 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ 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 Seller, in the form attached hereto as Exhibit
12.
The
Seller acknowledges that the parties identified in clause (a)(iv) above may
rely
on the certification provided by the Seller pursuant to such clause in signing
a
Sarbanes Certification and filing such with the Commission. Neither the
Purchaser nor any Depositor will request delivery of a certification under
clause (a)(iv) above unless a Depositor is required under the Exchange Act
to
file an annual report on Form 10-K with respect to an issuing entity whose
asset
pool includes Mortgage Loans.
(b) Each
assessment of compliance provided by a Subservicer pursuant to Subsection
13.05(a)(i) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit
13
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 Subsection 13.05(a)(iii) need not address any elements
of the Servicing Criteria other than those specified by the Seller pursuant
to
Subsection 13.06.
| Subsection 13.06. |
Use
of Subservicers and Subcontractors.
|
The
Seller shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Seller as servicer under this Agreement
or
any Reconstitution Agreement unless the Seller complies with the provisions
of
paragraph (a) of this Subsection. The Seller 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 Seller as servicer under this Agreement or any Reconstitution
Agreement unless the Seller complies with the provisions of paragraph (b) of
this Subsection.
(a) It
shall
not be necessary for the Seller to seek the consent of the Purchaser, any master
servicer or any Depositor to the utilization of any Subservicer. The Seller
shall cause any Subservicer used by the Seller (or by any Subservicer) for
the
benefit of the Purchaser and any Depositor to comply with the provisions of
this
Subsection and with Subsections 13.02, 13.03(c), (e), (f) and (g), 13.04, 13.05
and 13.07 of this Agreement to the same extent as if such Subservicer were
the
Seller, and to provide the information required with respect to such Subservicer
under Subsection 13.03(d) of this Agreement. The Seller 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 Subsection 13.04, any assessment of compliance and attestation
required to be delivered by such Subservicer under Subsection 13.05 and any
certification required to be delivered to the Person that will be responsible
for signing the Sarbanes Certification under Subsection 13.05 as and when
required to be delivered.
(b) It
shall
not be necessary for the Seller to seek the consent of the Purchaser, any master
servicer or any Depositor to the utilization of any Subcontractor. The Seller
shall promptly upon request provide to the Purchaser, any master servicer and
any Depositor (or any designee of the Depositor, such as an administrator)
a
written description (in form and substance satisfactory to the Purchaser, such
master servicer and such Depositor) of the role and function of each
Subcontractor utilized by the Seller 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 Seller shall cause any such Subcontractor used by the Seller
(or by any Subservicer) for the benefit of the Purchaser and any Depositor
to
comply with the provisions of Subsections 13.05 and 13.07 of this Agreement
to
the same extent as if such Subcontractor were the Seller. The Seller 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 Subsection 13.05, in each
case as and when required to be delivered.
| Subsection 13.07. |
Indemnification;
Remedies.
|
(a) The
Seller 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 Seller, or
provided under Article XIII by or on behalf of any Subservicer, Subcontractor
or
Third-Party Originator (collectively, the “Seller/Servicer Information”), or (B)
the omission or alleged omission to state in the Seller/Servicer Information
a
material fact required to be stated in the Seller/Servicer Information or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, by way
of
clarification, that clause (B) of this paragraph shall be construed solely
by
reference to the Seller/Servicer Information and not to any other information
communicated in connection with a sale or purchase of securities, without regard
to whether the Seller/Servicer Information or any portion thereof is presented
together with or separately from such other information; or
(ii) any
breach by the Seller of its obligations under this Article XIII, any failure
by
the Seller, 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 Seller to identify pursuant to Subsection 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 Seller of a representation or warranty set forth in Subsection
13.02(a) or in a writing furnished pursuant to Subsection 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 Seller of a representation or warranty in a writing furnished pursuant
to
Subsection 13.02(b) to the extent made as of a date subsequent to such closing
date; or
(iv) the
negligence, bad faith, or willful misconduct of the Seller in connection with
its performance under this Article XIII.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Seller 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 Seller on the other.
In
the
case of any failure of performance described in clause (a)(ii) of this
Subsection, the Seller 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 Seller, 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 Seller, 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
breach by the Seller of a representation or warranty set forth in Subsection
13.02(a) or in a writing furnished pursuant to Subsection 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 Seller of a representation or warranty in a writing furnished pursuant
to
Subsection 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 Seller 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 Seller as servicer under this Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding anything
in
this Agreement or any applicable Reconstitution Agreement to the contrary)
of
any compensation to the Seller; 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 Seller as servicer, such provision shall be given effect.
(ii) Any
failure by the Seller, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Subsection 13.04 or 13.05, including (except as provided below) any
failure by the Seller to identify pursuant to Subsection 13.06(b) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB, which continues unremedied for ten calendar days
after the date on which such information, report, certification or accountants’
letter was required to be delivered shall constitute an Event of Default with
respect to the Seller 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 Seller 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 Seller; 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 Seller 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 Seller pursuant to this subparagraph (b)(ii) if a failure
of
the Seller 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
Seller 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 Seller 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.
(e) Article
V
of the Agreement is hereby amended by adding the following Sections immediately
after Section 5.18:
Section
5.19 Subservicing
Agreements Between the Seller and Subservicers.
The
Seller, as servicer, may arrange for the subservicing of any Mortgage Loan
by a
Subservicer pursuant to a Subservicing Agreement; provided that such
subservicing arrangement and the terms of the related Subservicing Agreement
must provide for the servicing of such Mortgage Loans in a manner consistent
with the servicing arrangements contemplated hereunder. Each Subservicer shall
be (i) authorized to transact business in the state or states where the related
Mortgaged Properties it is to service are situated, if and to the extent
required by applicable law to enable the Subservicer to perform its obligations
hereunder and under the Subservicing Agreement and (ii) a ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇
Mae approved mortgage servicer. Notwithstanding the provisions of any
Subservicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Seller or a Subservicer or reference
to
actions taken through the Seller or otherwise, the Seller shall remain obligated
and liable to the Purchaser and its successors and assigns for the servicing
and
administration of the Mortgage Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from
the
Subservicer and to the same extent and under the same terms and conditions
as if
the Seller alone were servicing and administering the Mortgage Loans. Every
Subservicing Agreement entered into by the Seller shall contain a provision
giving the successor servicer the option to terminate such agreement in the
event a successor servicer is appointed. All actions of each Subservicer
performed pursuant to the related Subservicing Agreement shall be performed
as
an agent of the Seller with the same force and effect as if performed directly
by the Seller.
For
purposes of this Agreement, the Seller shall be deemed to have received any
collections, recoveries or payments with respect to the Mortgage Loans that
are
received by a Subservicer regardless of whether such payments are remitted
by
the Subservicer to the Seller.
Section
5.20 Successor
Subservicers.
Any
Subservicing Agreement shall provide that the Seller shall be entitled to
terminate any Subservicing Agreement and to either itself directly service
the
related Mortgage Loans or enter into a Subservicing Agreement with a successor
Subservicer which qualifies under Section 5.19. Any Subservicing Agreement
shall
include the provision that such agreement may be immediately terminated by
any
successor to the Seller without fee, in accordance with the terms of this
Agreement, in the event that the Seller (or any successor to the Seller) shall,
for any reason, no longer be the servicer of the related Mortgage Loans
(including termination due to an Event of Default).
Section
5.21 No
Contractual Relationship Between Subservicer and Purchaser.
Any
Subservicing Agreement and any other transactions or services relating to the
Mortgage Loans involving a Subservicer shall be deemed to be between the
Subservicer and the Seller alone and the Purchaser shall not be deemed a party
thereto and shall have no claims, rights, obligations, duties or liabilities
with respect to any Subservicer except as set forth in Section
5.19.
Section
5.22 Assumption
or Termination of Subservicing Agreement by Successor Servicer.
In
connection with the assumption of the responsibilities, duties and liabilities
and of the authority, power and rights of the Seller hereunder by a successor
servicer pursuant to Section 12.01 of this Agreement, it is understood and
agreed that the Seller’s rights and obligations under any Subservicing Agreement
then in force between the Seller and a Subservicer shall be assumed
simultaneously by such successor servicer without act or deed on the part of
such successor servicer; provided, however, that any successor servicer may
terminate the Subservicer.
The
Seller shall, upon the reasonable request of the Purchaser, but at its own
expense, deliver to the assuming party documents and records relating to each
Subservicing Agreement and an accounting of amounts collected and held by it
and
otherwise use its best efforts to effect the orderly and efficient transfer
of
the Subservicing Agreements to the assuming party.
(f) The
Agreement is hereby amended by adding Attachment
A
hereto
as Exhibit
12
to the
Agreement.
(g) The
Agreement is hereby amended by adding Attachment
B
hereto
as Exhibit
13
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.
PHH
MORTGAGE CORPORATION
(Seller)
By:/s/
[Authorized Signatory]_______
Name:_________________________
Title:__________________________
▇▇▇▇▇▇’▇
GATE RESIDENTIAL MORTGAGE TRUST (formerly
known
as CENDANT RESIDENTIAL MORTGAGE TRUST)
(Trust)
By: PHH
Mortgage Corporation, as Administrator
By:
/s/
[Authorized Signatory]______
Name:_________________________
Title:__________________________
CITIGROUP
GLOBAL MARKETS REALTY CORP.
(Purchaser)
By:
/s/
[Authorized Signatory]______
Name:_________________________
Title:__________________________
ATTACHMENT
A
EXHIBIT
12
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
Mortgage Loan Flow Purchase, Sale & Servicing Agreement dated as of
February 24, 2005 (the “Agreement”), among Citigroup
Global Markets Realty Corp., PHH Mortgage Corporation and ▇▇▇▇▇▇’▇ Gate
Residential Mortgage Trust (formerly known as Cendant Residential
Mortgage
Trust)
|
I,
_____________________________________, the _______________________ of PHH
MORTGAGE CORPORATION (the “Company”) and, in such capacity, the officer in
charge of the Company’s responsibility on Exhibit 13 to the Agreement. I hereby
certify to [the Purchaser], [the Depositor], and the [Master Servicer]
[Securities Administrator] [Trustee], and their officers, with the knowledge
and
intent that they will rely upon this certification, that:
| 1. |
I
have reviewed the servicer compliance statement of the Company provided
in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”),
the report on assessment of the Company’s compliance with the servicing
criteria set forth in Item 1122(d) of Regulation AB (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 other data, servicing reports,
officer’s certificates and other information relating to the performance
of the Company under the terms of the Agreement and the servicing of
the
Mortgage Loans by the Company 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 reports and information comprising the Company
Servicing Information, taken as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to
make the statements made, in the light of the circumstances under which
such statements were made, not misleading as of the period covered
by, or
the date of such reports or information or the date of this
certification;
|
| 3. |
Based
on my knowledge, all of the Company Servicing Information required
to be
provided by the Company under the Agreement has been provided to the
[Depositor] [Master Servicer] [Securities Administrator]
[Trustee];
|
| 4. |
I
am responsible for reviewing the activities performed by the Company
as
servicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as
disclosed in the Compliance Statement, the Servicing Assessment or
the
Attestation Report, the Company has fulfilled its obligations under
the
Agreement in all material respects; and
|
| 5. |
The
Compliance Statement required to be delivered by the Company pursuant
to
the 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 13 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.”)
|
|
Date:
_________________________
|
|
|
By: _______________________________
|
|
|
Name:
|
|
|
Title:
|
ATTACHMENT
B
EXHIBIT
13
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
|
||
|
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.
|
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 are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
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
|
X
|
|
|
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:__________________________________________