SERVICING AGREEMENT NATIONAL CITY BANK Servicer CITIGROUP HELOC TRUST 2006-NCB1 Issuer CITIBANK, N.A., Securities Administrator AND Indenture Trustee Dated as of May 23, 2006 Adjustable Rate HELOCs
NATIONAL
CITY BANK
Servicer
Issuer
CITIBANK,
N.A.,
Securities
Administrator
AND
U.S.
BANK
NATIONAL ASSOCIATION,
Indenture
Trustee
Dated
as
of May 23, 2006
Adjustable
Rate HELOCs
This
is a SERVICING AGREEMENT (the “Agreement”), dated as of May 23, 2006, by and
among Citigroup HELOC Trust 2006-NCB1 (the “Issuer”), Citibank, N.A. (“the
“Securities Administrator”), U.S. Bank National Association (the “Indenture
Trustee”) and National City Bank, having an office at 0000 X. Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000 (the “Servicer”).
W
I T N E S S E T H :
WHEREAS,
Citigroup
Global Markets realty Group (the “Seller”) will sell the HELOCs to Citigroup
Mortgage Loan Trust Inc. (the “Depositor”) pursuant to the terms of a HELOC
Purchase Agreement, dated May 23, 2006 among the Seller, the Depositor and
National City Bank as Originator.
WHEREAS,
the Depositor will sell the HELOCs to Citigroup HELOC Trust 2006-NCB1, a
Delaware statutory trust (the “Issuer”) pursuant to a Trust Agreement, dated as
of May 12, 2006, as amended and restated on May 23, 2006, (the “Trust
Agreement”), among the Depositor, Wilmington Trust Company (not in its
individual capacity, but solely as Owner Trustee of the Issuer) and Citibank,
N.A. (the “Securities Administrator”).
WHEREAS,
the Issuer will issue a single series of HELOC-backed notes designated as Series
2006-NCB1 (the “Notes”). The Notes will consist of five classes of notes. The
Issuer, pursuant to an Indenture, dated as of May 23, 2006 (the “Indenture”),
among the Issuer, the Securities Administrator and the Indenture Trustee, will
pledge the HELOCs to the Indenture Trustee and issue the Notes and the
Certificates will be issued pursuant to the Trust Agreement (the
“Certificates”).
WHEREAS,
the Issuer desires the servicing of the HELOCs to be provided by National
City Bank
pursuant
to this Agreement.
NOW,
THEREFORE, in consideration of the premises and mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE
I
DEFINITIONS.
For
purposes of this Agreement the following capitalized terms shall have the
respective meanings set forth below.
Capitalized terms used but not defined herein shall have the meanings set forth
in the Indenture.
Accepted
Servicing Practices:
With respect
to
any HELOC, those loan
servicing practices (including collection procedures)
which,
as of any particular date, follow the policies and procedures that Servicer
applies to substantially similar HELOCs serviced for Servicer’s own account and
for the accounts of Servicer’s Affiliates and which, in the Servicer’s opinion,
follow the loan servicing practices
of
prudent lending institutions which service HELOCs of the same type as such
HELOC
in the jurisdiction where the related Mortgaged Property is located which shall
be in compliance with all applicable laws and regulations and the terms of
the
HELOC Documents.
Additional
Balance:
With respect to any HELOC, any Draw made by the related Mortgagor pursuant
to
the related Loan Agreement on and after the Cut-off Date.
Adjustment
Date:
With respect to each HELOC, the date set forth in the related Loan Agreement
on
which the Mortgage Interest Rate on such HELOC is adjusted in accordance with
the terms of the related Loan Agreement.
Affiliate:
A
Person controlled by or under common control with a Person. Control exists
when
a Person owns or controls more than 50% of another Person.
Agreement:
This Servicing Agreement including all exhibits, schedules, amendments and
supplements hereto.
Amortization
Period:
With respect to any HELOC, the period of time subsequent to the Draw Period
during which the borrower is obligated to make Minimum Monthly Payments equal
to
interest accrued on the Principal Balance plus an amount sufficient to amortize
the unpaid Principal
Balance
of the
HELOC over its remaining term
as
provided in the related Loan Agreement.
Appraised
Value:
The value set forth in an appraisal or AVM made in connection with the
origination of the related HELOC as the value of the related Mortgaged
Property.
Assignment
of Mortgage:
With respect to each HELOC, an individual assignment of the Mortgage, notice
of
transfer or equivalent instrument in recordable form, sufficient under the
laws
of the jurisdiction wherein the related Mortgaged Property is located to give
record notice of the sale of the Mortgage to the Issuer.
Billing
Cycle:
With respect to any HELOC and Due Date, the billing cycle specified in the
related Loan Agreement.
Business
Day:
Any day other than a Saturday or Sunday, or a day on which banking and savings
and loan institutions in the State of Ohio or the State of New York are
authorized or obligated by law or executive order to be closed.
Closing
Date:
May 23, 2006.
Code:
The Internal Revenue Code of 1986, or any successor statute
thereto.
Combined
Loan-to-Value Ratio or CLTV:
With respect to any second lien HELOC, the sum of the Credit Limit of such
HELOC
and the outstanding principal balance of any related First Lien, divided by
the
lesser of the Appraised Value of the Mortgaged Property as of the origination
date or the purchase price of the Mortgaged Property.
Commission:
The United States Securities and Exchange Commission.
Condemnation
Proceeds:
All awards, compensation and settlements in respect of a taking of all or part
of a Mortgaged Property by exercise of the power of condemnation or the right
of
eminent domain.
Credit
Limit:
With respect to any HELOC,
the
maximum dollar
amount of Draws
permitted under the terms of the related
Loan Agreement.
Credit
Score:
The credit
score for each HELOC shall be the credit
scores
as
provided in Servicer’s Underwriting Standards
obtained
at origination or such other time by the Servicer. When there is more than
one
applicant, the lowest of the applicants’ Credit Scores will be used. There is
only one (1) score for any loan regardless of the number of borrowers and/or
applicants. The minimum Credit Score for each HELOC will be in accordance with
the Servicer’s Underwriting Standards.
Custodial
Account:
The separate account or accounts, each of which shall be an Eligible Account,
created and maintained pursuant to this Agreement, which shall be entitled
“National
City Bank, as servicer for U.S. Bank National Association, as indenture trustee
for the holders of Citigroup HELOC Trust 2006-NCB1, HELOC-Backed Notes, Series
2006-NCB1.”
The Custodial Account shall initially be established at National City
Bank.
Custodial
Agreement:
The agreement, dated as of May 23, 2006, between the Servicer and the Custodian
governing the retention of the originals of each Loan Agreement, Mortgage,
Assignment of Mortgage and other HELOC Documents.
Custodian:
National City Bank, or its successor in interest or assigns, or any successor
to
the Custodian under the Custodial Agreement, as therein provided.
Cut-off
Date:
May 1, 2006.
Defaulted
HELOC:
A HELOC
where: (a) either (i) the Mortgagor failed to make a Minimum Monthly Payment
or
other payment owed under the Loan Agreement when the same was due and payable,
unless the Servicer has agreed to postpone such Minimum Monthly Payment or
other
payment, or (ii) the Mortgagor has failed to perform a covenant or obligation
under the Loan Agreement or the Mortgage, and (b) such failure to pay or default
has continued beyond any applicable grace period.
Depositor:
The depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Distribution
Date:
The 13th day of each month, commencing on the 13th day of the month next
following the month in which the related Cut-off Date occurs, or if such 13th
day is not a Business Day, the first Business Day immediately preceding such
13th day.
Draw:
With respect to any HELOC, a borrowing by the Mortgagor as
permitted
under the related Loan Agreement.
Draw
Period:
With respect to each HELOC, the period commencing after the date of origination
of such HELOC, during which the related Mortgagor is permitted to make Draws.
A
Draw Period shall be ten (10) years; provided that, with respect to any HELOC
which is secured by a Mortgaged Property which
is located in the State of Connecticut shall be
9 years and 10 months.
Due
Date:
With respect to each Distribution Date, the day of the calendar month on which
the Minimum Monthly Payment is due on a HELOC, exclusive of any days of
grace.
Due
Period:
With respect to each Distribution Date, the period commencing on the second
day
of the month preceding the month of the Distribution Date and ending on the
first day of the month of the Distribution Date.
Eligible
Account:
Either (i) an account or accounts maintained with a federal or state chartered
depository institution or trust Servicer the short-term unsecured debt
obligations of which (or, in the case of a depository institution or trust
Servicer that is the principal subsidiary of a holding Servicer, the short-term
unsecured debt obligations of such holding Servicer) are rated A-1 by S&P or
Prime-1 by Moody’s at the time any amounts are held on deposit therein, (ii) an
account or accounts the deposits in which are fully insured by the FDIC or
(iii)
a trust account or accounts maintained with a federal or state chartered
depository institution or trust Servicer acting in its fiduciary capacity.
Eligible Accounts may bear interest.
Equity:
With respect to any second lien HELOC, the Appraised Value, less the unpaid
principal balance of the related First Lien.
Equity
Loan-to-Value:
With respect to any second lien HELOC, the original principal balance of such
HELOC, divided by the Equity.
Event
of Default:
Any one of the events enumerated in Section 15.01.
Exchange
Act:
The Securities Exchange Act of 1934, as amended.
FDIC:
The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC:
Xxxxxxx Mac or any successor thereto.
Final
Recovery Determination:
With respect to any Defaulted
HELOC or any REO Property (other than a HELOC or REO Property purchased by
the
Servicer pursuant to this Agreement), a determination made by the Servicer
that
all Insurance Proceeds, Liquidation Proceeds and other payments or recoveries
which the Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records, prepared by a servicing officer of the Servicer, of each
Final
Recovery Determination.
First
Lien:
With respect to any second lien HELOC, the mortgage loan relating to the
corresponding Mortgaged Property having a first priority lien.
Flood
Zone Service Contract:
A transferable contract maintained for the Mortgaged Property with a nationally
recognized flood zone service provider for the purpose of obtaining the current
flood zone status relating to such Mortgaged Property.
FNMA:
Xxxxxx Xxx or any successor thereto.
Gross
Margin:
With respect to any HELOC, the fixed percentage amount set forth in the related
Loan Agreement and the related HELOC Schedule that is added to the Index on
each
Adjustment Date in accordance with the terms of the related Loan Agreement
to
determine the new Mortgage Interest Rate for such HELOC.
HELOC:
An individual HELOC which is the subject of this Agreement, including any
Additional Balances with respect thereto, each HELOC originally sold and subject
to this Agreement being identified on the HELOC Schedule, which HELOC includes
without limitation the Mortgage File, the Minimum Monthly Payments, Principal
Prepayments (including any Prepayment Charges and Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds, and all
other rights, benefits, proceeds and obligations arising from or in connection
with such HELOC, excluding replaced or repurchased HELOCs.
HELOC
Documents:
The documents listed in Section 2 of the Custodial Agreement pertaining to
any
HELOC.
HELOC
Schedule:
The schedule of HELOCs to be annexed hereto as Schedule I (or a supplement
thereto) on the Closing Date for the HELOCs delivered on the Closing Date in
both hard copy and floppy disk, such schedule setting forth the following
information with respect to each HELOC:
| 1. |
the
Servicer’s HELOC identifying
number;
|
| 2. |
the
Mortgagor’s name;
|
| 3. |
the
street address of the Mortgaged Property including the state and
zip
code;
|
| 4. |
a
code indicating whether the Mortgaged Property is
owner-occupied;
|
| 5. |
the
type of residential property constituting the Mortgaged
Property;
|
| 6. |
the
original months to maturity or the remaining months to maturity from
the
Cut-off Date, in any case based on the original amortization schedule
and,
if different, the maturity expressed in the same manner but based
on the
actual amortization schedule;
|
| 7. |
with
respect to each second lien HELOC, the Combined Loan-to-Value Ratio
and
the Equity Loan-to-Value Ratio, each at origination and as of the
Cut-off
Date;
|
| 8. |
the
Mortgage Interest Rate at origination and as of the Cut-off
Date;
|
| 9. |
the
HELOC origination date;
|
| 10. |
the
paid through date;
|
| 11. |
the
stated maturity date of the HELOC and of the First
Lien;
|
| 12. |
the
amount of the Minimum Monthly Payment as of the Cut-off
Date;
|
| 13. |
the
original principal amount of the HELOC and, if applicable, the principal
balance of the related First Lien as of the date of origination of
the
HELOC;
|
| 14. |
the
Principal Balance of the HELOC and, if applicable, the principal
balance
of the related First Lien as of the Cut-off
Date;
|
| 15. |
a
code indicating the purpose of the HELOC (i.e., purchase, rate and
term
refinance, equity take-out
refinance);
|
| 16. |
a
code indicating the documentation style (i.e., full, alternative
or
reduced);
|
| 17. |
the
number of times during the twelve (12) month period preceding the
Closing
Date that any Minimum Monthly Payment has been received thirty (30)
or
more days after its Due Date;
|
| 18. |
the
date on which the first payment is
due;
|
| 19. |
a
code indicating the Credit Score of the Mortgagor at the time of
origination of the HELOC;
|
| 20. |
a
code indicating the credit grade and specific loan/underwriting program
of
each HELOC as assigned by the Servicer pursuant to the Underwriting
Standards;
|
| 21. |
the
first Adjustment Date and the Adjustment Date
frequency;
|
| 22. |
the
Gross Margin;
|
| 23. |
the
Maximum Mortgage Interest Rate under the terms of the Loan
Agreement;
|
| 24. |
the
Minimum Mortgage Interest Rate under the terms of the Loan
Agreement;
|
| 25. |
the
first Adjustment Date immediately following the Cut-off
Date;
|
| 26. |
a
code indicating whether the HELOC is a first or second lien
HELOC;
|
| 27. |
the
Index;
|
| 28. |
Credit
Limit;
|
| 29. |
Draw
Period;
|
| 30. |
Amortization
Period;
|
| 31. |
Debt
to Income Ratio;
|
| 32. |
the
Due Date; and
|
| 33. |
a
code indicating whether or not the HELOC is the subject of a Prepayment
Charge as well as the terms of the Prepayment
Charge.
|
With
respect to the HELOCs in the aggregate, the HELOC Schedule shall set forth
the
following information, as of the Cut-off Date, unless otherwise
specified:
(1) the
number of HELOCs;
(2) the
current aggregate principal balance of the HELOCs and the aggregate Credit
Limit;
(3) the
weighted average Mortgage Interest Rate of the HELOCs;
(4) the
weighted average original months to maturity of the HELOCs and the weighted
average remaining months to maturity of the HELOCs.
HUD:
The United States Department of Housing and Urban Development or any successor
thereto.
Index:
With respect to any HELOC, the index identified on the HELOC Schedule and set
forth in the related Loan Agreement for the purpose of calculating the interest
rate thereon.
Insurance
Proceeds:
With respect to each HELOC, proceeds of insurance policies insuring the HELOC
or
the related Mortgaged Property.
Insured
Securities:
The
Citigroup
HELOC
Trust 2006-NCB1, HELOC-Backed Securities, Series 2006-NCB1, Class A Notes and
Class N Certificates.
Insurer:
Ambac
Assurance
Corporation, a Wisconsin stock insurance corporation or its successor in
interest.
Insurer
Default:
The
existence
and
continuance of any of the following: (a) a failure by the Insurer to make a
payment required under the Policy in accordance with its terms; or (b) the
Insurer (i) files any petition or commences any case or proceeding under any
provision or chapter of the Bankruptcy Code or any other similar federal or
state law relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization, (ii) makes a general assignment for the benefit of its
creditors, or (iii) has an order for relief entered against it under the
Bankruptcy Code or any other similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization which
is
final and nonappealable; or (c) a court of competent jurisdiction, the New
York
insurance department or other competent regulatory authority enters a final
and
nonappealable order, judgment or decree (i) appointing a custodian, trustee,
agent or receiver for the Insurer or for all or any material portion of its
property or (ii) authorizing the taking of possession by a custodian, trustee,
agent or receiver of the Insurer (or the taking of possession of all or any
material portion of the property of the Insurer).
Liquidation
Proceeds:
Amounts, other than Insurance Proceeds and Condemnation Proceeds, received
in
connection with the liquidation of a defaulted HELOC through trustee’s sale,
foreclosure sale or otherwise, other than amounts received following the
acquisition of REO Property.
Loan
Agreement:
With respect to any HELOC, the credit line account agreement executed by the
related Mortgagor and any amendment or modification thereof.
Loan-to-Value
Ratio or LTV:
With respect to any first lien HELOC, the Credit Limit of such HELOC, divided
by
the lesser of (1) the Appraised Value of the Mortgaged Property as of the date
of origination or (2) the purchase price of the Mortgaged Property.
Majority
Holder:
The
Insurer, so long as so long as an Insured Security is outstanding or any amounts
are due and owing to the Insurer under the Indenture and an Insurer Default
has
not occurred and is continuing, or, if no Insured Security is outstanding and
no
amounts are due and owing to the Insurer under the Indenture or if an Insurer
Default has occurred and is continuing, the Holder or Holders of in excess
of
50% of the Voting Rights.
Maximum
Mortgage Interest Rate:
With respect to each HELOC, a rate that is set forth on the related HELOC
Schedule and in the related Loan Agreement and is the maximum interest rate
to
which the Mortgage Interest Rate on such HELOC may be increased on any
Adjustment Date.
Minimum
Monthly Payment:
With respect to any HELOC and any month, the minimum amount required to be
paid
by the related Mortgagor in that month.
Minimum
Mortgage Interest Rate:
With respect to each HELOC, a rate that is set forth on the related HELOC
Schedule and in the related Loan Agreement and is the minimum interest rate
to
which the Mortgage Interest Rate on such HELOC may be decreased on any
Adjustment Date.
Moody’s:
Xxxxx’x Investors Service, Inc. or its successor in interest.
Mortgage:
The mortgage, deed of trust or other instrument creating a first or second
lien
on Mortgaged Property securing the Loan Agreement.
Mortgage
Interest Rate:
With respect to each HELOC, the annual rate that interest accrues on such HELOC
from time to time in accordance with the provisions of the related Loan
Agreement.
Mortgaged
Property:
The Mortgagor’s real property securing repayment of a related Loan Agreement,
consisting of a fee simple interest in a single parcel of real property improved
by a Residential Dwelling.
Mortgagee:
The mortgagee or beneficiary named in the Mortgage and the successors and
assigns of such mortgagee or beneficiary.
Mortgagor:
The obligor on a Loan Agreement, the owner of the Mortgaged Property and the
grantor or mortgagor named in the related Mortgage and such grantor’s or
mortgagor’s successor’s in title to the Mortgaged Property.
Net
Mortgage Rate:
With respect to any HELOC (or the related REO Property), as of any date of
determination, a per annum rate of interest equal to the then applicable
Mortgage Interest Rate for such HELOC minus the Servicing Fee Rate.
Officer’s
Certificate:
A certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or a President or a Vice President and by the Treasurer or the Secretary
or one of the Assistant Treasurers or Assistant Secretaries of the Person on
behalf of whom such certificate is being delivered.
Opinion
of Counsel:
A written opinion of counsel, who may be salaried counsel for the Person on
behalf of whom the opinion is being given, reasonably acceptable to each Person
to whom such opinion is addressed.
Person:
An individual, corporation, limited liability Servicer, partnership, joint
venture, association, joint-stock Servicer, trust, unincorporated organization
or government or any agency or political subdivision thereof.
Policy:
The
Financial Guaranty Insurance Policy No. AB0995BE issued by the Insurer in
Principal
Balance:
As to each HELOC, (i) the principal balance of such HELOC on
a
specific date as specified in this Agreement
after
giving effect to payments of principal received on or before such date, plus
(ii) any Additional Balances in respect of such HELOC on
such
date,
minus
(iii) all amounts previously distributed to the Securities Administrator with
respect to the HELOC representing payments or recoveries of principal or
advances in lieu thereof.
Principal
Prepayment:
Any payment or other recovery of principal on a HELOC which is received in
advance of its scheduled Due Date, including any Prepayment Charge, which is
not
accompanied by an amount of interest representing scheduled interest due on
any
date or dates in any month or months subsequent to the month of
prepayment.
Qualified
Correspondent:
Any Person from which the Servicer purchased HELOCs, provided that the following
conditions are satisfied: (i) such HELOCs were originated pursuant to an
agreement between the Servicer and such Person that contemplated that such
Person would underwrite mortgage loans from time to time, for sale to the
Servicer, in accordance with underwriting guidelines designated by the Servicer
(“Designated Guidelines”) or guidelines that do not vary materially from such
Designated Guidelines; (ii) such HELOCs were in fact underwritten as described
in clause (i) above and were acquired by the Servicer within 180 days after
origination; (iii) either (x) the Designated Guidelines were, at the time such
HELOCs were originated, used by the Servicer in origination of mortgage loans
of
the same type as the HELOCs for the Servicer’s own account or (y) the Designated
Guidelines were, at the time such HELOCs were underwritten, designated by the
Servicer on a consistent basis for use by lenders in originating mortgage loans
to be purchased by the Servicer; and (iv) the Servicer employed, at the time
such HELOCs were acquired by the Servicer, 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
Servicer. For the avoidance of doubt, a “Qualified Correspondent” includes a
“table broker” or mortgage lender that originates loans underwritten and funded
by the Servicer or an Affiliate of the Servicer.
Qualified
Insurer:
An insurance Servicer duly qualified as such under the laws of the states in
which the Mortgaged Property is located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided, and approved as an insurer by FHLMC and whose claims paying ability
is
rated in the two highest rating categories by Best’s with respect to hazard and
flood insurance.
Rate/Term
Refinancing:
A Refinanced HELOC, the proceeds of which are not in excess of the existing
first HELOC on the related Mortgaged Property and related closing costs, and
were used exclusively to satisfy the then existing first HELOC of the Mortgagor
on the related Mortgaged Property and to pay related closing costs.
Record
Date:
With respect to each Distribution Date, the last Business Day of the month
immediately preceding the month in which such Distribution Date
occurs.
Refinanced
HELOC:
A HELOC the proceeds of which were not used to purchase the related Mortgaged
Property.
Regulation
AB:
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
REMIC:
A “real estate mortgage investment conduit” within the meaning of Section 860D
of the Code.
REMIC
Provisions:
Provisions of the federal income tax law relating to REMIC’s, which appear in
Sections 860A through 860G of the Code, and related provisions, and proposed,
temporary and final regulations and published rulings, notices and announcements
promulgated thereunder, as the foregoing may be in effect from time to
time.
REO
Account:
The separate trust account or accounts created and maintained pursuant to this
Agreement which shall be entitled “National
City Bank, as servicer for U.S. Bank National Association, as indenture trustee
for the holders of Citigroup HELOC Trust 2006-NCB1, HELOC-Backed Notes, Series
2006-NCB1”.
REO
Disposition:
The final sale by the Servicer of any REO Property.
REO
Property:
A Mortgaged Property acquired as a result of the liquidation of a
HELOC.
Repurchase
Price:
With respect to any HELOC, a price equal to (i)(A) prior to the Reconstitution
Date with respect to such HELOC, the product of the Principal Balance of such
HELOC on
the
date of repurchase times
the
greater of (x) the Purchase Price percentage as stated in the related
Confirmation and (y) 100%, and (B) thereafter, the Principal Balance of such
HELOC
on the
date of repurchase,
plus
(ii) interest on such Principal Balance at the
Mortgage Interest Rate from and including the last Due Date through which
interest has been paid by or on behalf of the Mortgagor to the date of
repurchase, less amounts received in respect of such repurchased HELOC which
are
being held in the Custodial Account for distribution in connection with such
HELOC, plus (iii) any unreimbursed
servicing
advances
and any
unpaid servicing
fees
allocable to such HELOC
paid by any party other than the Servicer, plus (iv) any costs and expenses
incurred by the Issuer, the Servicer, the Securities Administrator or the
Indenture Trustee in respect of the breach or defect giving rise to the
repurchase obligation including, without limitation, any costs and damages
incurred by any such party in connection with any violation by any such HELOC
of
any predatory or abusive lending law.
Residential
Dwelling:
Any one of the following: (i) a detached one-family dwelling, (ii) a detached
two- to four-family dwelling, or (iii) a detached one-family dwelling in a
planned unit development, none of which is a co-operative, mobile or
manufactured home.
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 HELOCs 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 HELOCs.
Servicer
Termination Test:
With
respect to any Distribution Date, the Servicer Termination Test will be failed
if in the case of any Distribution Date indicated below, the cumulative amount
of Realized Losses (net of any Subsequent Recoveries deemed to have reduced
such
amount of Realized Losses) incurred on the HELOCs has exceeded the indicated
percentage of the aggregate Stated Principal Balance of the HELOCs as of the
Cut-off Date:
|
Distribution
Date
|
Percentage
of aggregate Stated Principal Balance of the HELOCs as of the Cut-off
Date
|
|
June
2006 through May 2007
|
1.25%
|
|
June
2007 through May 2008
|
2.25%
|
|
June
2008 through May 2009
|
3.00%
|
|
June
2009 through May 2010
|
3.25%
|
|
June
2010 and subsequent Distribution Dates
|
3.50%
|
Servicing
Advances:
All customary, reasonable and necessary “out-of-pocket” costs and expenses
incurred by the Servicer in the performance of its servicing obligations,
including, but not limited to, the cost of (i) preservation, restoration and
repair of a Mortgaged Property, (ii) any enforcement or judicial proceedings
with respect to a HELOC, including foreclosure actions and (iii) the management
and liquidation of REO Property.
Servicing
Criteria:
The “servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may
be amended from time to time.
Servicing
Fee:
With respect to each HELOC, the amount of the annual servicing fee payable
to
the Servicer, which shall, for each month, be equal to one-twelfth of the
product of (a) the Servicing Fee Rate and (b) the unpaid principal balance
of
the HELOC. Such fee shall be payable monthly, computed on the basis of the
same
principal amount and period respectively which any related interest payment
on a
HELOC is computed.
The
Servicing Fee payable to the Servicer is limited to, and payable solely from,
the interest portion (including recoveries with respect to interest from
Liquidation Proceeds and other proceeds, to the extent permitted by Section
2.05) of the Monthly Payments collected by the Servicer, or as otherwise
provided under Section 2.05.
Servicing
Fee Rate:
The per annum rate at which the Servicing Fee accrues, which rate shall be
0.50%
per annum.
Servicing
File:
With respect to each HELOC, the file retained by the Servicer consisting of
originals of all documents in the Mortgage File which are not delivered to
the
Indenture Trustee or the Custodian and copies of the HELOC Documents set forth
in Section 2 of the Custodial Agreement
and in
System Records.
S&P:
Standard & Poor’s Ratings Group or its successor in interest.
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 HELOCs but performs one or more discrete
functions identified in Item 1122(d) of Regulation AB with respect to HELOCs
under the direction or authority of the Servicer or a Subservicer.
Subservicer:
Any Person that services HELOCs on behalf of the Servicer 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 Servicer under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB;
provided, however, that the term “Subservicer” shall not include any master
servicer, or any special servicer engaged at the request of a Depositor, Issuer
or an investor in a Securitization Transaction nor any “back-up Servicer” or
Trustee performing servicing functions on behalf of a Securitization
Transaction.
Sub-Servicing
Agreement:
The written contract between the Servicer and a Subservicer relating to
servicing and administration of certain HELOCs as provided in Section 2.26
of
this Agreement.
System
Records:
As to a
HELOC, all accounting information, reports, books, records, statements and
data
regularly maintained by the Servicer in its capacity as servicer, as custodian
for Principal, for the HELOCs on electronic information and accounting systems
or electronic storage media, separately specifying or accounting for the HELOCs,
including, without limitation, imaged documents evidencing the terms of such
HELOCs and its underwriting, origination and servicing prior to the commencement
of HELOC servicing.
ARTICLE
II
Section
2.01 Servicer
to Act as Servicer.
The
Servicer, as an independent contract servicer, shall service and administer
the
HELOCs in accordance with this Agreement and shall have full power and
authority, acting alone, to do or cause to be done any and all things in
connection with such servicing and administration which the Servicer may deem
necessary or desirable and consistent with the terms of this
Agreement.
Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary any
term of any HELOC or consent to the postponement of strict compliance with
any
such term or in any manner grant indulgence to any Mortgagor if in the
Servicer’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is in
accordance with Accepted Servicing Practices;
provided, however, that the Servicer shall not, without consent of Insurer,
permit any modification with respect to any HELOC that would change the Mortgage
Interest Rate
except as provided in the Loan Agreement,
defer
or forgive the payment thereof or of any principal or interest payments, reduce
the outstanding Principal
Balance or the Credit Limit (except with the Mortgagor's consent or as required
by Section 2.28 and except
for actual payments of principal), increase
the Credit Limit,
extend
the Draw
Period or final
maturity date on such HELOC
or refinance the HELOC for the Issuer.
Notwithstanding
the foregoing, the Servicer is permitted to make a modification, waiver or
amendment of a HELOC as described below.
The
Servicer is permitted to consent to the placement of a lien senior to that
of
any mortgage on a mortgage property related to a HELOC if (i) that new senior
mortgage lien secures a mortgage loan that refinances an existing first mortgage
loan, and (ii) the combined loan-to-value ratio of the new mortgage loan does
not exceed the combined loan-to-value ratio as of the initial cut-off date
of
the mortgage loan to be replaced.
The
Servicer is permitted to increase the credit limit on any HELOC at any time
if
(i) a new appraisal is obtained and the combined loan-to-value ratio of the
HELOC after giving effect to the increase will not be greater than its combined
loan-to-value ratio as of the relevant cut-off date, (ii) the increase is
consistent with the Servicer’s underwriting policies, and (iii) either the
related Loan Agreement allows the borrower to unilaterally increase the credit
limit, the credit limit increase is made within 90 days of the cut-off date,
or
the Servicer purchases the HELOC from the Issuer.
In
addition, the Servicer is permitted to agree to changes in the terms of a HELOC
(other than changes referred to above) at the request of the Mortgagor at any
time if the changes (i) do not materially and adversely affect the interests
of
the Notes or the Insurer, (ii) are consistent with prudent and customary
business practice, and (iii) do not cause certain adverse tax
consequences.
In
addition, the Servicer is permitted to solicit Mortgagors to change any other
terms of the related HELOCs at any time if the changes (i) do not materially
and
adversely affect the interests of the holders of the Notes or the Insurer,
(ii)
are consistent with prudent and customary business practice as evidenced by
a
certificate signed by an officer of the Servicer, and (iii) do not cause certain
adverse tax consequences.
Without
limiting the generality of the foregoing, the Servicer shall continue, and
is
hereby authorized and empowered, to execute and deliver on behalf of itself,
the
Issuer and the Indenture Trustee, all instruments of satisfaction or
cancellation, or of partial or full release, discharge and all other comparable
instruments, with respect to the HELOCs and with respect to the Mortgaged
Property. If reasonably required by the Servicer, the Securities Administrator,
the Issuer or the Indenture Trustee, as applicable, shall furnish the Servicer
with any powers of attorney and other documents necessary or appropriate to
enable the Servicer to carry out its servicing and administrative duties under
this Agreement.
In
servicing and administering the HELOCs, the Servicer shall employ procedures
including collection procedures and exercise the same care that it customarily
employs and exercises in servicing and administering HELOCs for its own account
giving due consideration to Accepted Servicing Practices and the Issuer’s
reliance on the Servicer.
Section
2.02 Collection
of HELOC Payments.
Continuously
from the date hereof until the principal and interest on all HELOCs are paid
in
full, the Servicer shall proceed diligently to collect all payments due under
each HELOC when the same shall become due and payable and shall, to the extent
such procedures shall be consistent with this Agreement, follow such collection
procedures as it follows with respect to HELOCs comparable to the HELOCs and
held for its own or
its Affiliates' account.
Section
2.03 Realization
Upon Defaulted HELOCs.
(a) The
Servicer shall use its best efforts, consistent with the procedures that the
Servicer would use in servicing loans for its own account, to foreclose upon
or
otherwise comparably convert the ownership of such Mortgaged Properties as
come
into and continue in default and as to which no satisfactory arrangements can
be
made for collection of delinquent payments pursuant to Section 2.01. The
Servicer shall use its best efforts to realize upon Defaulted
HELOCs
in such a manner as is
in
accordance with Accepted Servicing Practices,
taking
into account, among other things, the timing of foreclosure proceedings. The
foregoing is subject to the provisions that, in any case in which Mortgaged
Property shall have suffered damage, the Servicer shall not be required to
expend its own funds toward the restoration of such property in excess of
$5,000
unless
it shall determine in its discretion (i) that such restoration will increase
the
proceeds of liquidation of the related HELOC to Noteholders after reimbursement
to itself for such expenses, and (ii) that such expenses will be recoverable
by
the Servicer through Insurance Proceeds or Liquidation Proceeds from the related
Mortgaged Property, as contemplated in Section 2.05. In the event that any
payment due under any HELOC is not paid when the same becomes due and payable,
or in the event the Mortgagor fails to perform any other covenant or obligation
under the HELOC and such failure continues beyond any applicable grace period,
the Servicer shall take action pursuant to Accepted Servicing Practices.
The
Servicer
shall commence foreclosure proceedings
in
accordance with Accepted Servicing Practices.
The
Servicer shall notify the Issuer and the Securities Administrator in writing
of
the commencement of foreclosure proceedings. In such connection, the Servicer
shall be responsible for all costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
thereof from the related Mortgaged Property, as contemplated in Section
2.05.
(b) Servicer
shall have no obligation to take any action with respect to the presence of
toxic or hazardous substances on the related Mortgaged Property..
(c) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds or
Liquidation Proceeds in respect of any HELOC, will be applied in the following
order of priority: first, to reimburse the Servicer for any related unreimbursed
Servicing Advances, pursuant to Section 2.05(iii); second, to accrued and unpaid
interest on the HELOC, to the date of the Final Recovery Determination, or
to
the Due Date prior to the Distribution Date on which such amounts are to be
distributed if not in connection with a Final Recovery Determination; and third,
as a recovery of principal of the HELOC. If the amount of the recovery so
allocated to interest is less than the full amount of accrued and unpaid
interest due on such HELOC, the amount of such recovery will be allocated by
the
Servicer as follows: first, to unpaid Servicing Fees; and second, to the balance
of the interest then due and owing. The portion of the recovery so allocated
to
unpaid Servicing Fees shall be reimbursed to the Servicer pursuant to Section
2.05(iii).
(d) With
respect to any HELOC, if Servicer determines that no significant recovery is
possible through foreclosure proceedings or other liquidation of the related
Mortgaged Property, it will be obligated to charge off the related HELOC no
later than the time such HELOC becomes 180 days delinquent (each such HELOC,
a
“Charged-off
Loan”).
Once
a HELOC has been charged off, Servicer will not be entitled to any additional
servicing compensation, and Servicer will follow the procedures described
below.
Servicer
will not be entitled to any Servicing Fees or reimbursement of expenses in
connection with any Charged Off Loans except to the extent of funds available
from the aggregate amount of recoveries on such Charged Off Loan which may
be
paid to Servicer in respect of any accrued and unpaid Servicing Fees. Servicer
will only be entitled to previously accrued Servicing Fees on any such Charged
Off Loans and will not be entitled to receive any future unaccrued Servicing
Fees or expenses from collections on such Charged Off Loans. Any recoveries
on
such Charged Off Loans (net of any such previously accrued and unpaid Servicing
Fees) will be treated as Liquidation Proceeds distributable to the Securities
Administrator.
The
Servicer may designate any servicer to service any such Charged Off Loan and
may
sell any such Charged Off Loan to a third party.
Section
2.04 Establishment
of Custodial Accounts; Deposits in Custodial Accounts.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each HELOC separate and apart from any of its own funds and general assets
and
shall establish and maintain one or more Custodial Accounts, in the form of
time
deposit or demand accounts. The creation of any Custodial Account shall be
evidenced by a Custodial Account Letter Agreement in the form of Exhibit
1.
The
Servicer shall deposit in the Custodial Account on a daily basis, and retain
therein the following payments and collections received by it subsequent to
the
Cut-off Date, or received by it prior to the Cut-off Date but allocable to
a
period subsequent thereto, other than (a) in respect of principal and interest
on the HELOCs due on or before the Cut-off Date and (b) with
respect to any Collection Period after the Managed Amortization Period, the
RAP
Draw Repayment Amount and the interest portion of any RAP Draw Repayment Amount
for each Payment Date:
(i) all
payments on account of principal on the HELOCs;
(ii) all
payments on account of interest on the HELOCs;
(iii) all
Liquidation Proceeds;
(iv) all
Insurance Proceeds including amounts required to be deposited pursuant to
Sections 2.10, other than proceeds to be held in the Escrow Account and applied
to the restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with the Servicer’s normal servicing procedures, the
loan documents or applicable law;
(v) [Reserved];
(vi) all
Condemnation Proceeds affecting any Mortgaged Property which are not released
to
the Mortgagor in accordance with the Servicer’s normal servicing procedures, the
loan documents or applicable law;
(vii) all
proceeds of any HELOC repurchased in accordance with the HELOC Purchase
Agreement;
(viii) any
amounts required to be deposited by the Servicer pursuant to Section 2.10 in
connection with the deductible clause in any blanket hazard insurance policy.
Such deposit shall be made from the Servicer’s own funds, without reimbursement
therefor;
(ix) any
amounts required to be deposited by the Servicer in connection with any REO
Property pursuant to Section 2.13; and
(x) any
amounts
required to be deposited in the Custodial Account pursuant to Sections 2.19
or
2.20.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges,
to the extent permitted by Section 2.01, need not be deposited by the Servicer
in the Custodial Account. Such Custodial Account shall be an Eligible Account.
Any interest or earnings on funds deposited in the Custodial Account by the
depository institution shall accrue to the benefit of the Servicer and the
Servicer shall be entitled to retain and withdraw such interest from the
Custodial Account pursuant to Section 2.05(iii). The Servicer shall give notice
to the Securities Administrator, the Indenture Trustee and the Insurer of the
location of the Custodial Account when established and prior to any change
thereof.
If
the balance on deposit in the Custodial Account exceeds $75,000 as of the
commencement of business on any Business Day and the Custodial Account
constitutes an Eligible Account solely pursuant to clause (ii) of the definition
of Eligible Account, the Servicer shall, on or before twelve o’clock noon
Eastern time on such Business Day, withdraw from the Custodial Account any
and
all amounts on deposit therein, net of amounts payable or reimburseable to
the
Servicer, and remit such amounts to the Securities Administrator by wire
transfer of immediately available funds.
Section
2.05 Permitted
Withdrawals From the Custodial Account.
The
Servicer may, from time to time, withdraw from the Custodial Account for the
following purposes:
(i) to
make
distributions to the Securities Administrator, for the benefit of
Securityholders, in the amounts and in the manner provided for in Section
2.14;
(ii) to
reimburse itself for any amounts deposited in the Custodial Account in
error;
(iii) to
reimburse itself for unreimbursed Servicing Advances, the Servicer’s right to
reimburse itself pursuant to this subclause (iii) with respect to any HELOC
being limited to related Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds and such other amounts as may be collected by the Servicer from the
Mortgagor or otherwise relating to the HELOC, it being understood that, in
the
case of such reimbursement, the Servicer’s right thereto shall be prior to the
rights of the Issuer, except that, where the Servicer is also the Originator
and
required to repurchase a HELOC, pursuant to the HELOC Purchase Agreement, the
Servicer’s right to such reimbursement shall be subsequent to the payment to the
Securities Administrator on behalf of the Issuer and the Indenture Trustee
of
the Repurchase Price pursuant to the HELOC Purchase Agreement and all other
amounts required to be remitted to the Securities Administrator on behalf of
the
Issuer and the Indenture Trustee with respect to such HELOCs;
(iv) to
pay to itself pursuant to Section 2.22 as servicing compensation (a)
any
interest earned on funds in the Custodial Account (all such interest to be
withdrawn monthly not later than each Distribution Date), and (b) the Servicing
Fee from that portion of any payments or recovery as to interest on the
HELOCs;
(v) to
pay to
itself with respect to each HELOC that has been repurchased pursuant to the
HELOC Purchase Agreement all amounts received thereon and not distributed as
of
the date on which the related Repurchase Price is determined;
(vi) to
fund
Additional Balances created during any Collection Period occurring during the
Managed Amortization Period with Principal Collections received and on deposit
in the Custodial Account during such Collection Period;
(vii) to
pay,
or to reimburse the Servicer for advances in respect of, expenses incurred
in
connection with any HELOC pursuant to Section 2.03(b), but only to the extent
of
amounts received in respect of the HELOCs to which such expense is attributable;
and
(viii) to
clear
and terminate the Custodial Account on the termination of this
Agreement.
The
Servicer shall keep and maintain separate accounting, on a HELOC by HELOC basis,
for the purpose of justifying any withdrawal from the Custodial Account pursuant
to such subclauses (ii) - (vii) above. The Servicer shall provide written
notification in the form of an Officers' Certificate to the Securities
Administrator, on or prior to the next succeeding Distribution Date, upon making
any withdrawals from the Custodial Account pursuant to subclause (vi)
above.
Section
2.06 Reserved.
Section
2.07 Reserved.
Section
2.08 Reserved.
Section
2.09 Transfer
of Accounts.
The
Servicer may transfer the Custodial Account to a different depository
institution from time to time. Such transfer shall be made only upon obtaining
the consent of the Insurer, which consent shall not be unreasonably withheld.
In
any case, the Custodial Account shall be an Eligible Account.
Section
2.10 Maintenance
of Hazard Insurance.
If
the Mortgaged Property is in an area identified on a Flood Hazard Boundary
Map
or Flood Insurance Rate Map issued by the Flood Emergency Management Agency
as
having special flood hazards and such flood insurance has been made available,
the Servicer will cause to be maintained a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
with a generally acceptable insurance carrier, in an amount representing
coverage not less than the lesser of (i) the outstanding principal balance
of
the HELOC or (ii) the maximum amount of insurance which is available under
the
National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of
1973, as amended. The Servicer also shall maintain on any REO Property,
to
the extent required and available under the National Flood Insurance Act of
1968
or the Flood Disaster Protection Act of 1973, as amended, flood insurance in
an
amount as provided above. Pursuant to Section 2.04, any amounts collected by
the
Servicer under any insurance
policy maintained by the Mortgagor may be
applied to the restoration or repair of the Mortgaged Property or REO Property,
or released to the Mortgagor in accordance with the Servicer’s normal servicing
procedures, shall be deposited in the Custodial Account, subject to withdrawal
pursuant to Section 2.05. It
is understood and agreed that no earthquake or other additional insurance need
be required by the Servicer of the Mortgagor or maintained on property acquired
in respect of the HELOC.
The Servicer shall not interfere with the Mortgagor’s freedom of choice in
selecting either his insurance carrier or agent, provided, however, that the
Servicer shall not accept any such insurance policies which are not in
compliance with applicable law and the related Loan Agreement.
Section
2.11 [Reserved.]
Section
2.12 Fidelity
Bond, Errors and Omissions Insurance.
The
Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with responsible
coverage
of
all
officers, employees or other persons acting in any capacity with regard to
the
HELOCs who
handle
funds, money, documents or
papers
relating to the HELOCs. The fidelity bond and errors and omissions insurance
policy
shall
be
in the form of the Mortgage Banker’s Blanket Bond or
acceptable equivalents and
shall
protect and insure the Servicer against losses, including forgery, theft,
embezzlement, fraud, errors and omissions and negligent acts of such
officers,
employees and other persons.
Such fidelity bond and
errors and omissions insurance policy
shall
also protect and insure the Servicer against losses in connection with the
release
or satisfaction of a HELOC without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section 2.12 shall
diminish or relieve the Servicer from its duties and obligations as set forth
in
this Agreement. The minimum coverage,
insurer, Best's ratings and maximum deductibles under such fidelity bond and
errors and omissions insurance policies shall be consistent with Accepted
Servicing Practices.
The
Servicer shall provide the Insurer (upon reasonable request) with any copies
of
such insurance policies and fidelity bond.
Section
2.13 Title,
Management and Disposition of REO Property.
In
the event that title to the Mortgaged Property is acquired in foreclosure or
by
deed in lieu of foreclosure, the deed or certificate of sale shall be taken
in
the name of the person designated by the Securities Administrator. Any Person
or
Persons holding such title other than the Indenture Trustee shall acknowledge
in
writing that such title is being held as nominee for the benefit of the
Indenture Trustee.
The
Servicer shall either itself or through an agent selected by the Servicer,
manage, conserve, protect and operate each REO Property (and may temporarily
rent the same) in the same manner that it manages, conserves, protects and
operates other foreclosed property for its own account, and in the same manner
that similar property in the same locality as the REO Property is managed.
The
Servicer shall manage, conserve, protect and operate each REO Property in a
manner which does not cause such REO Property to fail to qualify as “foreclosure
property” within the meaning of Section 860G(a)(8) of the Code or result in the
receipt by such REMIC of any “income from non-permitted assets” within the
meaning of Section 860F(a)(2)(B) of the Code or any “net income from foreclosure
property” within the meaning of Section 860G(c)(2) of the Code. The Servicer
shall cause each REO Property to be inspected promptly upon the acquisition
of
title thereto and shall cause each REO Property to be inspected at least
annually thereafter. The Servicer shall make or cause to be made a written
report of each such inspection. Such reports shall be retained in the Mortgage
File and copies thereof shall be forwarded by the Servicer to the Securities
Administrator. The Servicer shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within one year after title has been taken to such REO Property, unless the
Servicer determines, and gives appropriate notice to the Securities
Administrator, that a longer period is necessary for the orderly liquidation
of
such REO Property. Notwithstanding the foregoing, such REO Property shall be
disposed of before the close of the third taxable year following the taxable
year in which the HELOC became an REO Property, unless the Servicer provides
to
the Issuer, the Indenture Trustee and the Securities Administrator an opinion
of
counsel to the effect that the holding of such REO Property subsequent to the
close of the third taxable year following the taxable year in which the HELOC
became an REO Property, will not result in the imposition of taxes on
"prohibited transactions" as defined in Section 860F of the Code, or cause
any
REMIC to fail to qualify as a REMIC at any time that certificates are
outstanding. Servicer shall manage, conserve, protect and operate each such
REO
Property for the securityholders solely for the purpose of its prompt
disposition and sale in a manner which does not cause such property to fail
to
qualify as "foreclosure property" within the meaning of Section 860F(a)(2)(E)
of
the Code, or any "net income from foreclosure property" which is subject to
taxation under the REMIC provisions of the Code. Pursuant to its efforts to
sell
such property, the Servicer shall either itself or through an agent selected
by
Servicer, protect and conserve such property in the same manner and to such
an
extent as is customary in the locality where such property is located.
Additionally, Servicer shall perform the tax withholding and reporting related
to Sections 1445 and 6050J of the Code.
With
respect to each REO Property, the Servicer shall segregate and hold all funds
collected and received in connection with the operation of the REO Property
separate and apart from its own funds or general assets and shall establish
and
maintain a separate REO Account for each REO Property in the form of a
non-interest bearing demand account, unless an Opinion of Counsel is obtained
by
the Servicer to the effect that the classification as a grantor trust or REMIC
for federal income tax purposes of the arrangement under which the HELOCs and
the REO Property is held will not be adversely affected by holding such funds
in
another manner. Each REO Account shall be established with the Servicer or,
with
the prior consent of the Rating Agencies, with a commercial bank, a mutual
savings bank or a savings association. The creation of any REO Account shall
be
evidenced by a letter agreement substantially in the form of the Custodial
Account Letter Agreement attached as Exhibit 1 hereto. An original of such
letter agreement shall be furnished to any Rating Agency upon
request.
The
Servicer shall deposit or cause to be deposited, on a daily basis in each REO
Account all revenues received with respect to the related REO Property and
shall
withdraw therefrom funds necessary for the proper operation, management and
maintenance of the REO Property, including the cost of maintaining any hazard
insurance pursuant to Section 2.10 hereof and the fees of any managing agent
acting on behalf of the Servicer. The Servicer shall not be entitled to retain
interest paid or other earnings, if any, on funds deposited in such REO Account.
On or before each Distribution Date, the Servicer shall withdraw from each
REO
Account and deposit into the Custodial Account the net income from the REO
Property on deposit in the REO Account.
The
Servicer shall furnish to the Securities Administrator and the Insurer on each
Distribution Date, an operating statement for each REO Property covering the
operation of each REO Property for the previous month. Such operating statement
shall be accompanied by such other information as the Securities Administrator
shall reasonably request. Together with such statement, the Servicer shall
furnish to the Securities Administrator a statement covering the Servicer’s
efforts in connection with the sale of such REO Property and any rental of
such
REO Property incidental to the sale thereof for the previous month.
Each
REO Disposition shall be carried out by the Servicer at such price and upon
such
terms and conditions as the Servicer deems to be in accordance
with Accepted Servicing Practices and in the best interests of Securityholders.
If
as of
the date title to any REO Property was acquired by the Servicer there were
outstanding unreimbursed Servicing Advances with respect to the REO Property,
the Servicer, upon an REO Disposition of such REO Property, shall be entitled
to
reimbursement for any related unreimbursed Servicing Advances from proceeds
received in connection with such REO Disposition. The proceeds from the REO
Disposition, net of any payment to the Servicer as provided above, shall be
deposited in the REO Account and shall be transferred to the Custodial Account
prior to the next following Distribution Date for distribution on such
Distribution Date in accordance with Section 2.14.
Section
2.14 Distributions.
On
each Distribution Date, the Servicer shall distribute to the Securities
Administrator all amounts credited to the Custodial Account as of the close
of
business on the preceding Business Day, net of charges against or withdrawals
from the Custodial Account pursuant to Section 2.05.
All
distributions made to the Securities Administrator on each Distribution Date
shall be made by wire transfer of immediately available funds to the Payment
Account.
With
respect to any remittance received by the Securities Administrator on or after
the second Business Day following the Business Day on which such payment was
due, the Servicer shall remit to the Securities Administrator interest on any
such late payment at an annual rate equal to the rate of interest as is publicly
announced from time to time at its principal office by JPMorgan Chase Bank,
New
York, New York, as its prime lending rate, adjusted as of the date of each
change, plus three percentage points, but in no event greater than the maximum
amount permitted by applicable law. Such interest shall be paid by the Servicer
to the Securities Administrator on the date such late payment is made and shall
cover the period commencing with the day following such second Business Day
and
ending with the Business Day on which such payment is made, both inclusive.
Such
interest shall be remitted along with such late payment. The payment by the
Servicer of any such interest shall not be deemed an extension of time for
payment or a waiver of any Event of Default by the Servicer.
Section
2.15 Remittance
Reports.
No
later than the seventh Business Day of each month, the Servicer shall furnish
to
the Securities Administrator a computer tape containing, and a hard copy of,
the
monthly data. On each Distribution Date, the Servicer shall deliver to the
Securities Administrator by telecopy (or by such other means as the Servicer
and
the Securities Administrator may agree from time to time) a computer tape
containing, and a hard copy of, the determination data with respect to such
Distribution Date, together with such other information with respect to the
HELOCs as the Securities Administrator may reasonably require to allocate
distributions made pursuant to this Agreement and provide appropriate statements
with respect to such distributions(the “Remittance
Report”).
On
the same date, the Servicer shall forward to the Securities Administrator by
overnight mail a computer readable magnetic tape containing the information
set
forth in the Remittance Report with respect to such Distribution
Date.
Section
2.16 Statements
to the Securities Administrator.
Not
later than fifteen days after each Distribution Date, the Servicer shall forward
to the Securities Administrator or its designee and the Insurer a statement
prepared by the Servicer setting forth the status of the Custodial Account
as of
the close of business on such Distribution Date and showing, for the period
covered by such statement, the aggregate amount of deposits into and withdrawals
from the Custodial Account of each category of deposit specified in Section
2.04
and each category of withdrawal specified in Section 2.05.
In
addition, not more than sixty days after the end of each calendar year, the
Servicer shall furnish to each Person who was the Securities Administrator
at
any time during such calendar year, (i) as to the aggregate of remittances
for
the applicable portion of such year, an annual statement in accordance with
the
requirements of applicable federal income tax law, and (ii) listing of the
principal balances of the HELOCs outstanding at the end of such calendar
year.
The
Servicer shall provide to Securities Administrator the information necessary
for
Securities Administrator to prepare and file any and all tax returns,
information statements or other filings required to be delivered to any
governmental taxing authority or to any Securities Administrator pursuant to
any
applicable law with respect to the HELOCs and the transactions contemplated
hereby. In addition, the Servicer shall provide the Securities Administrator
with such information concerning the HELOCs as is necessary for the Securities
Administrator to prepare the federal income tax return of the REMIC as the
Securities Administrator may reasonably request from time to time.
Section
2.17 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 2.02, with respect to any
REO
Property, the Servicer shall furnish to the Securities Administrator and the
Insurer a statement covering the Servicer’s efforts in connection with the sale
of such REO Property and any rental of such REO Property incidental to the
sale
thereof for the previous month, together with the operating statement. Such
statement shall be accompanied by such other information as the Securities
Administrator shall reasonably request.
Section
2.18 Liquidation
Reports.
Upon
the foreclosure sale of any Mortgaged Property or the acquisition thereof by
the
Securities Administrator pursuant to a deed-in-lieu of foreclosure, the Servicer
shall submit to the Securities Administrator a liquidation report with respect
to such Mortgaged Property.
Section
2.19 [Reserved].
Section
2.20 Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the payment in full of any HELOC, or the receipt by the Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Servicer will immediately notify the Securities Administrator
by a certification of a servicing officer of the Servicer (a “Servicing
Officer”),
which
certification shall include a statement to the effect that all amounts received
or to be received in connection with such payment which are required to be
deposited in the Custodial Account pursuant to Section 2.04 have been or will
be
so deposited, and shall request execution of any document necessary to satisfy
the HELOC and delivery to it of the portion of the Mortgage File held by the
Custodian. Upon receipt of such certification and request, the Custodian
pursuant to the Custodial Agreement, shall promptly release the related mortgage
documents to the Servicer and the Servicer shall prepare and process any
satisfaction or release. No expense incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Custodial
Account or the Custodian.
In
the
event the Servicer satisfies or releases a Mortgage without having obtained
payment in full of the indebtedness secured by the Mortgage or should it
otherwise prejudice any right the Issuer or the Indenture Trustee may have
under
the mortgage instruments, the Servicer, upon written demand, shall remit to
the
Securities Administrator the then outstanding principal balance of the related
HELOC by deposit thereof in the Custodial Account. Thereupon the Securities
Administrator and the Indenture Trustee shall take all necessary actions to
reassign any interest that the Issuer may have in the HELOC to
Servicer.
From
time
to time and as appropriate for the servicing or foreclosure of the HELOC, the
Indenture Trustee, or the Custodian on its behalf, shall, upon request of the
Servicer and delivery to the Custodian of a servicing receipt signed by a
Servicing Officer, release the requested portion of the Mortgage File held
by
the Indenture Trustee, or the Custodian on its behalf, to the Servicer. Such
servicing receipt shall obligate the Servicer to return the related Mortgage
documents to the Custodian when the need therefor by the Servicer no longer
exists, unless the HELOC has been liquidated and the Liquidation Proceeds
relating to the HELOC have been deposited in the Custodial Account or the
Mortgage File or such document has been delivered to an attorney, or to a public
trustee or other public official as required by law, for purposes of initiating
or pursuing legal action or other proceedings for the foreclosure of the
Mortgaged Property either judicially or non-judicially, and the Servicer has
delivered to the Indenture Trustee, or the Custodian on its behalf, a
certificate of a Servicing Officer certifying as to the name and address of
the
Person to which such Mortgage File or such document was delivered and the
purpose or purposes of such delivery. Upon receipt of a certificate of a
Servicing Officer stating that such HELOC was liquidated, the servicing receipt
shall be released by the Custodian to the Servicer.
Section
2.21 [Reserved].
Section
2.22 Servicing
Compensation.
As
compensation for its services hereunder, the Servicer shall, subject to Section
2.04(iv), be
entitled to withdraw from the Custodial Account or to retain from interest
payments on the HELOCs the amounts provided for as the Servicer’s Servicing Fee.
Additional servicing compensation in the form of assumption fees, as provided
in
Section 2.19, and late payment charges and similar ancillary servicing
compensation shall be retained by the Servicer to the extent not required to
be
deposited in the Custodial Account. The Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement therefor except as specifically
provided for.
Section
2.23 Notification
of Adjustments.
On
each Adjustment Date, the Servicer shall make interest rate adjustments for
each
HELOC in compliance with the requirements of the related Mortgage and Loan
Agreement. The Servicer shall execute and deliver the notices required by each
Mortgage and Loan Agreement regarding interest rate adjustments. The Servicer
also shall provide timely notification to the Securities Administrator of all
applicable data and information regarding such interest rate adjustments and
the
Servicer’s methods of implementing such interest rate adjustments. Upon
a
claim
by
a
Mortgagor
or the
Securities Administrator that the Servicer has failed to adjust a Mortgage
Interest Rate or a Monthly Payment pursuant to the terms of the related Loan
Agreement and Mortgage, the Servicer shall immediately deposit in the Custodial
Account from its own funds the amount of any interest loss caused thereby
without reimbursement therefor. To
the
extent that the related Index is no longer available, the
Servicer
shall, in its reasonable discretion, determine a replacement Index in accordance
with applicable law and Accepted Servicing Practices.
Section
2.24 Servicer
Compliance Statement.
On
or before
March 1
of each calendar year, commencing in 2007, the Servicer shall deliver to the
Securities Administrator, the Insurer and the Depositor a statement of
compliance addressed to the Securities Administrator and the Depositor and
signed by an authorized officer of the Servicer, to the effect that (i) a review
of the Servicer’s activities during the immediately preceding calendar year (or
applicable portion thereof) and of its performance under this 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 Servicer has fulfilled
all of its obligations under this 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
2.25 Report
on Assessment of Compliance and Attestation.
(i) On
or
before March 1 of each calendar year, commencing in 2007, the Servicer
shall:
1. deliver
to the
Securities Administrator, the Insurer and
the Depositor a report (in form and substance reasonably satisfactory to the
Securities Administrator and such Depositor) regarding the Servicer’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
Securities Administrator and
the Depositor and signed by an authorized officer of the Servicer, and shall
address each of the Servicing Criteria specified in Exhibit 4 hereto on a
certification substantially in the form of Exhibit 3 hereto delivered to the
Securities
Administrator
concurrently with the execution of this Agreement;
2. deliver
to the Securities
Administrator, the Insurer
and the Depositor a report of a registered public accounting firm reasonably
acceptable to the
Securities Administrator and
the Depositor that attests to, and reports on, the assessment of compliance
made
by the Servicer 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;
3. cause
each Subservicer, and each Subcontractor determined by the Servicer pursuant
to
Section 2.29 to be “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB, to deliver to the
Securities Administrator and
the Depositor an assessment of compliance and accountants’ attestation as and
when provided in paragraphs (i) and (ii) of this Section; and
4. deliver
to the
Securities Administrator,
the Depositor and any other Person that will be responsible for signing the
certification (a “Sarbanes
Certification”)
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant
to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of the Depositor a
certification in the form attached hereto as Exhibit 3; provided that, except
to
the extent legally required, such certification delivered by the Servicer may
not be filed as an exhibit to, or included in, any offering document or
registration statement.
The
Servicer acknowledges that the parties identified in clause (i)(4) above may
rely on the certification provided by the Servicer pursuant to such clause
in
signing a Sarbanes Certification and filing such with the Commission. Neither
the
Securities Administrator nor
any Depositor will request delivery of a certification under clause (i)(4)
above
unless the Depositor is required under the Exchange Act to file an annual report
on Form 10-K with respect to Issuer and the assets included in the Trust
Estate.
(ii) Each
assessment of compliance provided by a Subservicer pursuant to Section
2.25(i)(1) shall address each of the Servicing Criteria specified in Exhibit
4
hereto on a certification substantially in the form of Exhibit 3 hereto
delivered to the Securities Administrator concurrently with the execution of
this Agreement or, in the case of a Subservicer subsequently appointed as such,
on or prior to the date of such appointment. An assessment of compliance
provided by a Subcontractor pursuant to Section 2.25(i)(3) need not address
any
elements of the Servicing Criteria other than those specified by the Servicer
pursuant to Section 2.29.
(iii) Unless
and until a Form 15 Suspension Notice shall have been filed, the
Servicer shall provide to the Securities Administrator within (i) five (5)
calendar days of the related Payment Date (or
if
not a Business Day, the immediately preceding Business Day),
with
respect to any items to be reported on Form 10-D, (ii) within three
(3)
Business Days after the occurrence of an event requiring disclosure on Form
8-K,
and
(iii) prior
to
March 1st
of each
year with
respect to any items to be reported on Form 10-K,
in each
case as is set forth in Exhibit 5 as the Servicer being the party responsible
for providing such information.
(iv) The
Servicer shall indemnify and hold harmless, and cause each Subservicer to
indemnify and hold harmless, the Depositor, the Insurer, the Sponsor, the
Indenture Trustee, the Securities Administrator and their respective officers,
directors, agents and affiliates, and such affiliates’ officers, directors and
agents (any such person, an “Indemnified
Party”)
from
and against any losses, damages, penalties, fines, forfeitures, reasonable
legal
fees and related costs, judgments and other costs and expenses arising out
of or
based upon a breach by the Servicer or any of its officers, directors, agents
or
affiliates of its obligations under Section 2.24 or this Section 2.25, or the
negligence, bad faith or willful misconduct of the Servicer in connection
therewith. If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Indemnified Party, then the Servicer agrees
that it shall contribute to the amount paid or payable by the Indemnified Party
as a result of the losses, claims, damages or liabilities of the Indemnified
Party in such proportion as is appropriate to reflect the relative fault of
the
Indemnified Party on the one hand and the Servicer in the other in connection
with a breach of the Servicer’s obligations under Section 2.24 or this Section
2.25, or the Servicer’s negligence, bad faith or willful misconduct in
connection therewith.
Section
2.26 Access
to Certain Documentation.
The
Servicer shall provide to the Office of Thrift Supervision, the FDIC and any
other federal or state banking or insurance regulatory authority that may
exercise authority over the Depositor, the Issuer, the Indenture Trustee or
the
Securities Administrator access to the documentation regarding the HELOCs
serviced by the Servicer required by applicable laws and regulations. Such
access shall be afforded without charge, but only upon reasonable request and
during normal business hours at the offices of the Servicer. In addition, access
to the documentation will be provided to the Securities Administrator, the
Indenture Trustee, the Insurer and any Person identified to the Servicer by
the
Securities Administrator, the Indenture Trustee, the Insurer without charge,
upon reasonable request during normal business hours at the offices of the
Servicer.
Section
2.27 Reports
and Returns to be Filed by the Servicer.
The
Servicer shall file information reports with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and information returns relating to
cancellation of indebtedness income with respect to any Mortgaged Property
as
required by Sections 6050H, 6050J and 6050P of the Code. Such reports shall
be
in form and substance sufficient to meet the reporting requirements imposed
by
such Sections 6050H, 6050J and 6050P of the Code.
Section
2.28 Subordination
of Lien Priority.
(a) The
Servicer shall not consent to the placement of a lien on the Mortgaged Property
senior to that of the Mortgage securing the HELOC unless (i) such action is
consistent with reasonable commercial practice and (ii) such consent is given
in
any one of the following situations:
(i) such
Mortgage succeeded to a first lien position after the related HELOC was conveyed
to the Issuer and, immediately following the placement of such senior lien,
such
Mortgage is in a second lien position and both (I) the outstanding principal
amount of the mortgage loan secured by such senior lien is no greater than
the
outstanding principal amount of the first mortgage loan secured by the Mortgaged
Property as of the date the related HELOC was conveyed to the Issuer and (II)
the updated CLTV of such HELOC is not greater than the CLTV of such HELOC as
of
the date such HELOC was conveyed to the Issuer; or
(ii) such
senior lien secures a mortgage loan that refinances an existing First Lien
and
(I) the outstanding principal amount of the replacement first mortgage loan
immediately following such refinancing is not greater than the outstanding
principal amount of such existing First Lien at the date of such refinancing
and
(II) the updated CLTV of the applicable HELOC is not greater than the CLTV
of
such HELOC as of the date such HELOC was conveyed to the Issuer.
(b) Notwithstanding
(a)(i) or (a)(ii) of this section, the Servicer shall not consent to the
placement of a lien on the Mortgaged Property senior to that of the Mortgage
securing the HELOC if:
(i) the
original term of the new senior lien is greater than the original term of the
prior senior lien;
(ii) the
new
senior lien is a balloon loan;
(iii) the
new
senior lien is a negatively amortizing loan;
(iv) the
new
senior lien has a higher coupon than the prior senior lien;
(v) the
new
senior lien is a cashout refinancing;
(vi) the
monthly payment on the new senior lien is greater than the monthly payment
of
the prior senior lien; or
(vii) the
debt
to income ratio of the new senior lien is greater than the debt to income ratio
of the prior senior lien.
Section
2.29 Sub-Servicing
Agreements Between the Servicer and Subservicers.
(a)
The Servicer, as servicer, may arrange for the subservicing of any HELOC by
a
Subservicer pursuant to a Sub-Servicing Agreement; provided that such
sub-servicing arrangement and the terms of the related Sub-Servicing Agreement
must provide for the servicing of such HELOCs in a manner consistent with the
servicing arrangements contemplated hereunder. Each Subservicer shall be
(i)
authorized
to transact business in the state or states where the related Mortgaged
Properties it is to service are situated, if and to the extent required by
applicable law to enable the Subservicer to perform its obligations hereunder
and under the Sub-Servicing Agreement
and (ii)
a Xxxxxxx Mac approved mortgage servicer.
Notwithstanding the provisions of any Sub-Servicing Agreement, any of the
provisions of this Agreement relating to agreements or arrangements between
the
Servicer or a Subservicer or reference to actions taken through the Servicer
or
otherwise, the Servicer shall remain obligated and liable to the Issuer, the
Indenture Trustee and Securityholders and their successors and assigns for
the
servicing and administration of the HELOCs in accordance with the provisions
of
this Agreement without diminution of such obligation or liability by virtue
of
such Sub-Servicing Agreements or arrangements or by virtue of indemnification
from the Subservicer and to the same extent and under the same terms and
conditions as if the Servicer alone were servicing and administering the HELOCs.
Every Sub-Servicing Agreement entered into by the Servicer shall contain a
provision giving the successor servicer the option to terminate such agreement
in the event a successor servicer is appointed. All actions of each Subservicer
performed pursuant to the related Sub-Servicing Agreement shall be performed
as
an agent of the Servicer with the same force and effect as if performed directly
by the Servicer.
(b)
The
Servicer and the Subservicers may enter into and make amendments to the
Sub-Servicing Agreements or enter into different forms of Sub-Servicing
Agreements; provided, however, that any such amendments or different forms
shall
be consistent with and not violate the provisions of this Agreement, and that
no
such amendment or different form shall be made or entered into which could
be
reasonably expected to be materially adverse to the interests of the Insurer
without the consent of the Insurer (unless the Policy has been canceled upon
the
payment in full of the Insured Securities or a Insurer Default has occurred
and
is continuing); provided, further, that the consent of the Certificate Insurer
shall not be required (i) to cure any ambiguity or defect in a Sub-Servicing
Agreement, (ii) to correct, modify or supplement any provisions of a
Sub-Servicing Agreement, or (iii) to make any other provisions with respect
to
matters or questions arising under a Sub-Servicing Agreement, which, in each
case, shall not be inconsistent with the provisions of this
Agreement.
(c)
For purposes of this Agreement, the Servicer shall be deemed to have received
any collections, recoveries or payments with respect to the HELOCs that are
received by a Subservicer regardless of whether such payments are remitted
by
the Subservicer to the Servicer.
(d)
Notwithstanding the foregoing, the Servicer shall not hire or otherwise utilize
the services of any Subservicer to fulfill any of the obligations of the
Servicer under this Agreement unless the Servicer complies with the provisions
of Section 2.34 of this Agreement. The Servicer 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 Servicer under this Agreement unless the Servicer
complies with the provisions of Section 2.34 of this Agreement.
Section
2.30 Successor
Subservicers.
Any
Sub-Servicing Agreement shall provide that the Servicer shall be entitled to
terminate any Sub-Servicing Agreement and to either itself directly service
the
related HELOCs or enter into a Sub-Servicing Agreement with a successor
Subservicer which qualifies under Section 2.29. Any Sub-Servicing Agreement
shall include the provision that such agreement may be immediately terminated
by
any successor to the Servicer without fee, in accordance with the terms of
this
Agreement, in the event that the Servicer (or any successor to the Servicer)
shall, for any reason, no longer be the servicer of the related HELOCs
(including termination due to an Event of Default). Notwithstanding the
foregoing, the Servicer shall not terminate any Sub-Servicing agreement without
the consent of the Insurer.
Section
2.31 No
Contractual Relationship Between Subservicer and Issuer.
Any
Sub-Servicing Agreement and any other transactions or services relating to
the
HELOCs involving a Subservicer shall be deemed to be between the Subservicer
and
the Servicer alone and neither the Issuer nor the Indenture Trustee shall be
deemed a party thereto and shall have no claims, rights, obligations, duties
or
liabilities with respect to any Subservicer except as set forth in Section
2.29.
Section
2.32 Assumption
or Termination of Sub-Servicing Agreement by Successor Servicer.
In
connection with the assumption of the responsibilities, duties and liabilities
and of the authority, power and rights of the Servicer hereunder by a successor
servicer pursuant to Section 16 of this Agreement, it is understood and agreed
that the Servicer’s rights and obligations under any Sub-Servicing Agreement
then in force between the Servicer and a Subservicer shall be assumed
simultaneously by such successor servicer without act or deed on the part of
such successor servicer; provided, however, that any successor servicer may
terminate the Subservicer.
The
Servicer shall, upon the reasonable request of the Issuer or the Securities
Administrator, but at its own expense, deliver to the assuming party documents
and records relating to each Sub-Servicing Agreement and an accounting of
amounts collected and held by it and otherwise use its best efforts to effect
the orderly and efficient transfer of the Sub-Servicing Agreements to the
assuming party.
Section
2.33 Compliance
with REMIC Provisions.
The
Servicer shall not take any action, cause any REMIC to take any action or fail
to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of any REMIC as a REMIC or (ii) result in the imposition of a tax upon
any REMIC (including but not limited to the tax on “prohibited transactions” as
defined in Section 860F(a)(2) of the Code and the tax on “contributions ” to a
REMIC set forth in Section 860G(d) of the Code) unless the Servicer has received
an Opinion of Counsel (at the expense of the party seeking to take such action)
to the effect that the contemplated action will not endanger such REMIC status
or result in the imposition of any such tax.
Section
2.34 Use
of
Subservicers and Subcontractors.
The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer as servicer under this Agreement
unless the Servicer complies with the provisions of paragraph (i) of this
Section. The Servicer 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
Servicer as servicer under this Agreement unless the Servicer complies with
the
provisions of paragraph (ii) of this Section.
It
shall not be necessary for the Servicer to seek the consent of the Issuer,
the
Insurer or the Depositor to the utilization of any Subservicer. The Servicer
shall cause any Subservicer used by the Servicer (or by any Subservicer) for
the
benefit of the Issuer, the Insurer or the Depositor to comply with the
provisions of this Section and with Sections 2.24 and 2.25 of this Agreement
to
the same extent as if such Subservicer were the Servicer. The Servicer shall
be
responsible for obtaining from each Subservicer and delivering to the Securities
Administrator, the Insurer or the Depositor any servicer compliance statement
required to be delivered by such Subservicer under Section 2.24, any assessment
of compliance and attestation required to be delivered by such Subservicer
under
Section 2.24 and any certification required to be delivered to the Person that
will be responsible for signing the Sarbanes Certification under Section 11.25
as and when required to be delivered.
(ii) It
shall not be necessary for the Servicer to seek the consent of the Issuer,
the
Insurer or the Depositor to the utilization of any Subcontractor. The Servicer
shall promptly upon request provide to the Securities Administrator and the
Depositor (or any designee of the Depositor, such as an administrator) a written
description (in form and substance satisfactory to the Securities Administrator
and the Depositor) of the role and function of each Subcontractor utilized
by
the Servicer 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 Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Issuer, the Insurer
and
the Depositor to comply with the provisions of Sections 2.24 and 2.25 of this
Agreement to the same extent as if such Subcontractor were the Servicer. The
Servicer shall be responsible for obtaining from each Subcontractor and
delivering to the Securities Administrator and the Depositor any assessment
of
compliance and attestation required to be delivered by such Subcontractor under
Section 2.25, in each case as and when required to be delivered.
ARTICLE
III
THE
SERVICER.
Section
3.01 Indemnification
by the Servicer.
The
Servicer shall indemnify the
Depositor, the Issuer, the Indenture Trustee, the Insurer and the Securities
Administrator and
hold them harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses that the Depositor,
the Issuer, the Indenture Trustee and the Securities Administrator may
sustain in any way related to the failure of the Servicer to perform its
obligations under this Agreement including but not limited to its obligation
to
service and administer the HELOCs in strict compliance with the terms of this
Agreement; except to the extent of such indemnitee’s gross negligence or bad
faith.
Section
3.02 Merger
or Consolidation of the Servicer.
The
Servicer shall keep in full force and effect its existence, rights and
franchises as a corporation under the laws of the state of its incorporation
except as permitted herein, and shall obtain and preserve its qualification
to
do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the HELOCs, and to enable the
Servicer to perform its duties under this Agreement.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, or any Person succeeding to the business of the Servicer,
shall be the successor of the Servicer hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or surviving Person shall be an institution whose deposits are insured
by FDIC or a Servicer whose business is the origination and servicing of
HELOCs
and shall satisfy any requirements of Section 4.03 with respect to the
qualifications of a successor to the Servicer.
Section
3.03 Limitation
on Liability of the Servicer and Others.
Neither
the Servicer nor any of the officers, employees or agents of the Servicer shall
be under any liability to the Issuer, the Insurer, the Indenture Trustee or
the
Securityholders for any action taken or for refraining from the taking of any
action in good faith in connection with the servicing of the HELOCs pursuant
to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Servicer or any such person against any breach
of warranties or representations made herein, or failure to perform its
obligations in strict compliance with any standard of care set forth in this
Agreement, or any liability which would otherwise be imposed by reason of any
breach of the terms and conditions of this Agreement. The Servicer and any
officer, employee or agent of the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder. The Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its obligation to sell or duty to service the HELOCs in accordance
with this Agreement and which in its opinion may result in its incurring any
expenses or liability; provided, however, that the Servicer may, with the
consent of the Insurer, undertake any such action which it may deem necessary
or
desirable in respect to this Agreement and the rights and duties of the parties
hereto. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities for
which
the Issuer shall be liable, the Servicer shall be entitled to reimbursement
therefor from the Trust Estate upon written demand to the Securities
Administrator except when such expenses, costs and liabilities are subject
to
the Servicer’s indemnification under Sections 3.01or 2.25.
Section
3.04 Servicer
Not to Resign.
The
Servicer shall not assign this Agreement or resign from the obligations and
duties hereby imposed on it except (i) upon the determination that its servicing
duties hereunder are no longer permissible under applicable law and such
incapacity cannot be cured by the Servicer in which event the Servicer may
resign as servicer
or
(ii) upon satisfaction of the following conditions: (a) the Servicer
has proposed a successor Servicer to the Indenture Trustee, the Securities
Administrator and the Depositor in writing and such proposed successor Servicer
is reasonably acceptable to the Depositor; and (b) each Rating Agency shall
have delivered a letter to the Indenture Trustee, the Securities Administrator
and the Depositor prior to the appointment of the successor Servicer stating
that the proposed appointment of such successor Servicer as Servicer hereunder
will not result in the reduction or withdrawal of the then current ratings
of
any of the Securities; provided, however, that no such resignation by the
Servicer shall become effective until such successor Servicer or, in the case
of
(i) above, the Securities Administrator shall have assumed the Servicer’s
responsibilities and obligations hereunder or the SecuritiesAdministrator shall
have designated a successor Servicer in accordance with Section 4.03. Any
such resignation shall not relieve the Servicer of responsibility for any of
the
obligations that survive the resignation or termination of the Servicer,
including, without limitation, Sections 4.03. Any determination permitting
the
resignation of the Servicer pursuant to clause (i) above shall be evidenced
by
an Opinion of Counsel obtained at the expense.
Any such determination permitting the resignation of the Servicer as servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Insurer which Opinion of Counsel shall be in form and substance acceptable
to
the Insurer and which shall be provided at the cost of the Servicer. No such
resignation shall become effective until a successor shall have assumed the
Servicer’s responsibilities and obligations hereunder in the manner provided in
Section 4.03.
Section
3.05 No
Transfer of Servicing.
With
respect to the retention of the Servicer to service the HELOCs during the
Preliminary Servicing Period, the Servicer acknowledges that the Issuer has
acted in reliance upon the Servicer’s independent status, the adequacy of its
servicing facilities, plan, personnel, records and procedures, its integrity,
reputation and financial standing and the continuance thereof. Without in any
way limiting the generality of this Section, the Servicer shall not either
assign this Agreement or the servicing hereunder or delegate its rights or
duties hereunder or any portion thereof, or sell or otherwise dispose of all
or
substantially all of its property or assets except in connection with this
Agreement.
Section
3.06 Funding
of Additional Balances.
With
respect to each Draw requested by a Mortgagor after the Cut-off Date, the
Servicer shall fund such Draw. Each
Draw
during the Managed Amortization Period shall first be funded from collections
of
principal on deposit in the Custodial Account without right of reimbursement
therefor. If during the Managed Amortization Period, the aggregate principal
amount of all Draws in respect of the HELOCs during a Collection Period exceed
the Principal Payment Amount in respect of the HELOCs for the immediately
following Payment Date, the Servicer shall
fund such Draw with its own funds (such amounts “Additional
Balance Advance Amounts”),
subject to reimbursement from amounts otherwise payable to the Class N
Certificateholders as set forth in Section 5.05 of the Trust Agreement.
The
Servicer shall deliver to the holder of the Class N Certificate, with a copy
to
the Securities Administrator, its monthly remittance report, which shall
indicate the aggregate Additional Balance Advance Amount funded by the Servicer
during such Managed Amortization Period. With respect to each
Draw requested by a Mortgagor during the Rapid Amortization Period, the Servicer
shall fund such Draw with its own funds, subject to reimbursement from future
deposits to the Custodial Account equal to the Servicer
Additional Balance Allocation Fraction
of the Principal Collections on the HELOCs received during the related
Collection Period. Under no circumstances shall the Indenture Trustee, the
Securities Administrator or the Issuer be required to fund any such
Draws.
ARTICLE
IV
DEFAULT.
Section
4.01 Events
of Default.
In
case one or more of the following Events of Default by the Servicer shall occur
and be continuing, that is to say:
(i) any
failure by the Servicer to remit to the Securities Administrator any payment
required to be made under the terms of this Agreement which continues unremedied
for a period of one Business Day after the earlier of the Servicer’s actual
knowledge or the date upon which written notice of such failure, requiring
the
same to be remedied, shall have been given to the Servicer by the Securities
Administrator; or
(ii) failure
on the part of the Servicer duly to observe or perform in any material respect
any other of the covenants or agreements on the part of the Servicer set forth
in this Agreement or in the Custodial Agreement which continues unremedied
for a
period of thirty days (except that such number of days shall be fifteen in
the
case of a failure to pay any premium for any insurance policy required to be
maintained under this Agreement) after the earlier of the Servicer’s actual
knowledge or the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Servicer by the Securities
Administrator or by the Custodian; or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
bankruptcy, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, shall
have been entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty days;
or
(iv) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshalling
of
assets and liabilities or similar proceedings of or relating to the Servicer
or
of or relating to all or substantially all of its property; or
(v) the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vi) the
Servicer fails to duly perform, within the required time period, its obligations
under Sections 2.24, 2.25 or 2.26 hereof, which failure continues unremedied
for
a period of three (3) days after the earlier of the Servicer’s actual knowledge
or the date on which written notice of such failure, requiring the same to
be
remedied, shall have been given to the Servicer by any party to this Agreement
or by any master servicer responsible for master servicing the HELOCs pursuant
to a securitization of such HELOCs; or
(vii) the
failure of the Servicer Termination Test.
“then,
so
long as an Event of Default remains unremedied, the Majority Holder may
terminate all of the rights and certain obligations of the Servicer under this
Agreement and in and to the HELOCs, whereupon the collection and servicing
responsibilities of the Servicer shall be transferred to the Securities
Administrator or another successor as provided in Section 4.03 of this
Agreement; provided, however, that the Securities Administrator or such other
successor shall not be liable for acts or omissions of the Servicer or any
other
prior servicer.
Section
4.02 Waiver
of Defaults.
The
Majority Holder may waive any default or Event of Default by the Servicer in
the
performance of its obligations hereunder, except that a default in the making
of
any required deposit to the Securities Administrator that would result in a
failure of the Securities Administrator to make any required payment of
principal of or interest on the Securities may only be waived with the consent
of 100% of the affected Securityholders. Upon
any such waiver of a past default, such default shall cease to exist, and any
Event of Default (except
an
Event of Default under Section 15.01(vi)) arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so
waived.
Section
4.03 Successor
to the Servicer.
In
the
event that the Securities Administrator is obligated to succeed the Servicer
but
is unable or unwilling so to act, it may appoint, or petition a court of
competent jurisdiction for the appointment of, a servicer with all licenses
and
permits required to perform its obligations under this Agreement and having
a
net worth of at least $50,000,000 and acceptable to the Insurer. Pending that
appointment, the Securities Administrator will be obligated to act in such
capacity unless prohibited by law; provided, however, that the Securities
Administrator shall not be liable for any failure to act in such capacity that
results from the act or omission of any predecessor servicer, including, without
limitation, any failure of the Servicer or any predecessor servicer to provide
information or remit funds when required or any failure by the predecessor
servicer to cooperate with a transfer of such servicing responsibilities. The
Securities Administrator or other successor servicer will be entitled to receive
the same compensation that the Servicer would otherwise have received or lesser
compensation as the Indenture Trustee, the Insurer and the Securities
Administrator or such successor may agree.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Servicer, the Issuer, the Insurer and to the Indenture Trustee an instrument
accepting such appointment, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer, with like effect as if originally named as a party
to this Agreement and the Custodial Agreement provided, however, that such
successor shall not assume, and
Servicer shall indemnify such successor for, any
and all liabilities arising out of the Servicer’s acts as servicer. Any
termination of the Servicer as servicer pursuant to Section 4.01 shall not
affect any claims that the Issuer, the Securities Administrator or the Indenture
Trustee may have against the Servicer arising prior to any such termination
or
resignation or remedies with respect to such claims.
The
Servicer shall timely deliver to the successor the funds in the Custodial
Account, REO Account and the Mortgage
Files and related documents and statements held by it hereunder and the Servicer
shall account for all funds. The Servicer shall execute and deliver such
instruments and do such other things all as may reasonably be required to more
fully and definitely vest and confirm in the successor all such rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer as
servicer. The successor shall make arrangements as it may deem appropriate
to
reimburse the Servicer for amounts the Servicer actually expended as servicer
pursuant to this Agreement which the successor is entitled to retain hereunder
and which would otherwise have been recovered by the Servicer pursuant to this
Agreement but for the appointment of the successor servicer.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
Section
5.01 Servicer
warrants and represents to, and covenants with, the Issuer, the Indenture
Trustee, the Insurer and the Securities Administrator as of the date
hereof:
(a) Servicer
is a national banking association duly organized, validly existing and in good
standing under the laws of the United States of America, and has all requisite
power and authority to service the HELOCs and otherwise to perform its
obligations under this Servicing Agreement;
(b) Servicer
has full corporate power and authority to execute, deliver and perform its
obligations under this Agreement, and to consummate the transactions set forth
herein. The execution by the Servicer of this Agreement and the consummation
of
the transactions contemplated by this Agreement is in the ordinary course of
Servicer’s business and will not conflict with, or result in a breach of, any of
the terms, conditions or provisions of Servicer’s charter or by-laws or any
legal restriction, or any material agreement or instrument to which Servicer
is
now a party or by which it is bound, or result in the violation of any law,
rule, regulation, order, judgment or decree to which Servicer or its property
is
subject. The execution, delivery and performance by Servicer of this Agreement
and the consummation by it of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action on the part of Servicer.
This
Agreement has been duly executed and delivered by Servicer, and, upon the due
authorization, execution and delivery by Assignor and Assignee, will constitute
the valid and legally binding obligation of Servicer, enforceable against
Servicer in accordance with its terms except as enforceability may be limited
by
bankruptcy, reorganization, insolvency, moratorium or other similar laws now
or
hereafter in effect relating to creditors’ rights generally, and by general
principles of equity regardless of whether enforceability is considered in
a
proceeding in equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
the Servicer in connection with the execution, delivery or performance by the
Servicer of this Agreement, or the consummation by it of the transactions
contemplated hereby;
(d) There
is
no action, suit, proceeding or investigation pending or threatened against
the
Servicer, before any court, administrative agency or other tribunal, which
would
draw into question the validity of this Servicing Agreement, or which, either
in
any one instance or in the aggregate, would result in any material adverse
change in the ability of the Servicer to perform its obligations under this
Servicing Agreement, and the Servicer is solvent;
ARTICLE
VI
MISCELLANEOUS.
Section
6.01 Termination
of Servicing Obligations.
The
respective obligations and responsibilities of the Servicer, as servicer
hereunder, shall terminate upon the distribution to the Securities Administrator
of the final payment or liquidation with respect to the last HELOC (or advances
of same by the Servicer) or the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure with respect to the last HELOC and
the remittance of all funds due hereunder unless terminated with respect to
all
or a portion of the HELOCs on an earlier date at the option of the Servicer
pursuant to Section 8.07 of the Indenture. Upon termination pursuant to this
Section, the Servicer shall prepare, execute and deliver, any and all documents
and other instruments, place in the Issuer's possession all Mortgage Files,
and
do or accomplish all other acts or things necessary or appropriate to effect
the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the HELOCs and related documents, at the Servicer’s
sole expense. The Servicer agrees to cooperate with the Securities
Administrator, the Indenture Trustee and such successor in effecting the
termination of the Servicer’s responsibilities and rights hereunder as servicer,
including, without limitation, the transfer to such successor for administration
by it of all cash amounts which shall at the time be credited by the Servicer
to
the Custodial Account, REO Account or Escrow Account or thereafter received
with
respect to the H
Section
6.02 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed, by registered or certified mail,
return receipt requested, or, if by other means, when received by the other
party at the address as follows:
(a)
if to
the Issuer:
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Mortgage Finance
(b)
if to
the Servicer:
National
City Bank
0000
Xxxx
Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attn: Xxxxxxx
X. Xxxxxx, Xx., Locator 01-2218
(c)
if to
the Securities Administrator:
Citibank,
N.A.
000
Xxxxxxxxx Xx., 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
(d)
if to
the Indenture Trustee:
U.S.
Bank
National Association
Xxx
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
(e)
if to
the Insurer:
Ambac
Assurance Corporation
Xxx
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx, 00000
Attention:
Risk management
Consumer
Asset Baked-Securities
Facsimile
No.: 000-000-0000
Confirmation
No.: 212-668-0340
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted
on
the return receipt)
Section
6.03 Severability.
Any
part, provision, representation or warranty of this Agreement which is
prohibited or which is held to be void or unenforceable shall be ineffective
to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty
of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any HELOC shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable
law,
the parties hereto waive any provision of law which prohibits or renders void
or
unenforceable any provision hereof. If the invalidity of any part, provision,
representation or warranty of this Agreement shall deprive any party of the
economic benefit intended to be conferred by this Agreement, the parties shall
negotiate, in good-faith, to develop a structure the economic effect of which
is
nearly as possible the same as the economic effect of this Agreement without
regard to such invalidity.
Section
6.04 Counterparts.
This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall
constitute one and the same instrument.
Section
6.05 Governing
Law.
The
Agreement shall be construed in accordance with the laws of the State of New
York without regard to any conflicts of law provisions and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with the laws of the State of New York, except to the extent preempted by
Federal law.
Section
6.06 Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
parties and their respective successors and assigns of the parties
hereto.
Section
6.07 Waivers.
No
term or provision of this Agreement may be waived or modified unless such waiver
or modification is in writing and signed by the party against whom such waiver
or modification is sought to be enforced.
Section
6.08 Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are an integral part of this Agreement.
Section
6.09 Nonsolicitation.
The
Servicer covenants and agrees that it shall not take any action to solicit
the
refinancing of any HELOC following the date hereof or provide information to
any
other entity to solicit the refinancing of any HELOC; provided that, the
foregoing shall not preclude the Servicer or
any
Affiliate of the Servicer from
engaging in solicitations to the general public by newspaper, radio, television
or other media which are not directed toward the Mortgagors or from refinancing
the HELOC of any Mortgagor who, without solicitation, contacts the Servicer
to
request the refinancing of the related HELOC.
Section
6.10 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(i) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(ii) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(iii) references
herein to “Articles,” “Sections,” “Sections,” “Paragraphs,” and other
Subdivisions without reference to a document are to designated Articles,
Sections, Sections, Paragraphs and other subdivisions of this
Agreement;
(iv) reference
to a Section without further reference to a Section is a reference to such
Section as contained in the same Section in which the reference appears, and
this rule shall also apply to Paragraphs and other subdivisions;
(v) the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(vi) the
term
“include” or “including” shall mean without limitation by reason of
enumeration.
Section
6.11 Reproduction
of Documents.
This
Agreement and all documents relating thereto, including, without limitation,
(a)
consents, waivers and modifications which may hereafter be executed, (b)
documents received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Section
6.12 Further
Agreements.
The
parties hereto each agree to execute and deliver to the other such reasonable
and appropriate additional documents, instruments or agreements as may be
necessary or appropriate to effectuate the purposes of this
Agreement.
Section
6.13 Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding of the parties
with
respect to the matters and transactions contemplated by this Agreement and,
except to the extent otherwise set forth in writing, supersedes any prior
agreement and understandings with respect to those matters and
transactions.
Section
6.14 Third-Party
Beneficiaries.
(a) The
Insurer is an express third-party beneficiary of this Agreement.
(b) The
Servicer or the Securities Administrator, as applicable, shall provide to the
Insurer copies of any report, notice, Opinion of Counsel, Officers’ Certificate,
request for consent or request for amendment to any document related hereto
promptly upon the Servicer’s or the Securities Administrator’s production or
receipt thereof, but only to the extent that such item is required to be
delivered to the Insurer hereunder.
The
Insurer shall not be entitled to exercise any of its rights hereunder so long
as
there exists a failure by the Insurer to make a required payment under the
Policy.
Section
6.15 Owner
Trustee.
Notwithstanding
anything contained herein to the contrary, this Agreement has been executed
by
Wilmington Trust Company not in its individual capacity but solely in its
capacity as Owner Trustee of the Issuer and in no event shall Wilmington Trust
Company in its individual capacity or as Owner Trustee of the Issuer have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Issuer or any other Person hereunder or other documents
delivered pursuant hereto, as to all of which recourse shall be had solely
to
the assets of the Trust. For all purposes of this Agreement, in the performance
of any duties or obligations of the Owner Trustee hereunder, the Owner Trustee
shall be entitled to the benefits of the terms and provisions of the Trust
Agreement of the Trust.
IN
WITNESS WHEREOF, the Servicer, the Issuer the Securities Administrator and
the
Indenture Trustee have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the date first above
written.
|
NATIONAL
CITY BANK
as
Servicer
|
|||||||||||||
|
By:
|
/s/
Xxxxxxx Xxxxxx Xx.
|
||||||||||||
|
Name:
|
Xxxxxxx
Xxxxxx Xx.
|
||||||||||||
|
Title:
|
Vice
President
|
||||||||||||
|
U.S.
BANK NATIONAL ASSOCIATION,
as
Indenture Trustee
|
|||||||||||||
|
By:
|
/s/
Xxxxx X’Xxxxx
|
||||||||||||
|
Name:
|
Xxxxx
X’Xxxxx
|
||||||||||||
|
Title:
|
Vice
President
|
||||||||||||
|
Issuer
|
|||||||||||||
|
By:
Wilmington Trust Company, not in its individual capacity, but solely
as
Owner Trustee of the Issuer
|
|||||||||||||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
||||||||||||
|
Name:
|
Xxxxxx
X. Xxxxx
|
||||||||||||
|
Title:
|
Senior
Financial Services Officer
|
||||||||||||
|
CITIBANK,
N.A., Securities Administrator
|
|||||||||||||
|
By:
|
/s/
Xxxxxxxx X. XxXxxxx
|
||||||||||||
|
Name:
|
Xxxxxxxx
X. XxXxxxx
|
||||||||||||
|
Title:
|
Vice
President
|
||||||||||||
EXHIBIT
1
CUSTODIAL
ACCOUNT LETTER AGREEMENT
_______________,
2005
To:___________________________
(the
“Depository”)
As
Servicer under the Servicing Agreement, dated as of May 1, 2006, we hereby
authorize and request you to establish an account, as a Custodial Account,
to be
designated as “National
City Bank, as servicer for U.S. Bank National Association, as indenture trustee
for the holders of Citigroup HELOC Trust 2006-NCB1, HELOC-Backed Notes, Series
2006-NCB1.”
All deposits in the account shall be subject to withdrawal therefrom by order
signed by the Servicer. You may refuse any deposit which would result in
violation of the requirement that the account be fully insured as described
below. This letter is submitted to you in duplicate. Please execute and return
one original to us.
|
National
City Bank,
Servicer
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
|
Date:
|
|||||||||||||
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ___________ at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
|
(Depository)
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
|
Date:
|
|||||||||||||
EXHIBIT
2
ESCROW
ACCOUNT LETTER AGREEMENT
_______________,
2005
To:___________________________
(the
“Depository”)
As
Servicer under the Master Loan Purchase and Servicing Agreement, dated as of
March 1, 2006, we hereby authorize and request you to establish an account,
as
an Escrow Account, to be designated as “National
City Bank, as servicer for U.S. Bank National Association, as indenture trustee
for the holders of Citigroup HELOC Trust 2006-NCB1, HELOC-Backed Notes, Series
2006-NCB1.”
All deposits in the account shall be subject to withdrawal therefrom by order
signed by the Servicer. You may refuse any deposit which would result in
violation of the requirement that the account be fully insured as described
below. This letter is submitted to you in duplicate. Please execute and return
one original to us.
|
National
City Bank,
Servicer
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
|
Date:
|
|||||||||||||
The
undersigned, as Depository, hereby certifies that the above-described account
has been established under Account Number ___________ at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”) or the Savings Association Insurance Fund (“SAIF”).
|
(Depository)
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
|
Date:
|
|||||||||||||
EXHIBIT
3
FORM
OF ANNUAL COMPLIANCE CERTIFICATION
Re: The
Servicing Agreement dated as of May 1, 2006, by and among Citigroup HELOC Trust
Series 2006-NCB1 (the “Issuer”), Citibank, N.A. (“the “Securities
Administrator”), U.S. Bank National Association (the “Indenture Trustee”) and
National City Bank, having an office at 0000 X. Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx
00000 (the “Servicer”).
I,
_____________________________________, the _______________________ of National
City Bank and, in such capacity, the officer in charge of the Servicer’s
responsibility on Exhibit 4 to the Agreement. I hereby certify to [the Issuer],
[the Depositor], [the Indenture Trustee] and the [Securities Administrator],
and
their officers, with the knowledge and intent that they will rely upon this
certification, that:
(i) I
have reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
other data, servicing reports, officer’s certificates and other information
relating to the performance of the Servicer under the terms of the Agreement
and
the servicing of the HELOCs by the Servicer during 200[ ] that were delivered
to
the [Depositor], [Securities Administrator] and [Insurer] pursuant to the
Agreement (collectively, the “Servicer Servicing Information”);
(ii) Based
on my knowledge, the reports and information comprising the Servicer Servicing
Information, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in the light of the circumstances under which such statements were made,
not misleading as of the period covered by, or the date of such reports or
information or the date of this certification;
(iii) Based
on my knowledge, all of the Servicer Servicing Information required to be
provided by the Servicer under the Agreement has been provided to the
[Depositor] [Securities Administrator] [Insurer];
(iv) I
am responsible for reviewing the activities performed by the Servicer 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 Servicer has fulfilled its obligations under the Agreement in all material
respects; and
(v) The
Compliance Statement required to be delivered by the Servicer pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Securities Administrator]
[Insurer]. The Servicing Assessment and the Attestation Report cover all items
of the servicing criteria identified on Exhibit 4 to the Agreement as applicable
to the Servicer. Any material instances of noncompliance described in such
reports have been disclosed to the [Depositor] [Securities Administrator]
[Insurer]. Any material instance of noncompliance with the Servicing Criteria
has been disclosed in such reports. The following material instances of
noncompliance identified in the Servicing Assessment and the Attestation Report
relate to the performance or obligations of the Servicer under the Agreement:
____________ (if none, state “None.”)
|
Date:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT4
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the Servicer and any Subservicer
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
X
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X
|
|
[NAME
OF SERVICER] [NAME OF SUBSERVICER]
|
|||||||||||||
|
Date:
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
EXHIBIT
5
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to each item described below, the entity indicated as the Responsible Party
shall be primarily responsible for reporting the information to the party
identified as responsible for preparing the Securities Exchange Act Reports
pursuant to Section ___.
Under
Item 1 of Form 10-D: a) items marked “7.04 statement” are required to be
included in the periodic Payment Date statement under Section 7.04 of the
Indenture, provided by the Securities Administrator based on information
received from the Servicer; and b) items marked “Form 10-D report” are required
to be in the Form 10-D report but not the 7.04 statement, provided by the party
indicated. Information under all other Items of Form 10-D is to be included
in
the Form 10-D report. All such information and any other Items on Form 8-K
and
Form 10-D set forth in this Exhibit shall be sent to the Securities
Administrator and the Depositor.
|
Form
|
Item
|
Description
|
Servicer
|
Securities
Administrator
|
Custodian
|
Indenture
Trustee
|
Depositor
|
Sponsor
|
||||||
|
10-D
|
(nominal)
|
|||||||||||||
|
1
|
Distribution
and Pool Performance Information
|
|||||||||||||
|
Item
1121(a) - Distribution and Pool Performance
Information
|
||||||||||||||
|
(1)
Any applicable record dates, accrual dates, determination dates for
calculating distributions and actual distribution dates for the
distribution period.
|
X
(7.04
Statement)
|
|||||||||||||
|
(2)
Cash flows received and the sources thereof for distributions, fees
and
expenses.
|
X
(7.04
Statement)
|
|||||||||||||
|
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
|
X
(7.04
Statement)
|
|||||||||||||
|
(i)
Fees or expenses accrued and paid, with an identification of the
general
purpose of such fees and the party receiving such fees or
expenses.
|
X
(7.04
Statement)
|
|||||||||||||
|
(ii)
Payments accrued or paid with respect to enhancement or other support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of the
general
purpose of such payments and the party receiving such
payments.
|
X
(7.04
Statement)
|
|||||||||||||
|
(iii)
Principal, interest and other distributions accrued and paid on the
asset-backed securities by type and by class or series and any principal
or interest shortfalls or carryovers.
|
X
(7.04
Statement)
|
|||||||||||||
|
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
X
(7.04
Statement)
|
|||||||||||||
|
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
X
(7.04
Statement)
|
|||||||||||||
|
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
|
X
(7.04
Statement)
|
|||||||||||||
|
(6)
Beginning and ending balances of transaction accounts, such as reserve
accounts, and material account activity during the period.
|
X
(7.04
Statement)
|
|||||||||||||
|
(7)
Any amounts drawn on any credit enhancement or other support identified
in
Item 1114 of Regulation AB, as applicable, and the amount of coverage
remaining under any such enhancement, if known and
applicable.
|
X
(7.04
Statement)
|
|||||||||||||
|
(8)
Number and amount of pool assets at the beginning and ending of each
period, and updated pool composition information, such as weighted
average
coupon, weighted average remaining term, pool factors and prepayment
amounts.
|
X
(7.04
Statement)
|
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
||||||||||||
|
(9)
Delinquency and loss information for the period.
|
X
|
X
(7.04
Statement)
|
||||||||||||
|
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool assets.
(methodology)
|
X
|
|||||||||||||
|
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of funds
advanced and the general source of funds for
reimbursements.
|
X
|
X
(7.04
Statement)
|
||||||||||||
|
(11)
Any material modifications, extensions or waivers to pool asset terms,
fees, penalties or payments during the distribution period or that
have
cumulatively become material over time.
|
X
|
X
(7.04
Statement- to the extent the Securities Administrator has actual
knowledge
of such information or received such information from the
servicer)
|
||||||||||||
|
(12)
Material breaches of pool asset representations or warranties or
transaction covenants.
|
X
|
X
(if
agreed upon by the parties)
|
X
|
|||||||||||
|
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger and
whether
the trigger was met.
|
X
(7.04
Statement)
|
|||||||||||||
|
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool,
|
X
|
|||||||||||||
|
information
regarding any pool asset changes (other than in connection with a
pool
asset converting into cash in accordance with its terms), such as
additions or removals in connection with a prefunding or revolving
period
and pool asset substitutions and repurchases (and purchase rates,
if
applicable), and cash flows available for future purchases, such
as the
balances of any prefunding or revolving accounts, if
applicable.
|
X
|
X
|
||||||||||||
|
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
X
|
X
|
||||||||||||
|
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
X
|
|||||||||||||
|
2
|
Legal
Proceedings
|
|||||||||||||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
|
||||||||||||||
|
Sponsor
(Seller)
|
X
|
|||||||||||||
|
Depositor
|
X
|
|||||||||||||
|
Trustee
|
X
|
|||||||||||||
|
Issuing
entity
|
X
|
|||||||||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or more
of
pool assets at time of report, other material servicers
|
X
|
|||||||||||||
|
Securities
Administrator
|
X
|
|||||||||||||
|
Originator
of 20% or more of pool assets as of the Cut-off Date
|
X
|
|||||||||||||
|
Custodian
|
X
|
|||||||||||||
|
3
|
Sales
of Securities and Use of Proceeds
|
|||||||||||||
|
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
X
|
|||||||||||||
|
4
|
Defaults
Upon Senior Securities
|
|||||||||||||
|
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
X
(with respect to servicing agreement)
|
|||||||||||||
|
5
|
Submission
of Matters to a Vote of Security Holders
|
|||||||||||||
|
Information
from Item 4 of Part II of Form 10-Q
|
X
(to the extent the securities administrator has actual
knowledge)
|
X
(to the extent it has actual knowledge)
|
||||||||||||
|
6
|
Significant
Obligors of Pool Assets
|
|||||||||||||
|
Item
1112(b) - Significant
Obligor Financial Information*
|
X
|
|||||||||||||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
||||||||||||||
|
7
|
Significant
Enhancement Provider Information
|
|||||||||||||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
||||||||||||||
|
Determining
applicable disclosure threshold
|
X
|
|||||||||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
X
(direction to Securities Administrator to incorporate insurer financials
by reference)
|
|||||||||||||
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
N/A
|
|||||||||||||
|
Determining
current maximum probable exposure
|
||||||||||||||
|
Determining
current significance percentage
|
||||||||||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
||||||||||||||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
||||||||||||||
|
8
|
Other
Information
|
|||||||||||||
|
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
||||||||||||||
|
9
|
Exhibits
|
|||||||||||||
|
Distribution
report
|
X
|
|||||||||||||
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
X
|
|||||||||||||
|
8-K
|
||||||||||||||
|
1.01
|
Entry
into a Material Definitive Agreement
|
|||||||||||||
|
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
X
(to the extent of its actual knowledge)
|
X
(to the extent of its actual knowledge)
|
X
|
X
(to the extent of its actual knowledge)
|
||||||||||
|
1.02
|
Termination
of a Material Definitive Agreement
|
X
(to the extent of its actual knowledge)
|
X
(to the extent of its actual knowledge)
|
X
|
X
(to the extent of its actual knowledge)
|
|||||||||
|
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
||||||||||||||
|
1.03
|
Bankruptcy
or Receivership
|
|||||||||||||
|
Disclosure
is required regarding the bankruptcy or receivership, if known to
the
Master Servicer, with respect to any of the following:
Sponsor
(Seller), Depositor, Master Servicer, affiliated Servicer, other
Servicer
servicing 20% or more of pool assets at time of report, other material
servicers, Securities Administrator, Trustee, significant obligor,
credit
enhancer (10% or more), derivatives counterparty,
Custodian
|
X
|
X
|
X
|
X
|
X
|
|||||||||
|
2.04
|
Triggering
Events that Accelerate or Increase a Direct Financial Obligation
or an
Obligation under an Off-Balance Sheet Arrangement
|
|||||||||||||
|
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the 7.04 statement
|
X
(to the extent of its actual knowledge)
|
|||||||||||||
|
3.03
|
Material
Modification to Rights of Security Holders
|
|||||||||||||
|
Disclosure
is required of any material modification to documents defining the
rights
of Noteholders, including the Indenture
|
X
|
X
|
||||||||||||
|
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
|||||||||||||
|
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
X
|
|||||||||||||
|
5.06
|
Change
in Shell Company Status
|
|||||||||||||
|
[Not
applicable to ABS issuers]
|
X
|
|||||||||||||
|
6.01
|
ABS
Informational and Computational Material
|
|||||||||||||
|
[Not
included in reports to be filed under Section 3.18]
|
X
|
|||||||||||||
|
6.02
|
Change
of Servicer or Trustee
|
|||||||||||||
|
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers, certificate
administrator or trustee.
|
X
|
X
|
X
|
|||||||||||
|
Reg
AB disclosure about any new servicer is also required.
|
X
|
|||||||||||||
|
Reg
AB disclosure about any new trustee is also required.
|
X
(to the extent required by successor trustee)
|
|||||||||||||
|
Reg
AB disclosure about any new securities administrator is also
required.
|
X
|
|||||||||||||
|
6.03
|
Change
in Credit Enhancement or Other External Support
|
|||||||||||||
|
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
X
|
|||||||||||||
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
X
|
|||||||||||||
|
6.04
|
Failure
to Make a Required Distribution
|
X
|
||||||||||||
|
6.05
|
Securities
Act Updating Disclosure
|
|||||||||||||
|
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
X
|
|
||||||||||||
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
X
|
|||||||||||||
|
7.01
|
Regulation
FD Disclosure
|
X
|
||||||||||||
|
8.01
|
Other
Events
|
|||||||||||||
|
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to security
holders.
|
X
|
|||||||||||||
|
9.01
|
Financial
Statements and Exhibits
|
|||||||||||||
|
10-K
|
||||||||||||||
|
9B
|
Other
Information
|
|||||||||||||
|
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
||||||||||||||
|
15
|
Exhibits
and Financial Statement Schedules
|
|||||||||||||
|
Item
1112(b) - Significant
Obligor Financial Information
|
X
|
|||||||||||||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
|
||||||||||||||
|
Determining
applicable disclosure threshold
|
X
|
|||||||||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
X
(direction to Securities Administrator to incorporate insurer financials
by reference)
|
|||||||||||||
|
Item
1115(b) - Derivative Counterparty Financial
Information
|
||||||||||||||
|
Determining
current maximum probable exposure
|
||||||||||||||
|
Determining
current significance percentage
|
||||||||||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
||||||||||||||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
|
||||||||||||||
|
Sponsor
(Seller)
|
X
|
|||||||||||||
|
Depositor
|
X
|
|||||||||||||
|
Trustee
|
||||||||||||||
|
Issuing
entity
|
X
|
|||||||||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or more
of
pool assets at time of report, other material servicers
|
X
|
|||||||||||||
|
Securities
Administrator
|
X
|
|||||||||||||
|
Originator
of 20% or more of pool assets as of the Cut-off Date
|
X
|
|||||||||||||
|
Custodian
|
X
|
|||||||||||||
|
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
|
||||||||||||||
|
Sponsor
(Seller)
|
X
|
|||||||||||||
|
Depositor
|
X
|
|||||||||||||
|
Trustee
|
X
|
|||||||||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or more
of
pool assets at time of report, other material servicers
|
X
|
|||||||||||||
|
Securities
Administrator
|
X
|
|||||||||||||
|
Originator
|
X
|
|||||||||||||
|
Custodian
|
X
|
|||||||||||||
|
Credit
Enhancer/Support Provider
|
X
|
|||||||||||||
|
Significant
Obligor
|
X
|
|||||||||||||
|
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
X
|
X
|
X
|
|||||||||||
|
Item
1123 - Servicer Compliance Statement
|
X
|
|||||||||||||
