Exhibit 10.2(E)
EXECUTION VERSION
REGULATION AB COMPLIANCE ADDENDUM
TO FLOW SALE AND SERVICING AGREEMENT
This Regulation AB Compliance Addendum (this "Reg AB Addendum"), dated as
of January 1, 2006, by and between Bank of America, National Association (the
"Purchaser") and SunTrust Mortgage, Inc. (the "Company"), to that certain Flow
Sale and Servicing Agreement, dated as of February 1, 2004, by and between the
Company and the Purchaser (as amended, modified or supplemented, the
"Agreement").
WITNESSETH
WHEREAS, the Company and the Purchaser have agreed to adopt an addendum to
the Agreement to reflect the intention of the parties to comply with Regulation
AB.
NOW, THEREFORE, in consideration of the mutual promises and mutual
obligations set forth herein, the Company and the Purchaser hereby agree as
follows:
ARTICLE I
DEFINED TERMS
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Agreement. The following terms shall have the
meanings set forth below, unless the context clearly indicates otherwise:
Commission: The United States Securities and Exchange Commission.
Company Information: As defined in Section 2.07(a).
Depositor: With respect to any Securitization Transaction, the person
identified in writing to the Company by the Purchaser as the depositor for such
transaction.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Master Servicer: With respect to any Securitization Transaction, the
"master servicer," if any, identified in the related transaction documents.
Qualified Correspondent: Any Person from which the Company purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Company and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Company, in accordance with underwriting
guidelines designated by the Company ("Designated Guidelines") or guidelines
that do not vary materially from such Designated Guidelines; (ii) such Mortgage
Loans were in fact underwritten as described in clause (i) above and were
acquired by the Company within 180 days after origination; (iii) either (x) the
Designated Guidelines were, at the time such Mortgage Loans were originated,
used by the Company in origination of mortgage loans of the same type as the
Mortgage Loans for the Company's own account or (y) the Designated Guidelines
were, at the time such Mortgage Loans were underwritten, designated by
the Company on a consistent basis for use by lenders in originating mortgage
loans to be purchased by the Company; and (iv) the Company employed, at the time
such Mortgage Loans were acquired by the Company, pre-purchase or post-purchase
quality assurance procedures (which may involve, among other things, review of a
sample of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by the
Company.
Reconstitution: Any Securitization Transaction or Whole Loan Transfer.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. SS.SS.229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a sale or
other transfer of some or all of the Mortgage Loans directly or indirectly to an
issuing entity in connection with an issuance of publicly offered or privately
placed, rated or unrated mortgage-backed securities or (2) an issuance of
publicly offered or privately placed, rated or unrated securities, the payments
on which are determined primarily by reference to one or more portfolios of
residential mortgage loans consisting, in whole or in part, of some or all of
the Mortgage Loans.
Servicer: As defined in Section 2.03(c).
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time, for which the Company
is responsible in its capacity as servicer within the meaning of Regulation AB
and as identified on Exhibit B hereto.
Static Pool Information: Static pool information as described in Item
1l05(a)(l)-(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 l122( d) of
Regulation AB with respect to Mortgage Loans under the direction or authority of
the Company or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of the
Company or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions identified in Item 1122(d) of Regulation AB
that are required to be performed by the Company under this Agreement or any
Reconstitution Agreement.
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Third-Party Originator: Each Person, other than a Qualified Correspondent,
that originated Mortgage Loans acquired by the Company.
Whole Loan Transfer: Any sale or transfer of some or all of the Mortgage
Loans, other than a Securitization Transaction.
ARTICLE II
COMPLIANCE WITH REGULATION AB
Section 2.01. Intent of the Parties; Reasonableness.
The Purchaser and the Company acknowledge and agree that the purpose of
Article II of this Reg AB Addendum is to facilitate compliance by the Purchaser
and any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission and that the provisions of this Reg AB Addendum
shall be applicable to all Mortgage Loans included in a Securitization
Transaction closing on or after January 1, 2006, regardless whether the Mortgage
Loans were purchased by the Purchaser from the Company prior to the date hereof.
Although Regulation AB is applicable by its terms only to offerings of
asset-backed securities that are registered under the Securities Act, the
Company acknowledges that investors in privately offered securities may require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. 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 Company acknowledges that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with reasonable 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, subject to the limitations of Item 1105(f) of Regulation AB, as
applicable. In connection with any Securitization Transaction, the Company 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,
subject to the limitations of Item 1105(f) of Regulation AB, as applicable,
together with such disclosures relating to the Company, any Subservicer, any
Third-Party Originator and the Mortgage Loans, or the servicing of the Mortgage
Loans, reasonably believed by the Purchaser or any Depositor to be necessary in
order to effect such compliance.
The Purchaser (including any of its assignees or designees) shall
cooperate with the Company by providing timely notice of requests for
information under these provisions and by
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reasonably limiting such requests to information required, in the Purchaser's
reasonable judgment, to comply with Regulation AB.
Section 2.02. Additional Representations and Warranties of the Company.
(a) The Company hereby represents 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 Section
2.03 that, except as disclosed in writing to the Purchaser, such Master Servicer
or such Depositor prior to such date: (i) the Company is not aware and has not
received notice that any default, early amortization or other performance
triggering event has occurred as to any other securitization due to any act or
failure to act of the Company; (ii) the Company has not been terminated as
servicer in a residential mortgage loan securitization, either due to a
servicing default or to application of a servicing performance test or trigger;
(iii) no material noncompliance with the applicable Servicing Criteria with
respect to other securitizations of residential mortgage loans involving the
Company as servicer has been disclosed or reported by the Company; (iv) no
material changes to the Company's policies or procedures with respect to the
servicing function it will perform under this Agreement and any Reconstitution
Agreement for mortgage loans of a type similar to the Mortgage Loans have
occurred during the three-year period immediately preceding the related
Securitization Transaction; (v) there are no aspects of the Company's financial
condition that are reasonably expected to have a material adverse effect on the
performance by the Company of its servicing obligations under this Agreement or
any Reconstitution Agreement; (vi) there are no material legal or governmental
proceedings pending (or known to be contemplated) against the Company, any
Subservicer or any Third-Party Originator; and (vii) there are no affiliations,
relationships or transactions relating to the Company, any Subservicer or any
Third-Party Originator with respect to any Securitization Transaction and any
party thereto identified in writing to the Company 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 Section 2.03, the
Company 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.
Section 2.03. Information to Be Provided by the Company.
In connection with any Securitization Transaction, the Company shall (i)
use its reasonable best efforts to provide within five Business Days, but in no
event later than ten Business Days, following request by the Purchaser or any
Depositor 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), (f) and (g) of
this Section, and (ii) as promptly as practicable following notice to or
discovery by the Company, provide to the Purchaser and any Depositor (in writing
and in form and substance reasonably
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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 Company shall
provide such information regarding (i) the Company, as originator of the
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (ii) each Third-Party Originator, and (iii) as applicable,
each Subservicer, as is reasonably requested for the purpose of compliance with
Items 1103(a)(l), 1105, 1110, 1117 and 1119 of Regulation AB. Such information
shall include, if applicable:
(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 Company,
each Third-Party Originator and each Subservicer; and
(D) a description of any affiliation or relationship between the
Company, each Third-Party Originator, each Subservicer and any of the
following parties to a Securitization Transaction, as such parties are
identified to the Company by the Purchaser or any Depositor in writing in
advance of such Securitization Transaction:
(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 Company
shall provide (or, as applicable, cause each Third-Party Originator to provide)
information reasonably requested by the Purchaser or Depositor regarding
historical delinquency, loss and prepayment experience (and cut-off date Static
Pool Information for pools provided by the Company subject to a Securitization)
in respect of mortgage loans for which the Company is the named servicer or
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subservicer (of a similar type as the Mortgage Loans, as reasonably identified
by the Purchaser as provided below) originated by (i) the Company, if the
Company is an originator of Mortgage Loans (including as an acquirer of Mortgage
Loans from a Qualified Correspondent), and/or (ii) each Third-Party Originator
to the extent reasonably requested by the Purchaser or Depositor to prepare
Static Pool Information; provided, that the information to be provided by the
Company shall be in such format as the Company maintains such data (such format
being attached hereto as Exhibit C) and the Company shall not be obligated to
customize such format for use by the Purchaser or Depositor. To the extent that
there is reasonably available to the Company (or Third-Party Originator)
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
information may be in the form customarily provided by the Company, and need not
be customized for the Purchaser or any Depositor. Such 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
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 the
information provided pursuant to the immediately preceding paragraph (including
an omission to include therein information required to be provided pursuant to
such paragraph), the Company shall provide corrected information to the
Purchaser or any Depositor, as applicable, in the same format in which
information was previously provided to such party by the Company.
If so requested by the Purchaser or any Depositor, the Company shall
provide (or, as applicable, cause each Third-Party Originator to provide), at
the expense of the requesting party (to the extent of any additional incremental
expense associated with delivery pursuant to this Agreement), such statements
and agreed-upon procedures letters of certified public accountants reasonably
acceptable to the Purchaser or Depositor, as applicable, pertaining to Static
Pool Information relating to prior securitized pools for securitizations closed
on or after January 1, 2006 or, in the case of Static Pool Information with
respect to the Company's or Third-Party Originator's originations or purchases,
to calendar months commencing January 1, 2006, as the Purchaser or such
Depositor shall reasonably request. Such statements and letters shall be
addressed to and be for the benefit of such parties as the Purchaser or such
Depositor shall designate, which may include, by way of example, any Sponsor,
any Depositor and any broker dealer acting as underwriter, placement agent or
initial purchaser with respect to a Securitization Transaction. Any such
statement or letter may take the form of a standard, generally applicable
document accompanied by a reliance letter authorizing reliance by the addressees
designated by the Purchaser or such Depositor.
(c) If so requested by the Purchaser or any Depositor, the Company
shall provide such information regarding the Company, as servicer of the
Mortgage Loans, and each Subservicer (each of the Company and each Subservicer,
for purposes of this paragraph, a
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"Servicer"), as is reasonably requested for the purpose of compliance with Items
1108, 1117 and 1119 of Regulation AB. Such information shall include, if
applicable:
(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 the 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, to
the Company's knowledge, 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 the 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 Company of its servicing obligations
under the Agreement or any Reconstitution Agreement;
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(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;
(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; and
(I) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against the Servicer;
and
(J) a description of any affiliation or relationship between the
Servicer and any of the following parties to a Securitization Transaction,
as such parties are identified to the Servicer by the Purchaser or any
Depositor in writing in advance of such Securitization Transaction:
(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.
(d) The Company 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 Company, any Subservicer or any Third-Party
Originator, (B) any affiliations or relationships that develop following the
closing date of a Securitization Transaction between the Company, any
Subservicer or any Third-Party Originator and any of the parties specified in
clause (D) of paragraph (a) of this Section (and any other parties identified in
writing by the requesting party)
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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 Company, and (E)
the Company's entry into an agreement with a Subservicer to perform or assist in
the performance of any of the Company'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 Company or any Subservicer
as servicer or subservicer under the Agreement or any Reconstitution Agreement
by any Person (i) into which the Company or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Company or
any Subservicer, the Company shall provide to the Purchaser, any Master
Servicer, 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 Company, as servicer, is
obligated to provide pursuant to other provisions of the Agreement, not later
than ten days prior to the deadline for the filing of any distribution report on
Form 10-D in respect of any Securitization Transaction that includes any of the
Mortgage Loans serviced by the Company or any Subservicer, the Company or such
Subservicer, as applicable, shall, to the extent the Company or such Subservicer
has knowledge, provide to the party responsible for filing such report
(including, if applicable, the 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 Company shall provide to the Purchaser, any Master Servicer and
any Depositor, evidence of the authorization of the person signing any
certification or statement, copies or other evidence of Fidelity Bond Insurance
and Errors and Omission Insurance policy, financial information and reports, and
such other information related to the Company or any Subservicer or the Company
or such Subservicer's performance hereunder.
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Section 2.04. Servicer Compliance Statement.
On or before March 5th of each calendar year, commencing in 2007, the
Company shall deliver to the Purchaser, any Master Servicer and any Depositor a
statement of compliance addressed to the Purchaser, such Master Servicer and
such Depositor and signed by an authorized officer of the Company, to the effect
that (i) a review of the Company's activities during the immediately preceding
calendar year (or applicable portion thereof) and of its performance under the
Agreement and any applicable Reconstitution Agreement during such period has
been made under such officer's supervision, and (ii) to the best of such
officer's knowledge, based on such review, the Company has fulfilled all of its
obligations under the Agreement and any applicable Reconstitution Agreement in
all material respects throughout such calendar year (or applicable portion
thereof) or, if there has been a failure to fulfill any such obligation in any
material respect, specifically identifying each such failure known to such
officer and the nature and the status thereof.
Section 2.05. Report on Assessment of Compliance and Attestation.
(a) On or before March 5th of each calendar year, commencing in 2007,
the Company shall:
(i) deliver to the Purchaser, any Master Servicer and any
Depositor a report (in form and substance mutually agreed upon by the
Company, the Purchaser, such Master Servicer and such Depositor) regarding
the Company's assessment of compliance with the Servicing Criteria
applicable to the Company during the immediately preceding calendar year,
as required under Rules 13a-18 and 15d-18 of the Exchange Act and Item
1122 of Regulation AB. Such report shall be addressed to the Purchaser,
such Master Servicer and such Depositor and signed by an authorized
officer of the Company, and shall address each of the "Applicable
Servicing Criteria" specified on Exhibit B 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
Company and delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act;
(iii) cause each Subservicer, and each Subcontractor determined by
the Company pursuant to Section 2.06(b) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB and
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 Section; and
(iv) deliver and cause each Subservicer and Subcontractor
described in clause (iii) to provide, to the Purchaser, any Depositor, any
Master Servicer and any other Person that will be responsible for signing
the certification (a "Sarbanes Certification") required by Rules 13a-14(d)
and 15d-14(d) under the Exchange Act (pursuant to Section 302 of the
Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed issuer with
respect
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to a Securitization Transaction a certification, signed by the appropriate
officer of the Company, in the form attached hereto as Exhibit A.
The Company acknowledges that the parties identified in clause (a)(iv) above may
rely on the certification provided by the Company pursuant to such clause in
signing a Sarbanes Certification and filing such with the Commission. Neither
the Purchaser 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
Section 2.05(a)(iii) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit B hereto delivered to the
Purchaser concurrently with the execution of this Reg AB Addendum or, in the
case of a Subservicer subsequently appointed as such, on or prior to the date of
such appointment. An assessment of compliance provided by a Subcontractor
pursuant to Section 2.05(a)(iii) need not address any elements of the Servicing
Criteria other than those specified by the Company pursuant to Section 2.06.
Section 2.06. Use of Subservicers and Subcontractors.
The Company shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Company as servicer under
the Agreement or any Reconstitution Agreement unless the Company complies with
the provisions of paragraph (a) of this Section. The Company shall not hire or
otherwise utilize the services of any Subcontractor, and shall not permit any
Subservicer to hire or otherwise utilize the services of any Subcontractor, to
fulfill any of the obligations of the Company as servicer under the Agreement or
any Reconstitution Agreement unless the Company complies with the provisions of
paragraph (b) of this Section.
(a) It shall not be necessary for the Company to seek the consent of
the Purchaser, any Master Servicer or any Depositor to the utilization of any
Subservicer. The Company shall cause any Subservicer used by the Company (or by
any Subservicer) for the benefit of the Purchaser and any Depositor to comply
with the provisions of this Section and with Sections 2.02, 2.03( c), (e), (f)
and (g), 2.04, 2.05 and 2.07 of this Reg AB Addendum to the same extent as if
such Subservicer were the Company, and to provide the information required with
respect to such Subservicer under Section 2.03(d) of this Reg AB Addendum. The
Company shall be responsible for obtaining from each Subservicer and delivering
to the Purchaser and any Depositor any servicer compliance statement required to
be delivered by such Subservicer under Section 2.04, any assessment of
compliance and attestation required to be delivered by such Subservicer under
Section 2.05 and any certification required to be delivered to the Person that
will be responsible for signing the Sarbanes Certification under Section 2.05 as
and when required to be delivered.
(b) It shall not be necessary for the Company to seek the consent of
the Purchaser, any Master Servicer or any Depositor to the utilization of any
Subcontractor. The Company shall promptly upon request provide to the Purchaser,
any Master Servicer and any Depositor (or any designee of the Depositor, such as
an administrator) a written description (in form and substance satisfactory to
the Purchaser, such Depositor and such Master Servicer) of the role and
11
function of each Subcontractor utilized by the Company or any Subservicer,
specifying (i) the identity of each such Subcontractor, (ii) which (if any) of
such Subcontractors are "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB as determined by the Company in good
faith, and (iii) which elements of the Servicing Criteria will be addressed in
assessments of compliance provided by each Subcontractor identified pursuant to
clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor determined to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, the Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 2.05 and 2.07 of this Reg AB
Addendum to the same extent as if such Subcontractor were the Company. The
Company shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and any Depositor any assessment of compliance and
attestation and the other certifications required to be delivered by such
Subservicer and such Subcontractor under Section 2.05, in each case as and when
required to be delivered.
Section 2.07. Indemnification; Remedies.
(a) The Company shall indemnify the Purchaser, each affiliate of the
Purchaser, and each of the following parties participating in a Securitization
Transaction: each sponsor; 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 II by or
on behalf of the Company, or provided under this Article II by or on
behalf of any Subservicer, Subcontractor or Third-Party Originator
(collectively, the "Company Information"), or (B) the omission or alleged
omission to state in the Company Information a material fact required to
be stated in the Company Information or necessary in order to make the
statements therein, in the light of the circumstances under which they
were 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;
12
(ii) any breach by the Company of its obligations under this
Article II, including particularly any failure by the Company, any
Subservicer, any Subcontractor or any Third-Party Originator to deliver
any information, report, certification, accountants' letter or other
material when and as required under this Article II, including any failure
by the Company to identify pursuant to Section 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 Company of a representation or warranty
set forth in Section 2.02(a) or in a writing furnished pursuant to Section
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 Company of a representation or
warranty in a writing furnished pursuant to Section 2.02(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
Company in connection with its performance under this Article II.
If the indemnification provided for herein is unavailable or insufficient
to hold harmless an Indemnified Party, then the Company agrees that it shall
contribute to the amount paid or payable by such Indemnified Party as a result
of any claims, losses, damages or liabilities incurred by such Indemnified Party
in such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Company on the other.
In the case of any failure of performance described in clause (a)(ii) of
this Section, the Company shall promptly reimburse the Purchaser, any Depositor,
as applicable, and each Person responsible for the preparation, execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such party
in order to obtain the information, report, certification, accountants' letter
or other material not delivered as required by the Company, any Subservicer, any
Subcontractor or any Third-Party Originator.
This indemnification shall survive the termination of this Agreement or
the termination of any party to this Agreement.
(b) (i) Any failure by the Company, any Subservicer, any
Subcontractor or any Third-Party Originator to deliver any information,
report, certification, accountants' letter or other material when and as
required under this Article II, or any breach by the Company of a
representation or warranty set forth in Section 2.02(a) or in a writing
furnished pursuant to Section 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
Company of a representation or warranty in a writing furnished pursuant to
Section 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 Company under the Agreement and
any applicable Reconstitution Agreement, and shall entitle the Purchaser
or any Depositor, as applicable, in its sole discretion to
13
terminate the rights and obligations of the Company as servicer under the
Agreement and/or any applicable Reconstitution Agreement without payment
(other than for payment of accrued fees and reimbursable expenses owed to
the Company thereunder at the time of such termination net of any amounts
payable from the Company to the Purchaser or any Depositor hereunder at
such time) (notwithstanding anything in this Agreement or any applicable
Reconstitution Agreement to the contrary) of any compensation to the
Company (and if the Company is servicing any of the Mortgage Loans in a
Securitization Transaction, appoint a successor servicer reasonably
acceptable to any Master Servicer for such Securitization Transaction);
provided that to the extent that any provision of the Agreement and/or any
applicable Reconstitution Agreement expressly provides for the survival of
certain rights or obligations following termination of the Company as
servicer, such provision shall be given effect.
(ii) Any failure by the Company, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Section 2.04 or 2.05,
including any failure by the Company to identify pursuant to Section
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 Company under the
Agreement and any applicable Reconstitution Agreement, and shall entitle
the Purchaser, any Master Servicer or any Depositor, as applicable, in its
sole discretion to terminate the rights and obligations of the Company as
servicer under the Agreement and/or any applicable Reconstitution
Agreement without payment (other than for payment of accrued fees and
reimbursable expenses owed to the Company thereunder at the time of such
termination net of any amounts payable from the Company to the Purchaser
or any Depositor hereunder at such time) (notwithstanding anything in this
Agreement to the contrary) of any compensation to the Company; provided
that to the extent that any provision of the Agreement and/or any
applicable Reconstitution Agreement expressly provides for the survival of
certain rights or obligations following termination of the Company as
servicer, such provision shall be given effect.
(iii) The Company shall promptly reimburse the Purchaser (or any
designee of the Purchaser, such as a master servicer) and any Depositor,
as applicable, for all reasonable expenses incurred by the Purchaser (or
such designee) or such Depositor, as such are incurred, in connection with
the termination of the Company as servicer and the transfer of servicing
of the Mortgage Loans to a successor servicer. The provisions of this
paragraph shall not limit whatever rights the Purchaser or any Depositor
may have under other provisions of the 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.
Section 2.08. Third Party Beneficiary.
For purposes of this Article II and any related provisions thereto, each
Master Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereof as if it were a direct party to
this Agreement.
14
IN WITNESS WHEREOF, the Purchaser and the Company have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Purchaser
By: /s/ Xxxxx X. Good
-------------------------------------
Name: Xxxxx X. Good
-----------------------------------
Title: Vice President
----------------------------------
SUNTRUST MORTGAGE, INC.,
as Company
By: /s/ Xxx X. Xxxxxxx
-------------------------------------
Name: Xxx X. Xxxxxxx
------------------------------------
Title: First Vice President
----------------------------------
[Signature Page to Regulation AB Compliance Addendum (servicing-retained)]
EXHIBIT A
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the
"Agreement"), among [IDENTIFY PARTIES]
I, ________________________________, the _____________________ of [NAME
OF COMPANY] (the "Company"), 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 and identified as the responsibility of the Company on
Exhibit B to the Regulation AB Compliance Addendum to the Agreement (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and 15d-18
under Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Item 1122 of Regulation AB (the "Servicing Assessment"), the registered
public accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report"), and all servicing reports,
officer's certificates and other information relating to the servicing of
the Mortgage Loans by the Company during 200[ ] that were delivered by the
Company to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee] pursuant to the Agreement (collectively, the "Company Servicing
Information");
(2) Based on my knowledge, the Company Servicing Information,
taken as a whole, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were 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 [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 this Agreement, and the Servicing Assessment and
Attestation Report required to be provided by the Company and by any
Subservicer and Subcontractor pursuant to the Agreement, have been
provided to the [Depositor] [Master Servicer].
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.
Date: __________________________________
By: __________________________________
Name:
Title:
2
EXHIBIT B
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria";
---------------------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
---------------------------------------------------------------------------------------------
REFERENCE CRITERIA
---------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
---------------------------------------------------------------------------------------------
Policies and procedures are instituted to monitor
any performance or other triggers and events of X
1122(d)(1)(i) default in accordance with the transaction agreements.
---------------------------------------------------------------------------------------------
If any material servicing activities are outsourced
to third parties, policies and procedures are
instituted to monitor the third party's performance X
1122(d)(1)(ii) and compliance with such servicing activities.
---------------------------------------------------------------------------------------------
Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans
1122(d)(1)(iii) are maintained.
---------------------------------------------------------------------------------------------
A fidelity bond and errors and omissions policy is
in effect on the party participating in the
servicing function throughout the reporting period X
in the amount of coverage required by and otherwise in
1122(d)(1)(iv) accordance with the terms of the transaction agreements.
---------------------------------------------------------------------------------------------
CASH COLLECTION AND ADMINISTRATION
---------------------------------------------------------------------------------------------
Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related
bank clearing accounts no more than two business X
days following receipt, or such other number of
1122(d)(2)(i) days specified in the transaction agreements.
---------------------------------------------------------------------------------------------
Disbursements made via wire transfer on behalf of
an obligor or to an investor are made only by X
1122(d)(2)(ii) authorized personnel.
---------------------------------------------------------------------------------------------
Advances of funds or guarantees regarding
collections, cash flows or distributions, and any
interest or other fees charged for such advances, X
are made, reviewed and approved as specified in the
1122(d)(2)(iii) transaction agreements.
---------------------------------------------------------------------------------------------
The related accounts for the transaction, such as
cash reserve accounts or accounts established as a
form of overcollateralization, are separately X
maintained (e.g., with respect to commingling of
1122(d)(2)(iv) cash) as set forth in the transaction agreements.
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
---------------------------------------------------------------------------------------------
REFERENCE CRITERIA
---------------------------------------------------------------------------------------------
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 X
to a foreign financial institution means a foreign
financial institution that meets the requirements of
1122(d)(2)(v) Rule 13k-1 (b)(1) of the Securities Exchange Act.
---------------------------------------------------------------------------------------------
Unissued checks are safeguarded so as to prevent X
1122(d)(2)(vi) unauthorized access.
---------------------------------------------------------------------------------------------
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 X
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
1122(d)(2)(vii) days specified in the transaction agreements.
---------------------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
---------------------------------------------------------------------------------------------
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 X
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
1122(d)(3)(i) serviced by the Servicer.
---------------------------------------------------------------------------------------------
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and X
1122(d)(3)(ii) 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 X
other number of days specified in the transaction
1122(d)(3)(iii) agreements.
---------------------------------------------------------------------------------------------
Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or X
1122(d)(3)(iv) custodial bank statements.
---------------------------------------------------------------------------------------------
2
---------------------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
---------------------------------------------------------------------------------------------
REFERENCE CRITERIA
---------------------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
---------------------------------------------------------------------------------------------
Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related X
1122(d)(4)(i) mortgage loan documents.
---------------------------------------------------------------------------------------------
Mortgage loan and related documents are safeguarded as X
1122(d)(4)(ii) required by the transaction agreements
--------------------------------------------------------------------------------------------
Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance with X
any conditions or requirements in the transaction
1122(d)(4)(iii) agreements.
---------------------------------------------------------------------------------------------
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 X
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
1122(d)(4)(iv) mortgage loan documents.
---------------------------------------------------------------------------------------------
The Servicer's records regarding the mortgage loans
agree with the Servicer's records with respect to X
1122(d)(4)(v) an obligor's unpaid principal balance.
---------------------------------------------------------------------------------------------
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 X
personnel in accordance with the transaction agreements
1122(d)(4)(vi) and related pool asset documents.
---------------------------------------------------------------------------------------------
Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are X
initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the
1122(d)(4)(vii) transaction agreements.
---------------------------------------------------------------------------------------------
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 X
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
1122(d)(4)(viii) unemployment).
---------------------------------------------------------------------------------------------
3
---------------------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
---------------------------------------------------------------------------------------------
REFERENCE CRITERIA
---------------------------------------------------------------------------------------------
Adjustments to interest rates or rates of return
for mortgage loans with variable rates are computed X
1122(d)(4)(ix) based on the related mortgage loan documents.
---------------------------------------------------------------------------------------------
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 X
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
1122(d)(4)(x) transaction agreements.
---------------------------------------------------------------------------------------------
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 X
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
1122(d)(4)(xi) agreements.
---------------------------------------------------------------------------------------------
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 X
the late payment was due to the obligor's error or
1122(d)(4)(xii) 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 X
1122(d)(4)(xiii) specified in the transaction agreements.
---------------------------------------------------------------------------------------------
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the X
1122(d)(4)(xiv) transaction agreements.
---------------------------------------------------------------------------------------------
Any external enhancement or other support, identified in X
Item 1114(a)(1) through (3) or Item 1115 of Regulation if
AB, is maintained as set forth in the transaction obligated
agreements. under
transaction
1122(d)(4)(xv) documents
---------------------------------------------------------------------------------------------
4
