Exhibit 99.11(a)
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this
"Assignment"), dated as of January 1, 2006, is entered into among Xxxxxx
Xxxxxxx Capital I Inc., a Delaware corporation (the "Depositor"), Xxxxxx
Xxxxxxx Mortgage Capital Inc. ("MSMCI"), PHH Mortgage Corporation (formerly
known as Cendant Mortgage Corporation) as a seller ("PHH" and, in such
capacity, a "Seller") and servicer (in such capacity, the "Servicer"),
Xxxxxx'x Gate Residential Mortgage Trust ("Xxxxxx'x Gate" and a "Seller" and,
together with PHH, the "Sellers") and acknowledged by LaSalle Bank National
Association, as trustee (the "Trustee") of Xxxxxx Xxxxxxx Mortgage Loan Trust
2006-2 (the "Trust"), and Xxxxx Fargo Bank, National Association, as master
servicer (or any successor servicer, the "Master Servicer").
RECITALS
WHEREAS MSMCI, the Sellers and the Servicer have entered into a certain
Third Amended and Restated Mortgage Loan Flow Purchase, Sale & Servicing
Agreement, dated as of January 1, 2006 (as amended or modified to the date
hereof, the "Agreement"), pursuant to which MSMCI has acquired certain
Mortgage Loans pursuant to the terms of the Agreement and the Servicer has
agreed to service such Mortgage Loans;
WHEREAS the Depositor has agreed, on the terms and conditions contained
herein, to purchase from MSMCI certain of the Mortgage Loans (the "Specified
Mortgage Loans") which are subject to the provisions of the Agreement and are
listed on the mortgage loan schedule attached as Exhibit I hereto (the
"Specified Mortgage Loan Schedule"); and
WHEREAS the Trustee, on behalf of the Trust, has agreed, on the terms
and conditions contained herein, to purchase from the Depositor the Specified
Mortgage Loans;
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration (the receipt and sufficiency of
which are hereby acknowledged), the parties agree as follows:
1. Assignment and Assumption
(a) On and of the date hereof, MSMCI hereby sells, assigns and
transfers to the Depositor all of its right, title and interest in the
Specified Mortgage Loans and all rights and obligations related thereto as
provided under the Agreement to the extent relating to the Specified Mortgage
Loans, the Depositor hereby accepts such assignment from MSMCI (the "First
Assignment and Assumption"), and the Sellers hereby acknowledge the First
Assignment and Assumption.
MSMCI specifically reserves and does not assign to the Depositor
hereunder any and all right, title and interest in, to and under and all
obligations of MSMCI with respect to any Mortgage Loans subject to the
Agreement which are not the Specified Mortgage Loans.
(b) On and of the date hereof, immediately after giving effect to the
First Assignment and Assumption, the Depositor hereby sells, assigns and
transfers to the Trustee, on behalf of the Trust, all of its right, title and
interest in the Specified Mortgage Loans and all rights and obligations
related thereto as provided under the Agreement to the extent relating to the
Specified Mortgage Loans, and the Trustee, on behalf of the Trust, hereby
accepts such assignment from the Depositor (the "Second Assignment and
Assumption"), and the Sellers hereby acknowledge the Second Assignment and
Assumption.
(c) On and as of the date hereof, MSMCI represents and warrants to the
Depositor and the Trustee that MSMCI has not taken any action that would serve
to impair or encumber the respective ownership interests of the Depositor and
the Trustee in the Specified Mortgage Loans since the date of MSMCI's
acquisition of the Specified Mortgage Loans.
2. Recognition of Trustee
(a) From and after the date hereof, both MSMCI and the Sellers shall
note the transfer of the Specified Mortgage Loans to the Trustee, in their
respective books and records and shall recognize the Trustee, on behalf of the
Trust, as of the date hereof, as the owner of the Specified Mortgage Loans,
and Servicer shall service the Specified Mortgage Loans for the benefit of the
Trust pursuant to the Agreement, the terms of which are incorporated herein by
reference. It is the intention of the Sellers, the Servicer, the Depositor,
the Trustee and MSMCI that this Assignment shall be binding upon and inure to
the benefit of the Depositor, the Trustee and MSMCI and their respective
successors and assigns.
(b) Without in any way limiting the foregoing, the parties confirm
that this Assignment includes the rights relating to amendments or waivers
under the Agreement. Accordingly, the right of MSMCI to consent to any
amendment of the Agreement and its rights concerning waivers as set forth in
Section 12.07 of the Agreement shall be exercisable, to the extent any such
amendment or waiver affects the Specified Mortgage Loans or any of the rights
under the Agreement with respect thereto (other than the servicing of the
Specified Mortgage Loans, which shall be enforced by the Master Servicer) by
the Trustee as assignee of MSMCI.
(c) It is expressly understood and agreed by the parties hereto that
(i) this Assignment is executed and delivered by LaSalle Bank National
Association, not individually or personally but solely on behalf of the Trust,
as the assignee, in the exercise of the powers and authority conferred and
vested in it, as Trustee, pursuant to the pooling and servicing agreement
dated as of the date hereof among the Depositor, the Master Servicer, Xxxxx
Fargo Bank, National Association, as securities administrator, and the Trustee
(the "Pooling and Servicing Agreement") for the Xxxxxx Xxxxxxx Mortgage Loan
Trust 2006-2, Mortgage Pass-Through Certificates, Series 2006-2, (ii) each of
the representations, undertakings and agreements herein made on the part of
assignee is made and intended not as personal representations, undertakings
and agreements by LaSalle Bank National Association but is made and intended
for the purpose of binding only the Trust, (iii) nothing herein contained
shall be construed as creating any liability for LaSalle Bank National
Association, individually or personally, to perform any covenant (either
express or implied) contained herein, (iv) under no circumstances shall
LaSalle Bank National Association be personally liable for the payment of any
indebtedness or expenses of the Trust, or be liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by
the Trust under this Assignment and (v) all recourse for any payment liability
or other obligation of the assignee shall be had solely to the assets of the
Trust.
3. Representations and Warranties
(a) The Depositor represents and warrants that it is a sophisticated
investor able to evaluate the risks and merits of the transactions
contemplated hereby, and that it has not relied in connection therewith upon
any statements or representations of the Sellers or MSMCI other than those
contained in the Agreement or this Assignment.
(b) Each of the parties hereto represents and warrants that it is duly
and legally authorized to enter into this Assignment.
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(c) Each of the Depositor, MSMCI, Servicer and the Sellers represents
and warrants that this Assignment has been duly authorized, executed and
delivered by it and (assuming due authorization, execution and delivery
thereof by each of the other parties hereto) constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(d) Each Seller hereby restates, as of the Closing Date (as defined in
the Pooling and Servicing Agreement referred to below), the representations
and warranties set forth in the Agreement, other than the representations and
warranties contained in Sections 3.03(4), (20), (21), (25), (31) or (58) of
the Agreement, with respect to each of the Specified Mortgage Loans that were
sold by it under the Agreement, to and for the benefit of the Depositor, the
Trustee and the Trust, and by this reference incorporates such representations
and warranties herein, as of such Closing Date.
4. The Servicer hereby acknowledges that Xxxxx Fargo Bank, National
Association has been appointed as the Master Servicer of the Specified
Mortgage Loans pursuant to the Pooling and Servicing Agreement and, therefore,
has the right to enforce all obligations of the Servicer under the Agreement.
Such rights will include, without limitation, the right to terminate the
Servicer under the Agreement upon the occurrence of an event of default
thereunder, the right to receive all remittances required to be made by the
Servicer under the Agreement, the right to receive all monthly reports and
other data required to be delivered by the Servicer under the Agreement, the
right to examine the books and records of the Servicer, indemnification rights
and the right to exercise certain rights of consent and approval relating to
actions taken by MSMCI. The Servicer shall make all distributions under the
Agreement to the Master Servicer by wire transfer of immediately available
funds to:
Xxxxx Fargo Bank, National Association
ABA Number: 000-000-000
Account Name: Corporate Trust Clearing
Account number: 0000000000
For further credit to: [o], MSM 2006-2
The Servicer shall deliver all reports required to be delivered under
the Agreement to the Master Servicer at the following address:
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager, MSM 2006-2
Office Number: (000) 000-0000
Telecopier: (000) 000-0000
For the avoidance of doubt, the parties to this Assignment hereby
acknowledge that the Master Servicer shall have no obligation for enforcing or
overseeing the Servicer's activities pursuant to Sections 5.18(c) and (d) of
the Agreement.
5. Amendments to the Agreement
The parties to this Assignment hereby agree to amend the Agreement,
solely with respect to the Specified Mortgage Loans, as follows:
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(a) The term "Indemnified Party" is added as a new defined term in
Section 1.01 and shall have the following meaning:
"Indemnified Party: each Party (other than each Seller and the
Servicer) described in the first sentence of Section 13.07(a)
hereof."
(b) The definition of "Permitted Investments" in Section 1.01 shall
have the meaning of such term as defined in the Pooling and Servicing
Agreement.
(c) The definition of "Remittance Date" in Section 1.01 is hereby
amended and restated in its entirety as follows:
"Remittance Date: No later than 2:00 p.m. New York time on the
18th day of each month (or, if such 18th day is not a Business
Day, the following Business Day)."
(d) The definition of "Servicing Criteria" in Section 1.01 is hereby
amended and restated in its entirety as follows:
"Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB for which the Servicer is responsible as
identified on Exhibit 14 attached hereto."
(e) The penultimate paragraph of Section 3.05 of the Agreement is
hereby amended and restated as follows:
"With respect to any Mortgage Loans sold in a Securitization
Transaction where the Servicer remains as the servicer, the
Servicer agrees that on or before March 1st each year following
the year such Securitization Transaction occurs, the Servicer
shall deliver, and shall cause each subservicert to deliver, to
the depositor and the trustee, a certification in the form
attached as Exhibit 11 hereto, executed by a senior officer of the
Servicer in charge of servicing for use in connection with any
Form 10-K to be filed with the Securities and Exchange Commission
with respect to the securitization trust. The obligation to
provide such certification will terminate to the extent the
related securitization trust's obligation to file reports under
the Exchange Act, terminates."
(f) The second paragraph of Section 5.13 of the Agreement is hereby
amended and restated in its entirety as follows:
"With respect to any REO Property, the Trustee's name shall
be placed on the title to such REO Property solely as the Trustee
hereunder and not in its individual capacity. The Servicer shall
ensure that the title to such REO Property references the
Agreement and the Purchaser's (or its designee's) capacity
thereunder. Pursuant to its efforts to sell such REO Property, the
Servicer shall either itself or through an agent selected by the
Servicer protect and conserve such REO Property in the same manner
and to such extent as is customary in the locality where such REO
Property is located and may, incident to its conservation and
protection of the interests of the Purchaser, or its designee,
rent the same, or any part thereof, as the Servicer deems to be in
the best interest of the Purchaser, or its designee, for the
period prior to the sale of such REO Property. The Servicer shall
prepare for and deliver to the Purchaser, or its designee, a
statement with respect to each REO Property that has been rented
showing the aggregate rental income received and all expenses
incurred in connection with the maintenance of such REO Property
at such times as is necessary to enable the Purchaser, or its
designee,
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to comply with the reporting requirements of the REMIC Provisions.
The net monthly rental income, if any, from such REO Property
shall be deposited in the Certificate Account no later than the
close of business on each Determination Date. The Servicer shall
perform the tax reporting and withholding required by Sections
1445 and 6050J of the Code with respect to foreclosures and
abandonments, the tax reporting required by Section 6050H of the
Code with respect to the receipt of mortgage interest from
individuals and any tax reporting required by Section 6050P of the
Code with respect to the cancellation of indebtedness by certain
financial entities, by preparing such tax and information returns
as may be required, in the form required, and delivering the same
to the Purchaser, or its designee, for filing.
In the event that the Purchaser, or its designee, acquires
any Mortgaged Property as aforesaid or otherwise in connection
with a default or imminent default on a Mortgage Loan, the
Servicer shall dispose of such Mortgaged Property as soon as
practicable in a manner that maximizes the Liquidation Proceeds
thereof, but in no event later than three years after its
acquisition by the Purchaser, or its designee. In that event, the
Purchaser, or its designee, shall have been supplied with an
Opinion of Counsel to the effect that the holding by the
Purchaser, or its designee, of such Mortgaged Property subsequent
to a three-year period, if applicable, will not result in the
imposition of taxes on "prohibited transactions" of any REMIC as
defined in section 860F of the Code or cause any REMIC to fail to
qualify as a REMIC at any time, the Purchaser, or its designee,
may continue to hold such Mortgaged Property (subject to any
conditions contained in such Opinion of Counsel) after the
expiration of such three-year period. Notwithstanding any other
provision of this Agreement, no Mortgaged Property acquired by the
Purchaser, or its designee, shall be rented (or allowed to
continue to be rented) or otherwise used for the production of
income by or on behalf of the Purchaser, or its designee, in such
a manner or pursuant to any terms that would (i) cause such
Mortgaged Property to fail to qualify as "foreclosure property"
within the meaning of section 860G(a)(8) of the Code or (ii)
subject any REMIC to the imposition of any federal, state or local
income taxes on the income earned from such Mortgaged Property
under Section 860G(c) of the Code or otherwise, unless the
Servicer has agreed to indemnify and hold harmless the Purchaser,
or its designee, with respect to the imposition of any such
taxes."
(g) The third paragraph of Section 5.13 of the Agreement is hereby
deleted in its entirety.
(h) The first paragraph of Section 6.02 of the Agreement is hereby
amended and restated in its entirety as follows:
"Reporting. Not later than the 5th Business Day of each month, the
Servicer shall forward to the Master Servicer in hard copy and
electronic format a statement in the form of Exhbit 6.02(a) and
Exhibit 6.02(b), certified by a Servicing Officer, setting forth
(a) the amount of the distribution made on such Remittance Date
which is allocable to principal and allocable to interest; (b) the
amount of servicing compensation received by the Servicer during
the prior calendar month; (c) the aggregate Stated Principal
Balance and the aggregate unpaid principal balance of the Mortgage
Loans as of the last day of the preceding month; and (d) the paid
through date for each Mortgage Loan. Such statement shall also
include information regarding delinquencies on Mortgage Loans,
indicating the number and aggregate principal amount of Mortgage
Loans which are either one (1), two (2) or three (3) or more
months delinquent and the book value of any REO Property, or such
other mortgage loan level data as agreed upon by the Servicer and
the Master Servicer, and the monthly reports substantially in the
form of Exhibit 15 attached hereto (or in such other formats
mutually agreed upon between the Servicer and the Master
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Servicer). Such monthly reports shall be available by the Servicer
for the Purchaser on Servicer's secured web site. The Servicer
shall provide training, secured access and password(s) to the
Purchaser on the operation of the website."
(i) Section 7.04 of the Agreement is hereby amended and restated in
its entirety as follows:
"Annual Statement as to Compliance. The Servicer shall deliver to
the Purchaser and the Master Servicer, on or before March 1st each
year beginning March 1, 2006, an Officer's Certificate stating
that (a) a review of the activities of the Servicer during the
preceding calendar year and of its performance under this
Agreement has been made under such officer's supervision, and (b)
to the best of such officer's knowledge, based on such review, the
Servicer has fulfilled all its obligations under this Agreement
throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof and the
action being taken by the Servicer to cure such default."
(j) Section 7.05 of the Agreement is hereby amended and restated in
its entirety as follows:
"Annual Independent Public Accountants' Servicing Report. On or
before March 1st of each year beginning March 1, 2006, the
Servicer at its expense shall cause a firm of independent public
accountants which is a member of the American Institute of
Certified Public Accountants to furnish a statement to the
Purchaser and the Master Servicer to the effect that such firm
has, with respect to the Servicer's overall servicing operations,
examined such operations in accordance with the requirements of
the Uniform Single Attestation Program for Mortgage Bankers,
stating such firm's conclusions relating thereto."
(k) Section 9.01 of the Agreement is hereby amended to insert the
following as the penultimate paragraph of such Section:
"In addition, the Servicer shall indemnify and hold harmless
the Master Servicer and each of its directors, officers,
employees, agents, and affiliates from and against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments and other costs and
expenses arising out of or based upon (a) any breach by the
Servicer of any if its obligations under hereunder, including
particularly its obligations to provide any Assessment of
Compliance, Attestation Report, Compliance Statement or any
information, data or materials provided by the Servicer hereunder,
or (c) the negligence, bad faith or willful misconduct of the
Servicer in connection with its performance hereunder. If the
indemnification provided for herein is unavailable or insufficient
to hold harmless the Master Servicer, then the Servicer as a
result of any claims, losses, damages or liabilities incurred by
the Master Servicer in such proportion as is appropriate to
reflect the relative fault of the Master Servicer on the one hand
and the Servicer on the other."
(l) The word "or" is deleted from the end of Section 10.01(8), the
word "or" is added at the end of Section 10.01(9) and the following
paragraph is hereby incorporated into the Agreement as new Section
10.01(10):
"(f) failure by the Servicer to duly perform, within the required
time period, its obligations under Sections 7.04 or 7.05 which
failure continues unremedied for a period of fifteen (15) days
after 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
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Agreement or by any master servicer responsible for master
servicing the Mortgage Loans pursuant to a securitization of such
Mortgage Loans;"
(m) The following paragraph is hereby incorporated into the Agreement
as new Section 12.14:
"Third Party Beneficiary. For purposes of this Agreement,
including but not limited to Section 7.05, any Master Servicer
shall be considered a third party beneficiary to this Agreement
entitled to all the rights and benefits accruing to any Master
Servicer herein as if it were a direct party to this Agreement."
(n) Section 13.03(d) of the Agreement is hereby amended and restated
in its entirety as follows:
"(d) For the purpose of satisfying the reporting obligation under
the Exchange Act with respect to any class of asset-backed
securities, each Seller and the Servicer shall (or shall cause
each Subservicer and Third-Party Originator to) (i) provide prompt
notice to the Purchaser, any Master Servicer and any Depositor in
writing of (A) any material litigation or governmental proceedings
involving the Company, any Subservicer or any Third-Party
Originator, (B) any affiliations or relationships that develop
following the closing date of a Securitization Transaction between
the Company, any Subservicer or any Third-Party Originator and any
of the parties specified in clause (D) of paragraph (a) of this
Section (and any other parties identified in writing by the
requesting party) with respect to such Securitization Transaction,
(C) any Event of Default under the terms of this Agreement or any
Reconstitution Agreement, (D) any merger, consolidation or sale of
substantially all of the assets of the Company, and (E) the
Company's entry into an agreement with a Subservicer to perform or
assist in the performance of any of the Company's obligations
under this Agreement or any Reconstitution Agreement and (ii)
provide to the Purchaser and any Depositor a description of such
proceedings, affiliations or relationships."
(o) Section 13.03(f) of the Agreement is hereby amended and restated
in its entirety as follows:
"(f) In addition to such information as the Company, as servicer,
is obligated to provide pursuant to other provisions of this
Agreement, not later than ten days prior to the deadline for the
filing of any distribution report on Form 10-D in respect of any
Securitization Transaction that includes any of the Mortgage Loans
serviced by the Company or any Subservicer, the Company or such
Subservicer, as applicable, shall, to the extent the Company or
such Subservicer has knowledge, provide to the party responsible
for filing such report (including, if applicable, the Master
Servicer) notice of the occurrence of any of the following events
along with all information, data, and materials related thereto as
may be required to be included in the related distribution report
on Form 10-D (as specified in the provisions of Regulation AB
referenced below):
(i) any material modifications, extensions or
waivers of pool asset terms, fees, penalties or payments
during the distribution period or that have cumulatively
become material over time (Item 1121(a)(11) of Regulation
AB);
(ii) material breaches of pool asset representations
or warranties or transaction covenants (Item 1121(a)(12) of
Regulation AB); and
(iii) information regarding new asset-backed
securities issuances backed by the same pool assets, any
pool asset changes (such as, additions,
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substitutions or repurchases), and any material changes in
origination, underwriting or other criteria for acquisition
or selection of pool assets (Item 1121(a)(14) of Regulation
AB).
(g) The Company shall provide to the Purchaser, any Master
Servicer and any Depositor, evidence of the authorization of the
person signing any certification or statement, copies or other
evidence of Fidelity Bond Insurance and Errors and Omission
Insurance policy, financial information and reports, and such
other information related to the Company or any Subservicer or the
Company or such Subservicer's performance hereunder."
(p) Section 13.05(1)(a)(iv) of the Agreement is hereby amended and
restated in its entirety as follows:
"(iv) deliver, and cause each subservicer and subcontractor
described in clause (iii) above to deliver, to the Purchaser, any
Depositor and any other Person that will be responsible for
signing the certification (a "Sarbanes Certification") required by
Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an
asset-backed issuer with respect to a Securitization Transaction a
certification, signed by an appropriate officer of the Servicer,
in the form attached hereto as Exhibit 11."
(q) Section 13.06(a) of the Agreement is hereby amended to revise the
number of calendar days in the first sentence of such Section from
"fifteen (15)" to "thirty (30)."
(r) Section 13.06(a) of the Agreement is hereby amended to add
Sections 13.03(f) and 13.03(g) as provisions that the Subservicers must
comply with to same extent as if such Subservicer were the Servicer.
(s) The last sentence of the last paragraph of Section 13.06 of the
Agreement is amended to require the Servicer to cause any Subservicer or
Subcontractor to provide any assessment of compliance and attestation
but also any other certifications required to delivered under this
Section 13.06.
(t) Section 13.07(a)(ii) of the Agreement is hereby amended and
restated in its entirety as follows:
"(ii) any breach by the Seller or Servicer under, or any failure
by any Seller, the Servicer, any Subservicer, any Subcontractor or
any Third-Party Originator to deliver any information, report,
certification, accountants' letter or other material when and as
required, under this Article XIII, including any failure by the
Servicer to identify pursuant to Section 13.06(b) any
Subcontractor "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB;"
(u) The word "or" is struck at the end of Section 13.07(a)(ii) of the
Agreement and the following is inserted to Section 13.07(a) of the
Agreement:
"(iv) negligence, bad faith or willful misconduct of the Servicer
in connection with its performance under this Article XIII.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the
Servicer agrees that it shall contribute to the amount paid
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or payable by such Indemnified Party as a result of any claims,
losses, damages or liabilities incurred by such Indemnified Party
in such proportion as is appropriate to reflect the relative fault
of such Indemnified Party on the one hand and the Servicer on the
other.
This indemnification shall survive the termination of this
Agreement or the termination of any party to this Agreement."
(v) The following parenthetical is inserted directly before the
proviso in the last sentence of the first paragraph of Section
13.07(b)(i) of the Agreement:
"(and if the Servicer is servicing any of the Mortgage Loans in a
Securitization Transaction, appoint a successor servicer
reasonably acceptable to the Master Servicer for such
Securitization Transaction)"
(w) Exhibits 6.02(a) and 6.02(b) of the Agreement is hereby deleted
and replaced with Exhibit II to this Assignment.
(x) Exhibit 11 to the Agreement is hereby deleted and replaced with
Exhibit A-1 to this Assignment.
(y) Exhibit 14 to the Agreement is hereby deleted and replaced with
Exhibit B-1 to this Assignment.
(z) Exhibit III to this Assignment is hereby added to the Agreement as
a new Exhibit 15 thereto.
6. Continuing Effect
Except as contemplated hereby, the Agreement shall remain in full force
and effect in accordance with its terms.
7. Governing Law
This Assignment and the rights and obligations hereunder shall be
governed by and construed in accordance with the internal laws of the State of
New York.
8. Notices
Any notices or other communications permitted or required under the
Agreement to be made to the Depositor, MSMCI, the Master Servicer, the
Sellers, the Servicer and the Trustee shall be made in accordance with the
terms of the Agreement and shall be sent to the Depositor and Trustee as
follows:
In the case of MSMCI:
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-2
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With a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel's Office
In the case of the Depositor:
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-2
In the case of the Trustee:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services MSM 2006-2
In the case of PHH and the Servicer:
PHH Mortgage Corporation
0000 Xxxxxxxxxx Xxxx
Xx. Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Vice President, Secondary Marketing
In the case of Xxxxxx'x Gate:
Xxxxxx'x Gate Residential Mortgage Trust
c/o PHH Mortgage Corporation
0000 Xxxxxxxxxx Xxxx
Xx. Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Vice President, Secondary Marketing
or to such other address as may hereafter be furnished by the Depositor and
the Trustee to the parties in accordance with the provisions of the Agreement.
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9. Ratification
Except as modified and expressly amended by this Assignment, the
Agreement is in all respects ratified and confirmed, and all terms, provisions
and conditions thereof shall be and remain in full force and effect.
10. Counterparts
This Assignment may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same instrument.
11. Definitions
Any capitalized term used but not defined in this Assignment has the
same meaning as in the Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment the
day and year first above written.
XXXXXX XXXXXXX MORTGAGE
CAPITAL INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Director
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
PHH MORTGAGE CORPORATION
By: /s/ Crissy Judge
-----------------------------------
Name: Crissy Judge
Title: Assistant Vice President
XXXXXX'X GATE RESIDENTIAL
MORTGAGE TRUST
By: PHH Mortgage Corporation, as
Administrator
By: /s/ Crissy Judge
-----------------------------------
Name: Crissy Judge
Title: Assistant Vice President
Acknowledged and Agreed:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
LASALLE BANK, NATIONAL
ASSOCIATION, as Trustee of Xxxxxx Xxxxxxx
Mortgage Loan Trust 2006-2
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
EXHIBIT I
Mortgage Loan Schedule
[see Schedule A to Pooling and Servicing Agreement]
EXH. I-1
Exhibit II A: Standard File Layout - Delinquency Reporting
-----------------------------------------------------------------------------------------------------------------------------------
Column/Header Name Description Decimal Format
Comment
-----------------------------------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer. This may
be different than the LOAN_NBR
-----------------------------------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to each loan by the originator.
-----------------------------------------------------------------------------------------------------------------------------------
CLIENT_NBR Servicer Client Number
-----------------------------------------------------------------------------------------------------------------------------------
SERV_INVESTOR_NBR Contains a unique number as assigned by an external servicer
to identify a group of loans in their system.
-----------------------------------------------------------------------------------------------------------------------------------
BORROWER_FIRST_NAME First Name of the Borrower.
-----------------------------------------------------------------------------------------------------------------------------------
BORROWER_LAST_NAME Last name of the borrower.
-----------------------------------------------------------------------------------------------------------------------------------
PROP_ADDRESS Street Name and Number of Property
-----------------------------------------------------------------------------------------------------------------------------------
PROP_STATE The state where the property located.
-----------------------------------------------------------------------------------------------------------------------------------
PROP_ZIP Zip code where the property is located.
-----------------------------------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due to the MM/DD/YYYY
servicer at the end of processing cycle, as reported by
Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
-----------------------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was filed. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
-----------------------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_CASE_NBR The case number assigned by the court to the bankruptcy
filing.
-----------------------------------------------------------------------------------------------------------------------------------
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has been approved by MM/DD/YYYY
the courts
-----------------------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. Either by MM/DD/YYYY
Dismissal, Discharged and/or a Motion For Relief Was Granted.
-----------------------------------------------------------------------------------------------------------------------------------
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The Servicer MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan Such As;
-----------------------------------------------------------------------------------------------------------------------------------
LOSS_MIT_EST_COMP_DATE The Date The Loss Mitigation /Plan Is Scheduled To End/Close MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer with MM/DD/YYYY
instructions to begin foreclosure proceedings.
-----------------------------------------------------------------------------------------------------------------------------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue Foreclosure MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a Foreclosure Action MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected to occur. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
EXH. II-1
-----------------------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_AMT The amount a property sold for at the foreclosure sale. 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
EVICTION_START_DATE The date the servicer initiates eviction of the borrower. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the property MM/DD/YYYY
from the borrower.
-----------------------------------------------------------------------------------------------------------------------------------
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
LIST_DATE The date an REO property is listed at a particular price. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
OFFER_DATE_TIME The date an offer is received by DA Admin or by the Servicer. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
REO_CLOSING_DATE The date the REO sale of the property is scheduled to close. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
OCCUPANT_CODE Classification of how the property is occupied.
-----------------------------------------------------------------------------------------------------------------------------------
PROP_CONDITION_CODE A code that indicates the condition of the property.
-----------------------------------------------------------------------------------------------------------------------------------
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
CURR_PROP_VAL The current "as is" value of the property based on brokers 2
price opinion or appraisal.
-----------------------------------------------------------------------------------------------------------------------------------
REPAIRED_PROP_VAL The amount the property would be worth if repairs are completed 2
pursuant to a broker's price opinion or appraisal.
-----------------------------------------------------------------------------------------------------------------------------------
If applicable:
--------------
-----------------------------------------------------------------------------------------------------------------------------------
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
-----------------------------------------------------------------------------------------------------------------------------------
DELINQ_REASON_CODE The circumstances which caused a borrower to stop paying on a
loan. Code indicates the reason why the loan is in default for
this cycle.
-----------------------------------------------------------------------------------------------------------------------------------
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With Mortgage Insurance MM/DD/YYYY
Company.
-----------------------------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim Payment MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,) or
-----------------------------------------------------------------------------------------------------------------------------------
EXH. II-2
-----------------------------------------------------------------------------------------------------------------------------------
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By The Pool MM/DD/YYYY
Insurer
-----------------------------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------------------------
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or
dollar signs ($)
-----------------------------------------------------------------------------------------------------------------------------------
EXH. II-3
Exhibit II B: Standard File Codes - Delinquency Reporting
The Loss Mit Type field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply
Xxxxx Fargo Bank with a description of each of the Loss Mitigation Types prior
to sending the file.
The Occupant Code field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The Property Condition field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
EXH. II-4
Exhibit II B: Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Reason Code field should show the Reason for Delinquency
as follows:
-------------------------------------------------------------------------
Delinquency Delinquency Description
Code
-------------------------------------------------------------------------
001 FNMA-Death of principal mortgagor
-------------------------------------------------------------------------
002 FNMA-Illness of principal mortgagor
-------------------------------------------------------------------------
003 FNMA-Illness of mortgagor's family member
-------------------------------------------------------------------------
004 FNMA-Death of mortgagor's family member
-------------------------------------------------------------------------
005 FNMA-Marital difficulties
-------------------------------------------------------------------------
006 FNMA-Curtailment of income
-------------------------------------------------------------------------
007 FNMA-Excessive Obligation
-------------------------------------------------------------------------
008 FNMA-Abandonment of property
-------------------------------------------------------------------------
009 FNMA-Distant employee transfer
-------------------------------------------------------------------------
011 FNMA-Property problem
-------------------------------------------------------------------------
012 FNMA-Inability to sell property
-------------------------------------------------------------------------
013 FNMA-Inability to rent property
-------------------------------------------------------------------------
014 FNMA-Military Service
-------------------------------------------------------------------------
015 FNMA-Other
-------------------------------------------------------------------------
016 FNMA-Unemployment
-------------------------------------------------------------------------
017 FNMA-Business failure
-------------------------------------------------------------------------
019 FNMA-Casualty loss
-------------------------------------------------------------------------
022 FNMA-Energy environment costs
-------------------------------------------------------------------------
023 FNMA-Servicing problems
-------------------------------------------------------------------------
026 FNMA-Payment adjustment
-------------------------------------------------------------------------
027 FNMA-Payment dispute
-------------------------------------------------------------------------
029 FNMA-Transfer of ownership pending
-------------------------------------------------------------------------
030 FNMA-Fraud
-------------------------------------------------------------------------
031 FNMA-Unable to contact borrower
-------------------------------------------------------------------------
INC FNMA-Incarceration
-------------------------------------------------------------------------
EXH. II-5
Exhibit II B: Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Status Code field should show the Status of Default as
follows:
-----------------------------------------------------------------------
Status Code Status Description
-----------------------------------------------------------------------
09 Forbearance
-----------------------------------------------------------------------
17 Pre-foreclosure Sale Closing Plan Accepted
-----------------------------------------------------------------------
24 Government Seizure
-----------------------------------------------------------------------
26 Refinance
-----------------------------------------------------------------------
27 Assumption
-----------------------------------------------------------------------
28 Modification
-----------------------------------------------------------------------
29 Charge-Off
-----------------------------------------------------------------------
30 Third Party Sale
-----------------------------------------------------------------------
31 Probate
-----------------------------------------------------------------------
32 Military Indulgence
-----------------------------------------------------------------------
43 Foreclosure Started
-----------------------------------------------------------------------
44 Deed-in-Lieu Started
-----------------------------------------------------------------------
49 Assignment Completed
-----------------------------------------------------------------------
61 Second Lien Considerations
-----------------------------------------------------------------------
62 Veteran's Affairs-No Bid
-----------------------------------------------------------------------
63 Veteran's Affairs-Refund
-----------------------------------------------------------------------
64 Veteran's Affairs-Buydown
-----------------------------------------------------------------------
65 Chapter 7 Bankruptcy
-----------------------------------------------------------------------
66 Chapter 11 Bankruptcy
-----------------------------------------------------------------------
67 Chapter 13 Bankruptcy
-----------------------------------------------------------------------
EXH. II-6
Exhibit III A : Calculation of Realized Loss/Gain Form 332- Instruction Sheet
NOTE: Do not net or combine items. Show all expenses individually and
all credits as separate line items. Claim packages are due on the
remittance report date. Late submissions may result in claims not being
passed until the following month. The Servicer is responsible to remit
all funds pending loss approval and /or resolution of any disputed
items.
(aa)
(bb) The numbers on the 332 form correspond with the numbers listed
below.
Liquidation and Acquisition Expenses:
-------------------------------------
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and servicing
fees advanced is required.
2. The Total Interest Due less the aggregate amount of servicing fee
that would have been earned if all delinquent payments had been
made as agreed. For documentation, an Amortization Schedule from
date of default through liquidation breaking out the net interest
and servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance
of the Mortgage Loan as calculated on a monthly basis. For
documentation, an Amortization Schedule from date of default
through liquidation breaking out the net interest and servicing
fees advanced is required.
4-12. Complete as applicable. Required documentation:
* For taxes and insurance advances - see page 2 of 332 form -
breakdown required showing period
of coverage, base tax, interest, penalty. Advances prior to
default require evidence of servicer efforts to recover
advances.
* For escrow advances - complete payment history
(to calculate advances from last positive escrow balance forward)
* Other expenses - copies of corporate advance history showing all
payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the decision and
WFB's approved Officer Certificate
* Unusual or extraordinary items may require further
documentation.
13. The total of lines 1 through 12.
(cc) Credits:
14-21. Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid
instructions and Escrow Agent / Attorney
Letter of Proceeds Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332
form
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial
proceeds and line (18b) for Part B/Supplemental proceeds.
EXH. III-1
Total Realized Loss (or Amount of Any Gain)
-------------------------------------------
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis ( ).
EXH. III-2
Exhibit IIIB: Calculation of Realized Loss/Gain Form 332
Prepared by: __________________ Date: _______________
Phone: ______________________ Email Address:_____________________
---------------------- ------------------------ -----------------------------
Servicer Loan No. Servicer Name Servicer Address
---------------------- ------------------------ -----------------------------
XXXXX FARGO BANK, N.A. Loan No._____________________________
Borrower's Name: ____________________________________________________
Property Address: ___________________________________________________
Liquidation Type: REO Sale 3rd Party Sale Short Sale Charge Off
Was this loan granted a Bankruptcy deficiency or cramdown Yes No
If "Yes", provide deficiency or cramdown amount _______________________________
Liquidation and Acquisition Expenses:
(1) Actual Unpaid Principal Balance of Mortgage Loan $ ______________
(1)
(2) Interest accrued at Net Rate ________________
(2)
(3) Accrued Servicing Fees ________________ (3)
(4) Attorney's Fees ________________ (4)
(5) Taxes (see page 2) ________________ (5)
(6) Property Maintenance ________________
(6)
(7) MI/Hazard Insurance Premiums (see page 2) ________________
(7)
(8) Utility Expenses ________________ (8)
(9) Appraisal/BPO ________________ (9)
(10) Property Inspections ________________
(10)
(11) FC Costs/Other Legal Expenses ________________
(11)
(12) Other (itemize) ________________
(12)
Cash for Keys__________________________ ________________
(12)
HOA/Condo Fees_________________________ ________________
(12)
EXH. III-3
______________________________________ ________________
(12)
Total Expenses $ _______________ (13)
Credits:
(14) Escrow Balance $ ______________
(14)
(15) HIP Refund ________________
(15)
(16) Rental Receipts ________________
(16)
(17) Hazard Loss Proceeds ________________
(17)
(18) Primary Mortgage Insurance / Gov't Insurance
________________ (18a)HUD Part A
________________
(18b) HUD Part B ________________
(19) Pool Insurance Proceeds ________________
(19)
(20) Proceeds from Sale of Acquired Property ________________
(20)
(21) Other (itemize) ________________
(21)
_________________________________________ ________________
(21)
Total Credits $________________ (22)
Total Realized Loss (or Amount of Gain) $________________ (23)
EXH. III-4
Escrow Disbursement Detail
--------------------------------------------------------------------------------
Type Date Paid Period of Total Paid Base Penalties Interest
(Tax /Ins.) Coverage Amount
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXH. III-5
EXHIBIT A-1
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the
"Agreement"), among
[IDENTIFY PARTIES]
I, ________________________________, the _____________________ of PHH Mortgage
Corporation, certify to [the Purchaser], [the Depositor], and the [Master
Servicer] [Securities Administrator] [Trustee], and their officers, with the
knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB and identified
as the responsibility of the Company on Exhibit B to the Regulation AB
Compliance Addendum to the Agreement (the "Servicing Criteria"), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the "Exchange Act") and Item 1122 of Regulation AB (the "Servicing
Assessment"), the registered public accounting firm's attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section 1122(b) of Regulation AB (the "Attestation Report"), and all servicing
reports, officer's certificates and other information relating to the
servicing of the Mortgage Loans by the Company during 200[ ] that were
delivered by the Company to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the "Company
Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of
the circumstances under which such statements were made, not misleading with
respect to the period of time covered by the Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information required
to be provided by the Company under the Agreement has been provided to the
[Depositor] [Master Servicer] [Securities Administrator] [Trustee];
(4) I am responsible for reviewing the activities performed by the Company
as servicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Servicing Assessment or the Attestation
Report, the Company has fulfilled its obligations under the Agreement in all
material respects; and
(5) The Compliance Statement required to be delivered by the Company
pursuant to the Agreement, and the Servicing Assessment and Attestation Report
required to be provided by the Company and by any Subservicer and
Subcontractor pursuant to the Agreement, have been provided to the [Depositor]
[Master Servicer]. Any material instances of noncompliance described in such
reports have been disclosed to the [Depositor] [Master Servicer]. Any material
instance of noncompliance with the Servicing Criteria has been disclosed in
such reports.
EXH. A-1-1
Date:
------------------------------------
By:
------------------------------------
Name:
Title:
EXH. B-1-2
EXHIBIT B-1
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of Subservicer] shall address, at a minimum,
the criteria identified as below as "Applicable Servicing Criteria";
-----------------------------------------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------
General Servicing Considerations
-----------------------------------------------------------------------------------------------------------------
Policies and procedures are instituted to monitor any performance or
other triggers and events of default in accordance with the X
1122(d)(1)(i) transaction agreements.
-----------------------------------------------------------------------------------------------------------------
If any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party's X
1122(d)(1)(ii) performance and compliance with such servicing activities.
-----------------------------------------------------------------------------------------------------------------
Any requirements in the transaction agreements to maintain a back-up
1122(d)(1)(iii) servicer for the mortgage loans are maintained.
-----------------------------------------------------------------------------------------------------------------
A fidelity bond and errors and omissions policy is in effect on the
party participating in the servicing function throughout the reporting X
1122(d)(1)(iv) period in the amount of coverage required by and otherwise in
accordance with the terms of the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Cash Collection and Administration
-----------------------------------------------------------------------------------------------------------------
Payments on mortgage loans are deposited into the appropriate X
custodial bank accounts and related bank
clearing accounts no more than two
1122(d)(2)(i) business days following receipt, or such other number of
days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Disbursements made via wire transfer on behalf of an obligor or
1122(d)(2)(ii) to an investor are made only by authorized personnel. X
-----------------------------------------------------------------------------------------------------------------
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 X
1122(d)(2)(iii) approved as specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
EXH.B-1-1
-----------------------------------------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------
The related accounts for the transaction, such as cash reserve
accounts or accounts established as a form of overcollateralization, X
are separately maintained (e.g., with respect to commingling
1122(d)(2)(iv) of cash) as set forth in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this criterion, X
"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
1122(d)(2)(v) Exchange Act.
-----------------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. X
-----------------------------------------------------------------------------------------------------------------
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 X
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
1122(d)(2)(vii) reconciling items. These reconciling items are resolved
within 90 calendar days of their original
identification, or such other number of days specified
in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
--------------------------------------------------------------------------
EXH.B-1-2
-----------------------------------------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------
Pool Asset Administration
-----------------------------------------------------------------------------------------------------------------
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
1122(d)(3)(i) Servicer.
-----------------------------------------------------------------------------------------------------------------
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and
other terms set forth in the
1122(d)(3)(ii) transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or
1122(d)(3)(iii) such other number of days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment,
1122(d)(3)(iv) or custodial bank statements.
-----------------------------------------------------------------------------------------------------------------
Pool Asset Administration
-----------------------------------------------------------------------------------------------------------------
Collateral or security on mortgage loans is maintained
1122(d)(4)(i) as required by the transaction agreements or related X
mortgage loan documents.
-----------------------------------------------------------------------------------------------------------------
Mortgage loan and related documents are safeguarded as required by the
1122(d)(4)(ii) transaction agreements X
-----------------------------------------------------------------------------------------------------------------
Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance with
1122(d)(4)(iii) any conditions or requirements in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
EXH.B-1-3
-----------------------------------------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------
Payments on mortgage loans, including any payoffs, made
in accordance with the related mortgage loan documents
are posted to the Servicer's obligor records maintained
no more than two business days after receipt, or such X
other number of days specified in the transaction
agreements, and allocated to principal, interest or other
items (e.g., escrow) in accordance with the related
1122(d)(4)(iv) mortgage loan documents.
-----------------------------------------------------------------------------------------------------------------
The Servicer's records regarding the mortgage loans agree with the
1122(d)(4)(v) Servicer's records with respect to an obligor's unpaid principal X
balance.
-----------------------------------------------------------------------------------------------------------------
Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan modifications or
re-agings) are made, reviewed and approved by X
authorized personnel in accordance with the transaction
1122(d)(4)(vi) agreements and related pool asset documents.
-----------------------------------------------------------------------------------------------------------------
Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are X
initiated, conducted and concluded in accordance with
the timeframes or other requirements
1122(d)(4)(vii) established by the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Records documenting collection efforts are maintained during the period
a mortgage loan is delinquent in accordance with the transaction
agreements. Such records are maintained on at least a monthly basis, X
or such other period specified in the transaction agreements, and
describe the entity's activities in monitoring delinquent mortgage
1122(d)(4)(viii) loans including, for example, phone calls, letters and payment
rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
-----------------------------------------------------------------------------------------------------------------
Adjustments to interest rates or rates of return for mortgage loans
with variable rates are computed based on the related mortgage loan X
1122( d)( 4 )(ix) documents.
------------------------------------------------------------------------------------------------
EXH.B-1-4
-----------------------------------------------------------------------------------------------------------------
Applicable
Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------
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 X
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
1122( d)( 4 )(x) the related mortgage loans, or such other number of days
specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the X
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
1122( d)( 4 )(xi) other number of days specified in the transaction
agreements.
-----------------------------------------------------------------------------------------------------------------
Any late payment penalties in connection with any
payment to be made on behalf of an obligor are paid from
the servicer's funds and not charged to the obligor, X
unless the late payment was due to the obligor's
1122(d)(4)(xii) error or omission.
-----------------------------------------------------------------------------------------------------------------
Disbursements made on behalf of an obligor are posted within two
business days to the obligor's records maintained by the servicer, or X
1122(d)(4)(xiii) such other number of days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Delinquencies, charge-offs and uncollectible accounts are recognized
1122(d)(4)(xiv) and recorded in accordance with the transaction agreements. X
-----------------------------------------------------------------------------------------------------------------
Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained
1122(d)(4)(xv) as set forth in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
EXH.B-1-5
[PHH MORTGAGE CORPORATION] [NAME OF
SUBSERVICER]
Date:
------------------------------------
By:
------------------------------------
Name:
Title:
EXH.B-1-6
