SIDE LETTER TO THE
MORTGAGE ORIGINATION AND MANAGEMENT AGREEMENT
May 17, 2006
Members Equity Bank Pty Limited
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Ladies and Gentlemen:
We refer to the Mortgage Origination and Management Agreement, dated
July 4, 1994, as amended from time to time (the "MOMA") between you as Mortgage
Manager, ME Portfolio Management Limited, as manager (the "Trust Manager") and
Perpetual Limited, as trustee (the "Trustee"). Capitalised terms used herein and
not otherwise defined are used with the meanings given to them in the MOMA.
ARTICLE I
DEFINITIONS AND INTERPRETATION
Clause 1.01 Definitions
Commission means the United States Securities and Exchange Commission.
Company Information has the meaning set forth in clause 2.07(a).
Exchange Act means the U.S. Securities Exchange Act of 1934, as
amended.
Regulation AB means 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 means 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 Loans directly or indirectly to an
issuing entity in connection with an issuance of mortgage-backed securities
registered with the Commission or (2) an issuance of mortgage-backed securities
registered with the Commission 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 Loans.
Servicer has the meaning set forth in clause 2.03(c).
Servicing Criteria means the "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
Static Pool Information means static pool information as described in
Item 1105(a)(1)-(3) and 1105(c) of Regulation AB.
Subcontractor: Any vendor, subcontractor or other entity that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Loans but performs one
or more discrete functions identified in Item 1122(d) of Regulation AB with
respect to Loans under the direction or authority of the Company or a
Subservicer.
Subservicer: Any entity that services Loans on behalf of the Company or
any Subservicer and is responsible for the performance (whether directly or
through Subservicers or Subcontractors) of a substantial portion of the material
servicing functions required to be performed by the Company under this letter
agreement that are identified in Item 1122(d) of Regulation AB.
ARTICLE II
COMPLIANCE WITH REGULATION AB
Clause 2.01 Intent of the Parties; Reasonableness.
The Mortgage Manager and the Trust Manager acknowledge and agree that
the purpose of Article II of this letter agreement is to facilitate compliance
by the Mortgage Manager with the provisions of Regulation AB and related rules
and regulations of the Commission.
The Trust Manager 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 Mortgage Manager 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 Trust Manager 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 Mortgage Manager shall cooperate fully with the Trust Manager
to deliver to the Trust Manager (including any of its assignees or designees),
any and all statements, reports, certifications, records and any other
information necessary in the good faith determination of the Trust Manager to
permit the Trust Manager to comply with the provisions of Regulation AB,
together with such disclosures relating to the Mortgage Manager, any Subservicer
and the Loans, or the servicing of the Loans, reasonably believed by the Trust
Manager to be necessary in order to effect such compliance.
The Trust Manager (including any of its assignees or designees) shall
cooperate with the Mortgage Manager by providing timely notice of requests for
information under these provisions and by reasonably limiting such requests to
information required, in the Trust Manager's reasonable judgment, to comply with
Regulation AB.
Clause 2.02 Additional Representations and Warranties of the Mortgage
Manager.
(a) The Mortgage Manager shall be deemed to represent to the Trust
Manager as of the date on which information is first provided to the Trust
Manager under clause 2.03 that, except as disclosed in writing to the Trust
Manager prior to such date: (i) the Mortgage Manager 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 Mortgager; (ii) the Mortgage Manager 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 Mortgage Manager as servicer has been disclosed or reported by the Mortgage
Manager; (iv) no material changes to the Mortgage Manager's policies or
procedures with respect to the servicing function it will perform under this
letter agreement for mortgage loans of a type similar to the Loans have occurred
during the three-year period immediately preceding the related Securitization
Transaction; (v) there are no aspects of the Mortgage Manager's financial
condition that could have a material adverse effect on the performance by the
Mortgage Manager of its servicing obligations under this letter agreement; (vi)
there are no material legal or governmental proceedings pending (or known to be
contemplated) against the Mortgage Manager or any Subservicer; and (vii) there
are no affiliations, relationships or transactions relating to the Mortgage
Manager or any Subservicer with respect to any Securitization Transaction and
any party thereto identified by the Trust Manager of a type described in Item
1119 of Regulation AB.
(b) If so requested by the Trust Manager on any date following the
date on which information is first provided to the Trust Manager under clause
2.03, the Mortgage Manager 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 clause 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.
Clause 2.03 Information to Be Provided by the Mortgage Manager.
In connection with any Securitization Transaction the Mortgage Manager
shall (i) within five Business Days following request by the Trust Manager,
provide to the Trust Manager (or, as applicable, cause each Subservicer to
provide), in writing and in form and substance reasonably satisfactory to the
Trust Manager, the information and materials specified in paragraphs (a), (b),
(c) and (f) of this clause, and (ii) as promptly as practicable following notice
to or discovery by the Mortgage Manager, provide to the Trust Manager (in
writing and in form and substance reasonably satisfactory to the Trust Manager)
the information specified in paragraph (d) of this clause.
(a) If so requested by the Trust Manager, the Mortgage Manager
shall provide such information regarding (i) the Mortgage Manager, as originator
of the Loans and (ii) 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 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 Trust Manager, to an analysis of the
performance of the Loans, including the originators' credit-granting or
underwriting criteria for mortgage loans of similar type(s) as the Loans
and such other information as the Trust Manager 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 Mortgage
Manager and each Subservicer; and
(D) a description of any affiliation or relationship between
the Mortgage Manager, each Subservicer and any of the following parties to
a Securitization Transaction, as such parties are identified to the
Mortgage Manager by the Trust Manager 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 Trust Manager, the Mortgage Manager
shall provide Static Pool Information with respect to the mortgage loans (of a
similar type as the Loans, as reasonably identified by the Trust Manager as
provided below) originated by the Mortgage Manager, if the Mortgage Manager is
an originator of Loans. Such Static Pool Information shall be prepared by the
Mortgage Manager 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 Mortgage Manager Static Pool Information
with respect to more than one mortgage loan type, the Trust Manager 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 Mortgage Manager, and need not be
customized for the Trust Manager. Such Static Pool Information for each 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 Trust Manager.
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 Mortgage Manager shall provide corrected Static
Pool Information to the Trust Manager in the same format in which Static Pool
Information was previously provided to such party by the Mortgage Manager.
If so requested by the Trust Manager, the Mortgage Manager shall
provide, at the expense of the requesting party (to the extent of any additional
incremental expense associated with delivery pursuant to this letter agreement),
such agreed-upon procedures letters of certified public accountants reasonably
acceptable to the Trust Manager, 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 Mortgage Manager's originations or purchases, to calendar months commencing
January 1, 2006, as the Trust Manager shall reasonably request. Such letters
shall be addressed to and be for the benefit of such parties as the Trust
Manager 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 Trust Manager.
(c) If so requested by the Trust Manager, the Mortgage Manager
shall provide such information regarding the Mortgage Manager, as servicer of
the Loans, and each Subservicer (each of the Mortgage Manager and each
Subservicer, for purposes of this paragraph, a "Servicer"), as is requested for
the purpose of compliance with Item 1108 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 letter agreement; information
regarding the size, composition and growth of the Servicer's portfolio of
residential mortgage loans of a type similar to the Loans and information
on factors related to the Servicer that may be material, in the good faith
judgment of the Trust Manager, to any analysis of the servicing of the
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 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 Trust Manager 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 letter agreement for mortgage
loans of a type similar to the 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 Mortgage Manager of its servicing obligations
under this letter agreement;
(E) information regarding advances made by the Servicer on the
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) If so requested by the Trust Manager for the purpose of
satisfying its reporting obligation under the Exchange Act with respect to any
class of asset-backed securities, the Mortgage Manager shall (or shall cause
each Subservicer to) (i) notify the Trust Manager in writing of (A) any material
litigation or governmental proceedings pending against the Mortgage Manager or
any Subservicer; and (B) any affiliations or relationships that develop
following the closing date of a Securitization Transaction between the Mortgage
Manager or any Subservicer and any of the parties specified in clause (D) of
paragraph (a) of this clause (and any other parties identified in writing by the
requesting party) with respect to such Securitization Transaction; and (ii)
provide to the Trust Manager a description of such proceedings, affiliations or
relationships.
(e) As a condition to the succession to the Mortgage Manager or
any Subservicer as servicer or subservicer under this letter agreement by any
entity (i) into which the Mortgage Manager or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Mortgage
Manager or any Subservicer, the Mortgage Manager shall provide to the Trust
Manager, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Trust Manager of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Trust Manager, all information reasonably
requested by the Trust Manager 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 Mortgage Manager, as
servicer, is obligated to provide pursuant to other provisions of this letter
agreement, if so requested by the Trust Manager, the Mortgage Manager shall
provide such information regarding the performance or servicing of the Mortgage
Loans as is reasonably required to facilitate preparation of distribution
reports in accordance with Item 1121 of Regulation AB. Such information shall be
provided concurrently with the monthly reports otherwise required to be
delivered by the servicer under this letter agreement, commencing with the first
such report due not less than ten Business Days following such request.
Clause 2.04 Servicer Compliance Statement.
On or before September 1 of each calendar year, commencing in 2006, the
Mortgage Manager shall deliver to the Trust Manager a statement of compliance
addressed to the Trust Manager and signed by an authorized officer of the
Mortgage Manager, to the effect that (i) a review of the Mortgage Manager's
activities during the immediately preceding calendar year (or applicable portion
thereof) and of its performance under this letter 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 Mortgage Manager has fulfilled
all of its obligations under this letter 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.
Clause 2.05 Report on Assessment of Compliance and Attestation.
(a) On or before September 1 of each calendar year, commencing in
2006, the Mortgage Manager shall:
(i) deliver to the Trust Manager a report (in form and
substance reasonably satisfactory to the Trust Manager) regarding the
Mortgage Manager'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 Trust Manager and
signed by an authorized officer of the Mortgage Manager, and shall
address each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit B hereto delivered to the Trust
Manager concurrently with the execution of this letter agreement;
(ii) deliver to the Trust Manager a report of a
registered public accounting firm reasonably acceptable to the Trust
Manager that attests to, and reports on, the assessment of compliance
made by the Mortgage Manager 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 Mortgage Manager pursuant to clause 2.06(b) to be
"participating in the servicing function" within the meaning of Item
1122 of Regulation AB, to deliver to the Trust Manager an assessment
of compliance and accountants' attestation as and when provided in
paragraphs (a) and (b) of this clause; and
(iv) if requested by the Trust Manager not later than
August 1 of the calendar year in which such certification is to be
delivered, deliver to the Trust Manager and any other entity that will
be responsible for signing the certification (a "▇▇▇▇▇▇▇▇-▇▇▇▇▇
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 in the form attached hereto
as Exhibit A.
The Mortgage Manager acknowledges that the parties identified in clause
(a)(iv) above may rely on the certification provided by the Mortgage Manager
pursuant to such clause in signing a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ certification and filing
such with the Commission. The Trust Manager will not request delivery of a
certification under clause (a)(iv) above unless the Trust Manager 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 clause 2.05(a)(i) shall address each of the Servicing Criteria
specified on a certification substantially in the form of Exhibit B hereto
delivered to the Trust Manager concurrently with the execution of this letter
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 clause 2.05(a)(iii) need not address any elements of
the Servicing Criteria other than those specified by the Mortgage Manager
pursuant to clause 2.06.
Clause 2.06 Use of Subservicers and Subcontractors.
The Mortgage Manager shall not hire or otherwise utilize the services
of any Subservicer to fulfill any of the obligations of the Mortgage Manager as
servicer under this letter agreement unless the Mortgage Manager complies with
the provisions of paragraph (a) of this clause. The Mortgage Manager 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 Mortgage Manager as
servicer under this letter agreement unless the Mortgage Manager complies with
the provisions of paragraph (b) of this clause. It shall not be necessary for
the Mortgage Manager to seek the consent of the Trust Manager to the utilization
of any Subservicer or any Subcontractor.
(a) The Mortgage Manager shall cause any Subservicer used by the
Mortgage Manager (or by any Subservicer) for the benefit of the Trust Manager to
comply with the provisions of this clause and with clauses 2.02, 2.03(c) and
(e), 2.04, 2.05 and 2.07 of this letter agreement to the same extent as if such
Subservicer were the Mortgage Manager, and to provide the information required
with respect to such Subservicer under clause 2.03(d) of this letter agreement.
The Mortgage Manager shall be responsible for obtaining from each Subservicer
and delivering to the Trust Manager any servicer compliance statement required
to be delivered by such Subservicer under clause 2.04, any assessment of
compliance and attestation required to be delivered by such Subservicer under
clause 2.05 and any certification required to be delivered to the entity that
will be responsible for signing the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification under clause
2.05 as and when required to be delivered.
(b) The Mortgage Manager shall promptly upon request provide to
the Trust Manager (or any designee of the Trust Manager, such as a master
servicer or administrator) a written description (in form and substance
satisfactory to the Trust Manager) of the role and function of each
Subcontractor utilized by the Mortgage Manager 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 Mortgage Manager shall cause any such Subcontractor used by
the Mortgage Manager (or by any Subservicer) for the benefit of the Trust
Manager to comply with the provisions of clauses 2.05 and 2.07 of this letter
agreement to the same extent as if such Subcontractor were the Mortgage Manager.
The Mortgage Manager shall be responsible for obtaining from each Subcontractor
and delivering to the Trust Manager any assessment of compliance and attestation
required to be delivered by such Subcontractor under clause 2.05, in each case
as and when required to be delivered.
Clause 2.07 Indemnification; Remedies.
(a) The Mortgage Manager shall indemnify the Trust Manager, each
affiliate of the Trust Manager, and each of the following parties participating
in a Securitization Transaction: each sponsor and issuing entity; each entity
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
entity who controls any of such parties or the Trust Manager (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 and agents of each
of the foregoing and of the Trust Manager, and shall hold each of them harmless
from and against any 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,
accountants' letter or other material provided in written or
electronic form under this Article II by or on behalf of the Mortgage
Manager, or provided under this Article II by or on behalf of any
Subservicer or Subcontractor (collectively, the "Company
Information"), or (B) the omission or alleged omission to state in the
Company Information a material fact required to be stated in the
Company Information or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, by way of clarification, that clause (B) of
this paragraph shall be construed solely by reference to the Company
Information and not to any other information communicated in
connection with a sale or purchase of securities, without regard to
whether the Company Information or any portion thereof is presented
together with or separately from such other information;
(ii) any failure by the Mortgage Manager, any Subservicer
or any Subcontractor to deliver any information, report,
certification, accountants' letter or other material when and as
required under this Article II, including any failure by the Mortgage
Manager to identify pursuant to clause 2.06(b) any Subcontractor
"participating in the servicing function" within the meaning of Item
1122 of Regulation AB; or
(iii) any breach by the Mortgage Manager of a
representation or warranty set forth in clause 2.02(a) or in a writing
furnished pursuant to clause 2.02(b) and made as of a date prior to
the closing date of the related Securitization Transaction, to the
extent that such breach is not cured by such closing date, or any
breach by the Mortgage Manager of a representation or warranty in a
writing furnished pursuant to clause 2.02(b) to the extent made as of
a date subsequent to such closing date.
In the case of any failure of performance described in clause (a)(ii)
of this clause, the Mortgage Manager shall promptly reimburse the Trust Manager,
and each entity 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 Mortgage Manager, any
Subservicer or any Subcontractor.
(b) (i) Any failure by the Mortgage Manager, any Subservicer or
any Subcontractor to deliver any information, report, certification,
accountants' letter or other material when and as required under this Article
II, or any breach by the Mortgage Manager of a representation or warranty set
forth in clause 2.02(a) or in a writing furnished pursuant to clause 2.02(b) and
made as of a date prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by such closing date,
or any breach by the Mortgage Manager of a representation or warranty in a
writing furnished pursuant to clause 2.02(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 Mortgage Manager under this
letter agreement, and shall entitle the Trust Manager, in its sole discretion to
terminate the rights and obligations of the Mortgage Manager as servicer under
this letter agreement without payment (notwithstanding anything in this letter
agreement to the contrary) of any compensation to the Mortgage Manager; provided
that to the extent that any provision of this letter agreement expressly
provides for the survival of certain rights or obligations following termination
of the Mortgage Manager as servicer, such provision shall be given effect.
(ii) Any failure by the Mortgage Manager, any Subservicer
or any Subcontractor to deliver any information, report, certification
or accountants' letter when and as required under clause 2.04 or 2.05,
including (except as provided below) any failure by the Mortgage
Manager to identify pursuant to clause 2.06(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 Mortgage Manager under this
letter agreement, and shall entitle the Trust Manager, in its sole
discretion to terminate the rights and obligations of the Mortgage
Manager as servicer under this letter agreement without payment
(notwithstanding anything in this letter agreement to the contrary) of
any compensation to the Mortgage Manager; provided that to the extent
that any provision of this letter agreement expressly provides for the
survival of certain rights or obligations following termination of the
Mortgage Manager as servicer, such provision shall be given effect.
The Trust Manager shall not be entitled to terminate the rights and
obligations of the Mortgage Manager pursuant to this subparagraph (b)(ii) if a
failure of the Mortgage Manager 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 Mortgage Manager shall promptly reimburse the
Trust Manager (or any designee of the Trust Manager, such as a master
servicer), for all reasonable expenses incurred by the Trust Manager
(or such designee), as such are incurred, in connection with the
termination of the Mortgage Manager 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 Trust
Manager may have under other provisions of this letter agreement or
otherwise, whether in equity or at law, such as an action for damages,
specific performance or injunctive relief.
This letter agreement may not be amended, and no waiver hereunder will
be effective, unless made in a writing signed by authorized representatives of
you and us. This side letter may be executed by each of the parties hereto in
any number of counterparts, each of which counterpart, when so executed and
delivered, shall be deemed to be an original and all such counterparts shall
together constitute one and the same agreement.
This letter agreement shall be governed by and construed in accordance
with the laws of the State of New South Wales.
If you are in agreement with the foregoing, please so indicate by
signing the attached copy of this letter in the space indicated below and
returning it to us, whereupon a legally binding agreement will exist between us
with regard to the subject matter hereof.
Very truly yours,
ME PORTFOLIO MANAGEMENT LIMITED
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Director)
Title: Manager - Financial Markets
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Manager - Capital Markets
Acknowledged and Agreed:
MEMBERS EQUITY BANK PTY LIMITED
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Manager - Financial Markets
EXHIBIT A
FORM OF ANNUAL CERTIFICATION
Re: Side Letter to the Mortgage Origination and Management Agreement
I, _____________________________, the _______________________ of [NAME
OF COMPANY], certify to the Trust Manager, and its 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 Item 1122(b) of Regulation AB (the "Attestation
Report"), and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to the Trust Manager pursuant
to the Side Letter to the Mortgage Origination and Management Agreement
(collectively, the "Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been provided to
the Trust Manager;
(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 Side
Letter to the Mortgage Origination and Management Agreement in all material
respects; and
(5) The Compliance Statement required to be delivered by the Company
pursuant to the Side Letter to the Mortgage Origination and Management
Agreement, and the Servicing Assessment and Attestation Report required to be
provided by the Company and by any Subservicer or Subcontractor pursuant to the
Side Letter to the Mortgage Origination and Management Agreement, have been
provided to the Trust Manager. Any material instances of noncompliance described
in such reports have been disclosed to the Trust Manager. Any material instance
of noncompliance with the Servicing Criteria has been disclosed in such reports.
Date:
------------------------------
By:
------------------------------
Name:
---------------------
Title:
---------------------
EXHIBIT B
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Mortgage
Manager] [Name of Subservicer] shall address, at a minimum, the criteria
identified as below as "Applicable Servicing Criteria":
------------------------------------------------------------------------------------------ ----------------------
APPLICABLE SERVICING
SERVICING CRITERIA 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.
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain
a back-up servicer for the mortgage loans are maintained.
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized
personnel.
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
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
1122(d)(2)(iv) agreements.
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such
other number of
1122(d)(3)(iii) days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or
custodial bank
1122(d)(3)(iv) statements.
-------------------- --------------------------------------------------------------------- ----------------------
Pool Asset Administration
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related mortgage
loan documents.
-------------------- --------------------------------------------------------------------- ----------------------
Mortgage loan and related documents are safeguarded as required by
1122(d)(4)(ii) the transaction agreements
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
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).
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
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.
-------------------- --------------------------------------------------------------------- ----------------------
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
1122(d)(4)(xiii) agreements.
-------------------- --------------------------------------------------------------------- ----------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB,
is maintained
1122(d)(4)(xv) as set forth in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
-------------------- --------------------------------------------------------------------- ----------------------
[NAME OF COMPANY] [NAME OF SUBSERVICER]
Date:
-----------------------------------
By:
Name:
--------------------------------------
Title:
-----------------------------------