EXHIBIT 99.17
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (the "Assignment") is
dated as of September 1, 2006, by and among Xxxxxxx Xxxxx Mortgage Lending,
Inc., having an address at World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Assignor"), Xxxxxxx Xxxxx Mortgage Investors, Inc., having an
address at 4 World Financial Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Assignee") and PHH Mortgage Corporation, formerly known as Cendant Mortgage
Corporation, having an address at 0000 Xxxxxxxxxx Xx, Xx. Xxxxxx, Xxx Xxxxxx
00000 (the "Servicer").
WHEREAS, the Servicer, Xxxxxx'x Gate Residential Mortgage Trust ("Xxxxxx'x
Gate") and Xxxxxxx Xxxxx Mortgage Capital, Inc. ("MLMC"), as Purchaser entered
into that certain Mortgage Loan Flow Purchase, Sale and Servicing Agreement,
dated as of March 27, 2001 (the "Purchase, Sale and Servicing Agreement"), among
MLMC, the Servicer and Xxxxxx'x Gate;
WHEREAS, the Servicer has agreed to service those mortgage loans identified
on Exhibit A attached hereto (the "Mortgage Loans") in accordance with the
servicing provisions contained in the Purchase, Sale and Servicing Agreement;
WHEREAS MLMC assigned its rights under the Purchase, Sale and Servicing
Agreement to Assignor pursuant to that certain Assignment Agreement dated as of
September 1, 2006 among MLMC, Assignor and the Servicer (the "MLMC AAR
Agreement"); and
WHEREAS, the Assignor wishes to assign to Assignee all of its right, title
and interest with respect to the Mortgage Loans and all of its right, title and
interest under the Purchase, Sale and Servicing Agreement and the MLMC AAR
Agreement, with respect to the Mortgage Loans, and Assignee wishes to assume all
of Assignor's right, title and interest in and to such Mortgage Loans as
provided in the Purchase, Sale and Servicing Agreement and the MLMC AAR
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, and of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. Defined terms used in this Assignment and not otherwise defined herein
shall have the meaning set forth in the Purchase, Sale and Servicing Agreement.
2. The Assignor specifically reserves and does not assign to the Assignee
hereunder any and all right, title and interest in, to and under and all
obligations of the Assignor with respect to any mortgage loans subject to the
Purchase, Sale and Servicing Agreement and the MLMC AAR Agreement which are not
the Mortgage Loans set forth on Exhibit A attached hereto and are not the
subject of this Agreement.
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3. The Assignor warrants and represents to the Assignee and to the Servicer
as of the date hereof:
(a) Attached hereto as Exhibit B are true and accurate copies of the
Purchase, Sale and Servicing Agreement and the MLMC AAR Agreement,
which agreements are in full force and effect as of the date hereof
and the provisions of which have not been waived, amended or modified
in any respect, nor has any notice of termination been given
thereunder;
(b) The Assignor was the lawful owner of the Mortgage Loans with full
right to transfer the Mortgage Loans and any and all of its interests,
rights and obligations under the Purchase, Sale and Servicing
Agreement and the MLMC AAR Agreement as they relate to the Mortgage
Loans, free and clear from any and all claims and encumbrances; and
upon the transfer of the Mortgage Loans to the Assignee as
contemplated herein, the Assignee shall have good title to each and
every Mortgage Loan, as well as any and all of the Assignor's
interests, rights and obligations under the Purchase, Sale and
Servicing Agreement and the MLMC AAR Agreement as they relate to the
Mortgage Loans, free and clear of any and all liens, claims and
encumbrances;
(c) There are no offsets, counterclaims or other defenses available to the
Assignor with respect to the Mortgage Loans, the Purchase, Sale and
Servicing Agreement or the MLMC AAR Agreement;
(d) The Assignor has no knowledge of, and has not received notice of, any
waivers under, or any modification of, any Mortgage Loan;
(e) The Assignor is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all
requisite power and authority to acquire, own and sell the Mortgage
Loans;
(f) The Assignor has full corporate power and authority to execute,
deliver and perform its obligations under this Assignment, and to
consummate the transactions set forth herein. The consummation of the
transactions contemplated by this Assignment is in the ordinary course
of the Assignor's business and will not conflict with, or result in a
breach of, any of the terms, conditions or provisions of the
Assignor's charter or by-laws or any legal restriction, or any
material agreement or instrument to which Assignor 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 Assignor or its
property is subject. The execution, delivery and performance by the
Assignor of this Assignment and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all
necessary corporate action on part of the Assignor. This Assignment
has been duly
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executed and delivered by the Assignor and, upon the due
authorization, execution and delivery by the Assignee and the
Servicer, will constitute the valid and legally binding obligation of
the Assignor enforceable against the Assignor 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; and
(g) 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 Assignor in connection with the execution,
delivery or performance by the Assignor of this Assignment, or the
consummation by it of the transactions contemplated hereby. Neither
the Assignor nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of the Mortgage Loans or any
interest in the Mortgage Loans, or solicited any offer to buy or
accept a transfer, pledge or other disposition of the Mortgage Loans,
or any interest in the Mortgage Loans or otherwise approached or
negotiated with respect to the Mortgage Loans, or any interest in the
Mortgage Loans with any Person in any manner, or made any general
solicitation by means of general advertising or in any other manner,
or taken any other action which would constitute a distribution of the
Mortgage Loans under the Securities Act of 1933, as amended (the "1933
Act") or which would render the disposition of the Mortgage Loans a
violation of Section 5 of the 1933 Act or require registration
pursuant thereto.
4. The Assignee represents, warrants and covenants with the Assignor and
the Servicer that:
(a) The Assignee is a corporation, duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation,
and has all requisite power and authority to acquire, own and purchase
the Mortgage Loans;
(b) The Assignee has full power and authority to execute, deliver and
perform under this Assignment, and to consummate the transactions set
forth herein. The consummation of the transactions contemplated by
this Assignment is in the ordinary course of the Assignee's business
and will not conflict with, or result in a breach of, any of the
terms, conditions or provisions of the Assignee's charter or bylaws,
or any legal restriction, or any material agreement or instrument to
which the Assignee 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 the Assignee or its property is subject. The
execution, delivery and performance by the Assignee of this Assignment
and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action of the
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Assignee. This Assignment has been duly executed and delivered by the
Assignee and, upon the due authorization, execution and delivery by
the Assignor and the Servicer, will constitute the valid and legally
binding obligation of the Assignee enforceable against the Assignee in
accordance with its terms, except as enforceability thereof may be
limited by bankruptcy, insolvency, or reorganization or other similar
laws now or hereinafter in effect relating to creditor's rights
generally and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or in law;
(c) No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is
required to be obtained or made by the Assignee in connection with the
execution, delivery or performance by the Assignee of this Assignment,
or the consummation by it of the transactions contemplated hereby;
(d) There is no action, suit, proceeding, investigation or litigation
pending or, to the Assignee's knowledge, threatened, which either in
any instance or in the aggregate, if determined adversely to the
Assignee, would adversely affect the Assignee's execution or delivery
of, or the enforceability of, this Assignment, or the Assignee's
ability to perform its obligations under this Assignment; and
(e) The Assignee assumes for the benefit of the Trust, all of the rights
of the Purchaser under the Purchase, Sale and Servicing Agreement and
the MLMC AAR Agreement with respect to the Mortgage Loans listed on
Exhibit A, including the right to enforce the obligations of the
Servicer under the Purchase, Sale and Servicing Agreement as they
relate to the servicing of the Mortgage Loans.
5. The Servicer warrants and represents to, and covenants with, Assignor
and Assignee as of the date hereof:
(a) Attached hereto as Exhibit B is a true and accurate copy of the
Purchase, Sale and Servicing Agreement which agreement is in full
force and effect as of the date hereof and the provisions of which
have not been waived, amended or modified in any respect, nor has any
notice of termination been given thereunder;
(b) The Servicer is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and the
Servicer has all requisite power and authority to service the Mortgage
Loans and the Servicer has all requisite power and authority to
perform its obligations under the Purchase, Sale and Servicing
Agreement;
(c) The Servicer has full corporate power and authority to execute,
deliver and
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perform its obligations under this Assignment, and to consummate the
transactions set forth herein. The consummation of the transactions
contemplated by this Assignment is in the ordinary course of the
Servicer's business and will not conflict with, or result in a breach
of, any of the terms, conditions or provisions of its charter or
by-laws or any legal restriction, or any material agreement or
instrument to which it 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 the Servicer or its property is subject. The
execution, delivery and performance by the Servicer of this Assignment
and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on the
part of the Servicer. This Assignment has been duly executed and
delivered by the Servicer, and, upon the due authorization, execution
and delivery by Assignor and Assignee, will constitute the valid and
legally binding obligation of the Servicer, enforceable against the
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;
(d) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be
obtained or made by Assignee in connection with the execution,
delivery or performance by the Servicer of this Assignment, or the
consummation by it of the transactions contemplated hereby; and
(e) The Servicer shall establish a Collection Account and an Escrow
Account as described under the Purchase, Sale and Servicing Agreement
in favor of Assignee with respect to the Mortgage Loans separate from
the Collection Account and Escrow Account previously established under
the Purchase, Sale and Servicing Agreement in favor of MLMC.
6. The Servicer hereby acknowledges that Xxxxx Fargo Bank, N.A. (the
"Master Servicer" and "Securities Administrator") has been appointed as the
master servicer of the Mortgage Loans pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of September 1,
2006, among the Assignee, HSBC Bank USA, National Association and Xxxxx Fargo
Bank, N.A. as the Master Servicer and Securities Administrator. The Servicer
shall deliver all reports required to be delivered under the Purchase, Sale and
Servicing Agreement to:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
0
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Mortgage Investors, Inc., Series 2006-AF1
Recognition of Assignee
7. From and after the date hereof the Servicer shall recognize the Assignee
as owner of the Mortgage Loans, and acknowledges that the Mortgage Loans will be
part of a REMIC. The Servicer will service the Mortgage Loans in accordance with
the servicing provisions contained in the Purchase, Sale and Servicing
Agreement, but in no event in a manner that would (i) cause the REMIC to fail to
qualify as a REMIC or (ii) result in the imposition of a tax upon the 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). It is the intention of the Assignor, the
Servicer and the Assignee that this Assignment shall be binding upon and for the
benefit of the respective successors and assigns of the parties hereto. Neither
the Servicer nor the Assignor shall amend or agree to amend, modify, waive, or
otherwise alter any of the terms or provisions of the Purchase, Sale and
Servicing Agreement, which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans without the prior written consent of
the Assignee.
In addition, the Servicer hereby acknowledges that from and after the date
hereof, the Mortgage Loans will be subject to the terms and conditions of the
Pooling and Servicing Agreement pursuant to which the Master Servicer has the
right to monitor the performance by the Servicer of its servicing obligations
under the Purchase, Sale and Servicing Agreement. Such right will include,
without limitation, the right to terminate the Servicer under the Purchase, Sale
and Servicing 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 Purchase, Sale and Servicing Agreement, the right to receive all monthly
reports and other data required to be delivered by the Servicer under the
Purchase, Sale and Servicing 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 the
Servicer. In connection therewith, the Servicer hereby agrees to make all
remittances required under the Purchase, Sale and Servicing Agreement with
respect to the Mortgage Loans to the Master Servicer for the benefit of the
Assignee in accordance with the following wire transfer instructions:
Xxxxx Fargo Bank, N.A.
ABA #000-000-000
Account Name: Corporate Trust Clearing
Account # 0000000000
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For Further Credit to: MLMI 2006-AF1, Account # 00000000
Applicable statements should be mailed to Xxxxx Fargo Bank, National
Association, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, 00000, Attention:
Xxxxxxx Xxxxx Mortgage Investors, Inc., Series 2006-AF1.
It is the intention of the Assignor, the Servicer and the Assignee that
this Assignment will be a separate and distinct servicing agreement between the
Assignee and the Servicer, to the extent of the Mortgage Loans, and shall be
binding upon and for the benefit of the respective successors and assigns of the
parties hereto. Neither the Servicer nor the Assignor shall amend or agree to
amend, modify, waive, or otherwise alter any of the terms or provisions of the
Purchase, Sale and Servicing Agreement which amendment, modification, waiver or
other alteration would in any way affect the Mortgage Loans without the prior
written consent of the Assignee.
8. Modification of the Purchase, Sale and Servicing Agreement:
The Servicer and the Assignor hereby amend the Purchase, Sale and Servicing
Agreement as follows:
(a) The following definitions are added to Section 1.01:
Commission: The United States Securities and Exchange Commission.
Closing Date: September 28, 2006.
Depositor: Xxxxxxx Xxxxx Mortgage Investors, Inc.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Master Servicer: Xxxxx Fargo Bank, N.A. or its successors in interest.
Prepayment Interest Shortfall: With respect to any Remittance Date,
for each Mortgage Loan that was the subject of a Principal Prepayment
in full during the related Monthly Period, an amount equal to the
excess of one month's interest at the applicable Note Rate on the
amount of such Principal Prepayment over the amount of interest
(adjusted to the Note Rate) actually paid by the related Mortgagor
with respect to such Monthly Period.
Regulation AB: Subpart 229.1100 -- Asset Backed Securities (Regulation
AB), 17 C.F.R. Sections 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
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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.
Relevant Servicing Criteria: as defined in Section 7A.05.
REMIC Provisions: The provisions of the federal income tax law
relating to REMICs, which appear at Sections 860A through 860G of the
Code, and related provisions and regulations promulgated thereunder,
as the foregoing may be in effect from time to time.
Responsible Officer: means any vice president, any managing director,
any director, any associate, any assistant vice president, any
assistant secretary, any assistant treasurer or any other officer or
employee of the Servicer customarily performing functions similar to
those performed by any of the above designated officers and also to
whom, with respect to a particular matter, such matter is referred
because of such officer's or employee's knowledge of and familiarity
with the particular subject and in each case who shall have direct
responsibility for the administration of the Agreement.
Securities Act: The Securities Act of 1933, as amended.
Securities Administrator: Xxxxx Fargo Bank, N.A.
Servicer Information: As provided in Section 7A.07(a)(i)(A).
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d)
of Regulation AB, as such may be amended from time to time.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgage-backed securities market)
of Mortgage Loans but performs one or more discrete material functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage
Loans under the direction or authority of the Servicer or a
Subservicer.
Subservicer: Any Person that services Mortgage Loans 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 the Purchase, Sale and Servicing
Agreement or this Assignment 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 the Depositor, Assignor or investor, nor any "back-up
servicer" or trustee
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performing servicing functions in connection with this Assignment or
under the Purchase Sale and Servicing Agreement.
Trustee: HSBC Bank USA, National Association.
(b) The definition of Business Day is deleted in its entirety and replaced
with the following:
"Business Day: Any day other than (i) a Saturday or Sunday, or (ii) a day
on which the Federal Reserve is closed, or (iii) a day on which banking
institutions in the jurisdiction in which the Master Servicer is authorized or
obligated by law or executive order to be closed."
(c) The definition of Eligible Account is deleted in its entirety and
replaced with the following:
"Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company, the
long-term unsecured debt obligations and short-term unsecured debt obligations
of which (or, in the case of a depository institution or trust company that is
the principal subsidiary of a holding company, the debt obligations of such
holding company, so long as Xxxxx'x is not a Rating Agency) are rated by each
Rating Agency in one of its two highest long-term and its highest short-term
rating categories respectively, at the time any amounts are held on deposit
therein, or (ii) an account or accounts in a depository institution or trust
company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee and to each Rating Agency, the Certificateholders have a claim with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a trust account or accounts maintained with
the corporate trust department of a federal or state chartered depository
institution or trust company having capital and surplus of not less than
$50,000,000, acting in its fiduciary capacity or (iv) any other account
acceptable to the Rating Agencies or Xxxxxx Xxx. Eligible Accounts may bear
interest, and may include, if otherwise qualified under this definition,
accounts maintained with the Trustee."
(d) The following is added as clause (10) to Section 5.04 of the Purchase,
Sale and Servicing Agreement:
"(10) with respect to each Principal Prepayment in full, any Prepayment
Interest Shortfall, to the extent of the Servicer's aggregate Servicing Fee
received with respect to the related Monthly Period."
(e) The following paragraphs are added after the second paragraph of
Section 5.13 of the Purchase, Sale and Servicing Agreement:
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"Notwithstanding anything in this Agreement to the contrary, the Servicer
(a) shall not permit any modification with respect to any Mortgage Loan that
would change the Mortgage Interest Rate and (b) shall not (unless with respect
to clause (i) only, the Mortgagor is in default with respect to the Mortgage
Loan or such default is, in the judgment of the Servicer, reasonably
foreseeable) make or permit any modification, waiver or amendment of any term of
any Mortgage Loan that would (i) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or Treasury regulations
promulgated thereunder) or (ii) cause the Trust Fund to fail to qualify as a
REMIC under the Code or the imposition of any tax on "prohibited transactions"
or "contributions" after the startup date under the REMIC Provisions.
Prior to taking any action with respect to the Mortgage Loans which is not
contemplated under the terms of this Agreement, the Servicer will obtain an
Opinion of Counsel acceptable to the Trustee to the effect that such action will
not result in the imposition of a tax upon the 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) (either such event, an "Adverse REMIC Event"), and the Servicer shall not
take any such action or cause the Trust Fund to take any such action as to which
it has been advised that an Adverse REMIC Event will occur.
The Servicer shall not permit the creation of any "interests" (within the
meaning of Section 860G of the Code) in the REMIC. The Servicer shall not enter
into any arrangement by which the REMIC will receive a fee or other compensation
for services nor permit the REMIC to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code.
Any REO Property shall be disposed of by the Servicer before the close of
the third taxable year following the taxable year in which the Mortgage Loan
became an REO Property, unless the Servicer is otherwise directed by the
Assignee."
(f) The following sentence is added to the end of Section 6.01(1) of the
Purchase, Sale and Servicing Agreement:
"Notwithstanding anything herein to the contrary, on each Remittance Date,
the Servicer shall remit Payoffs, with interest as set forth herein, collected
in the month prior to the Remittance Date."
(g) The following sentence is added to the end of the first paragraph of
Section 6.02 of the Purchase, Sale and Servicing Agreement:
"In addition, no later than the fifth (5th) calendar day of each month (or
if such fifth day is not a Business Day, the Business Day immediately preceding
such fifth day), the Servicer shall forward to the Master Servicer reports in
the format set forth in Exhibit C, Exhibit D and Exhibit E to the Assignment,
Assumption and Recognition Agreement, dated as of September 1, 2006,
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among Xxxxxxx Xxxxx Mortgage Lending, Inc., Xxxxxxx Xxxxx Mortgage Investors,
Inc. and the Servicer (or such other content and format, with respect to Exhibit
C, as mutually agreed by the Servicer and the Master Servicer), with respect to
defaulted Mortgage Loans and realized loss calculations, respectively."
(h) All references in Section 7.02 of the Purchase, Sale and Servicing
Agreement to "Purchaser" shall be deleted and replaced with "Purchaser or its
designee."
(i) Section 7.04 shall be deleted and replaced and marked "[Reserved]."
(j) Section 7.05 shall be deleted, and marked "[Reserved]."
(k) The following shall be added as Section 12.12 of the Purchase, Sale and
Servicing Agreement:
"Third Party Beneficiary. For purposes of this Agreement, 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."
(l) The following shall be inserted into the agreement as Article 7A,
entitled "Compliance with Regulation AB":
Section 7A.01 Compliance with Regulation AB.
Each of the parties hereto acknowledges and agrees that the purpose of this
Article 7A is to facilitate compliance by the Master Servicer and the Depositor
with the provisions of Regulation AB, as such may be amended or clarified from
time to time. Therefore, each of the parties agrees that the parties'
obligations hereunder will be supplemented and modified as necessary to be
consistent with any such amendments, interpretive advice or guidance, convention
or consensus among active participants in the asset-backed securities markets,
advice of counsel, or otherwise in respect of the requirements of Regulation AB
and the parties shall comply with requests made by the Master Servicer or
Depositor for delivery of additional or different information as the Master
Servicer or Depositor may determine in good faith is necessary to comply with
the provisions of Regulation AB. Any such supplementation or modification may
result in a change in the reports filed by the Securities Administrator on
behalf of the Issuing Entity under the Exchange Act.
Section 7A.02 [Reserved].
Section 7A.03 Notices to be Provided by the Servicer.
(a) For the purpose of satisfying the reporting obligation under the Exchange
Act with respect to any class of asset-backed securities, the Servicer shall (or
shall cause each Subservicer to) (i) provide prompt notice to any Master
Servicer and any Depositor in writing of (A) any
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material litigation or governmental proceedings involving the Servicer or any
Subservicer, (B) any affiliations or relationships that develop following the
Closing Date between the Servicer or any Subservicer and any of the sponsor, the
depositor, the issuing entity, any servicer, any trustee, any originator, any
significant obligor, any enhancement or support provider and any other material
transaction party (and any other parties identified in writing by the requesting
party), (C) any Event of Default under the terms of this Agreement or any
applicable agreement, (D) any merger, consolidation or sale of substantially all
of the assets of the Servicer, and (E) the Servicer's entry into an agreement
with a Subservicer to perform or assist in the performance of any of the
Servicer's obligations under this Agreement or any Reconstitution Agreement and
(ii) provide to the Depositor a description of such proceedings, affiliations or
relationships.
(b) As a condition to the succession to the Servicer or any Subservicer as
servicer or subservicer under this Agreement or any Reconstitution Agreement by
any Person (i) into which the Servicer or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Servicer or
any Subservicer, the Servicer shall provide to any Master Servicer, and the
Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably requested
by the Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to any class of asset-backed securities.
(c) In addition to such information as the Servicer, 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, the Servicer or any Subservicer hired by the Servicer, as applicable,
shall, to the extent the Servicer or such Subservicer has knowledge, provide to
the Master Servicer notice of the occurrence of any of the following events
along with all information, data, and materials related thereto as may be
required to be included in the related distribution report on Form 10-D (as
specified in the provisions of Regulation AB referenced below):
(i) any material modifications, extensions or waivers of pool
asset terms, fees, penalties or payments during the distribution
period or that have cumulatively become material over time (Item
1121(a)(11) of Regulation AB);
(ii) material breaches of pool asset representations or
warranties or transaction covenants (Item 1121(a)(12) of Regulation
AB); and
(iii) information regarding new asset-backed securities issuances
backed by the same pool assets, any pool asset changes (such as,
additions, substitutions or repurchases), and any material changes in
origination, underwriting or other criteria for acquisition or
selection of pool assets (Item 1121(a)(14) of Regulation AB).
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(d) The Servicer 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 Servicer or any Subservicer or the Servicer or such
Subservicer's performance hereunder.
Section 7A.04 Servicer Compliance Statement.
Not later than March 1st for each calendar year (other than the calendar
year during which the Closing Date occurs), the Servicer shall deliver (or
otherwise make available) and the Servicer shall cause any Subservicer or
Subcontractor engaged by it to deliver to the Master Servicer, the Securities
Administrator and the Depositor an officer's certificate in the form attached
hereto as Exhibit Z-1 stating, as to each signatory thereof, that (i) a review
of the activities of such signatory during the preceding calendar year, or
portion thereof, and of the performance of such signatory under this Agreement
or such other applicable agreement in the case of a Subservicer or Subcontractor
has been made under such officer's supervision, and (ii) to the best of such
officer's knowledge, based on such review, such signatory has fulfilled all its
obligations under this Agreement or such other applicable agreement in all
material respects throughout such year or a portion thereof, or, if there has
been a failure to fulfill any such obligation in any material respect,
specifying each such failure known to such officer and the nature and status
thereof.
Section 7A.05 Report on Assessment of Compliance and Attestation.
(a) Not later than March 1st for each calendar year (other than the calendar
year during which the Closing Date occurs) the Servicer at its own expense,
shall furnish, and shall cause any Subservicer or Subcontractor engaged by it to
furnish (unless in the case of a Subcontractor, the Servicer has notified the
Depositor and the Master Servicer in writing that such compliance statement is
not required for the Subcontractor) to the Master Servicer, the Securities
Administrator and the Depositor an officer's assessment of its compliance with
the Servicing Criteria applicable to each such party set forth in Exhibit Y (the
"Relevant Servicing Criteria") during the preceding calendar year as required by
Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB (the
"Assessment of Compliance"), which assessment (a form of which is attached
hereto as Exhibit X) shall contain (A) a statement by such party of its
responsibility for assessing compliance with the Relevant Servicing Criteria,
(B) a statement that such party used the Relevant Servicing Criteria to assess
compliance with the Relevant Servicing Criteria, (C) such party's assessment of
compliance with the Relevant Servicing Criteria as of and for the fiscal year
covered by the most recent Form 10-K required to be filed in connection with the
Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2006-AF1, including, if there has
been any material instance of noncompliance with the Relevant Servicing
Criteria, a discussion of each such failure and the nature and status thereof,
which assessment shall be based on the
13
activities it performs with respect to asset-backed securities transactions
taken as a whole involving such party that are backed by the same asset type as
the Mortgage Loans, and (D) a statement that a registered public accounting firm
has issued an attestation report on such party's assessment of compliance with
the Relevant Servicing Criteria as of and for such period.
(b) Not later than March 1st for each calendar year (other than the calendar
year during which the Closing Date occurs) the Servicer at its own expense,
shall cause, and shall cause any Subservicer or Subcontractor engaged by it to
cause (unless in the case of a Subcontractor, the Servicer has notified the
Depositor and the Master Servicer in writing that such report is not required
for the Subcontractor) a nationally or regionally recognized firm of independent
registered public accountants (who may also render other services to the
Servicer, the Master Servicer or any affiliate thereof) which is a member of the
American Institute of Certified Public Accountants to furnish a report (the
"Accountant's Attestation") to the Master Servicer, the Securities Administrator
and the Depositor to the effect that (i) it has obtained a representation
regarding certain matters from the management of such party, which includes an
assertion that such party has complied with the Relevant Servicing Criteria, and
(ii) on the basis of an examination conducted by such firm in accordance with
standards for attestation engagements issued or adopted by the Public Servicer
Accounting Oversight Board, it is expressing an opinion as to whether such
party's compliance with the Relevant Servicing Criteria was fairly stated in all
material respects, or it cannot express an overall opinion regarding such
party's assessment of compliance with the Relevant Servicing Criteria. In the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such an
opinion. Such report must be available for general use and not contain
restricted use language. Such Accountant's 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.
In the event the Servicer or any Subservicer or Subcontractor engaged by the
Servicer is terminated, assigns its rights and duties under, or resigns pursuant
to the terms of, this Assignment, the Purchase, Sale and Servicing Agreement or
any sub-servicing agreement, as the case may be, such party shall cause a
registered public accounting firm to provide an attestation pursuant to this
Section 7A.05(b), or such other applicable agreement, notwithstanding any such
termination, assignment or resignation.
On or before March 1 of each calendar year, commencing in 2007, the Servicer
shall deliver, and cause each Subservicer and Subcontractor to provide, to the
Purchaser, any Depositor, any Master Servicer and any other Person that will be
responsible for signing the certification (a "Sarbanes Certification") required
by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section 302
of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed issuer with
respect to a securitization transaction a certification, signed by the
appropriate officer of the Servicer, in the form attached hereto as Exhibit Z.
The Servicer acknowledges that the parties identified in the paragraph
immediately preceding this may rely on the certification provided by the
Servicer pursuant to such clause in signing a Sarbanes Certification and filing
such with the Commission.
14
Section 7A.06 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
the Purchase, Sale and Servicing Agreement or this Assignment unless the
Servicer complies with the provisions of paragraph (a) 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 the Purchase, Sale and Servicing Agreement or this Assignment
unless the Servicer complies with the provisions of paragraph (b) of this
Section.
(a) It shall not be necessary for the Servicer to seek the consent of any Master
Servicer 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 Purchaser and the Depositor to comply with the provisions of this
Section and with Sections 7A.03, 7A.04, 7A.05 and 7A.07 of the Purchase, Sale
and Servicing Agreement to the same extent as if such Subservicer were the
Servicer and to provide the information required with respect to such
Subservicer under Section 7A.03 of this Agreement. The Servicer shall be
responsible for obtaining from each Subservicer and delivering to the Depositor
any servicer compliance statement required to be delivered by such Subservicer
under Section 7A.04, any assessment of compliance and attestation required to be
delivered by such Subservicer under Section 7A.05 and any certification required
to be delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 7A.05 as and when required to be delivered.
(b) It shall not be necessary for the Servicer to seek the consent of any Master
Servicer or the Depositor to the utilization of any Subcontractor. The Servicer
shall promptly upon request provide to any Master Servicer and the Depositor (or
any designee of the Depositor, such as an administrator) a written description
(in form and substance satisfactory to the Depositor and such Master Servicer)
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 Depositor to comply with
the provisions of Sections 7A.05 and 7A.07 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 Depositor any
assessment of compliance and attestation and the other certifications required
to be delivered by such Subservicer and such Subcontractor under Section 7A.05,
in each case as and when required to be delivered.
Section 7A.07 Indemnification; Remedies.
15
(a) The Servicer shall indemnify and hold harmless the Depositor, the Trustee,
the Securities Administrator and the Master Servicer and each of its officers,
directors and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon a breach of the
obligations of the Servicer under Sections 7A.03, 7A.04 or 7A.05 or the
Servicer's negligence, bad faith or willful misconduct in connection therewith.
In addition, the Servicer shall indemnify and hold harmless the Depositor and
each of its officers, directors and affiliates and the Master Servicer from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Annual Statement of Compliance,
the Assessment of Compliance, the Accountant's Attestation, Sarbanes
Certification, Exchange Act report disclosure or other information provided by
or on behalf of the Servicer or on behalf of any subservicer or subcontractor of
the Servicer pursuant to Sections 7A.03, 7A.04 or 7A.05 (the "Servicer
Information"), or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
provided, by way of clarification, that clause (ii) of this paragraph shall be
construed solely by reference to the Servicer Information and not to any other
information communicated in connection with the Certificates, without regard to
whether the Servicer Information or any portion thereof is presented together
with or separately from such other information.
If the indemnification provided for herein is unavailable or insufficient
to hold harmless the Depositor, the Trustee, the Securities Administrator or the
Master Servicer, as applicable, then the defaulting party, in connection with
any conduct for which it is providing indemnification for under this
Section7A.07, agrees that it shall contribute to the amount paid or payable by
the other parties as a result of the losses, claims, damages or liabilities of
the other party in such proportion as is appropriate to reflect the relative
fault and the relative benefit of the respective parties.
The indemnification provisions set forth in this Section 7A.07 shall
survive the termination of the Purchase, Sale and Servicing Agreement or the
termination of any party to this Agreement.
The indemnity provided in this Section 7A.07 shall remain in full force and
effect regardless of any investigation made by the Master Servicer, the Trustee,
the Securities Administrator, Xxxxxxx Xxxxx Mortgage Investors Trust, Series
2006-AF1 or the Depositor or its representatives. The provisions of this Section
7A.07 shall survive the termination of this Agreement.
In the case of any failure of performance described in the first sentence
of this Section, the Servicer shall promptly reimburse the Depositor and the
Master Servicer for all costs reasonably incurred by each such party in order to
obtain the information, report, certification, accountants' letter or other
material not delivered as required by the Servicer, any Subservicer or any
Subcontractor.
16
(b) (i) Any failure by the Servicer, any Subservicer or any Subcontractor to
deliver any information, report, certification, accountants' letter or other
material when and as required under this Article 7A shall, except as provided in
clause (ii) of this paragraph, immediately and automatically, without notice or
grace period, constitute an Event of Default with respect to the Servicer under
this Agreement, and shall entitle the Depositor in its sole discretion to
terminate the rights and obligations of the Servicer as servicer under this
Agreement without payment (notwithstanding anything in this Agreement to the
contrary) of any compensation to the Servicer (and if the Servicer is servicing
any of the Mortgage Loans, appoint a successor servicer reasonably acceptable to
the Master Servicer); provided that to the extent that any provision of this
Agreement expressly provides for the survival of certain rights or obligations
following termination of the Servicer as servicer, such provision shall be given
effect.
(ii) Any failure by the Servicer, any Subservicer or any Subcontractor to
deliver any information, report, certification or accountants' letter when and
as required under Section 7A.04 or 7A.05, including any failure by the Servicer
to identify pursuant to Section 7A.06(b) any Subcontractor "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, which
continues unremedied for ten calendar days after the date on which such
information, report, certification or accountants' letter was required to be
delivered shall constitute an Event of Default with respect to the Servicer
under this Agreement, and shall entitle the Master Servicer or the Depositor, as
applicable, in its sole discretion to terminate the rights and obligations of
the Servicer as servicer under this Agreement without payment (notwithstanding
anything in this Agreement to the contrary) of any compensation to the Servicer;
provided that to the extent that any provision of this Agreement expressly
provides for the survival of certain rights or obligations following termination
of the Servicer as servicer, such provision shall be given effect.
(iii) The Servicer shall promptly reimburse the Master Servicer and the
Depositor, as applicable, for all reasonable expenses incurred by the Master
Servicer or the Depositor, as such are incurred, in connection with the
termination of the Servicer as servicer and the transfer of servicing of the
Mortgage Loans to a successor servicer. The provisions of this paragraph shall
not limit whatever rights the Master Servicer or the Depositor may have under
other provisions of this Agreement or otherwise, whether in equity or at law,
such as an action for damages, specific performance or injunctive relief.
Section 7A.08 Responsible Officers.
Any reference herein to the Servicer's knowledge, discovery or awareness,
or notice or identification to the Servicer, or a request to the Servicer, shall
be in each case be deemed to refer solely to the knowledge or awareness of, or
notice or identification to, or request of, a Responsible Officer of the
Servicer.
Section 7A.09. Third Party Beneficiary.
17
For purposes of this Article 7A and any related provisions thereto, the
Master Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereof as if it were a direct party to
this Agreement.
Section 7A.10. Exhibits.
(a) The Agreement is hereby amended by inserting Exhibit X attached hereto at
the end thereto.
(b) The Agreement is hereby amended by inserting Exhibit Y attached hereto at
the end thereto.
(c) The Agreement is hereby amended by inserting Exhibit Z attached hereto at
the end thereto.
(d) The Agreement is hereby amended by inserting Exhibit Z-1 attached hereto at
the end thereto.
9. Indemnification by Master Servicer.
The Master Servicer shall indemnify and hold harmless the Servicer and its
affiliates, and in each case, its officers, directors and agents 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 Master Servicer or any of its officers, directors,
agents or affiliates of its obligations in connection with the preparation,
filing and certification of any Form 10-K under Section 3.18 of the Pooling and
Servicing Agreement or the negligence, bad faith or willful misconduct of the
Master Servicer in connection therewith.
10. Notice Addresses.
If to the Assignor:
Xxxxxxx Xxxxx Mortgage Lending, Inc.
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLMI 2006-AF1
If to the Assignee:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLMI 2006-AF1
18
If to the Servicer:
PHH Mortgage Corporation
0000 Xxxxxxxxxx Xxxx
Mail Stop SVPM
Xx. Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxx
11. This Assignment shall be construed in accordance with the substantive
laws of the State of New York (without regard to conflict of laws principles)
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws, except to the extent preempted by
federal law.
12. From and after the date hereof, the Servicer, as servicer shall
recognize the Assignee as the owner of the Mortgage Loans, and the Servicer will
service the Mortgage Loans in accordance with the servicing provisions contained
in the Purchase, Sale and Servicing Agreement for the benefit of the Assignee,
and shall look solely to the Assignee for performance of the obligations of
Purchaser under the Purchase, Sale and Servicing Agreement with respect to the
Mortgage Loans. From and after the date hereof, the Assignee shall recognize the
Servicer as the servicer of the Mortgage Loans, and shall look solely to the
Servicer for performance of the obligations of the Servicer under the Purchase,
Sale and Servicing Agreement with respect to the Mortgage Loans.
13. This Assignment shall inure to the benefit of the successors and
assigns of the parties hereto. Any entity into which the Servicer, the Assignor
or the Assignee may be merged or consolidated shall, without the requirement for
any further writing, be deemed the Servicer, the Assignor or the Assignee,
respectively, hereunder.
14. No term or provision of this Assignment may be waived or modified
unless such waiver or modification is in writing and signed by the parties
hereto, including the aknowledgment parties.
15. This Assignment shall survive the conveyance of the Mortgage Loans and
the assignment of the Purchase, Sale and Servicing Agreement to the extent of
the Mortgage Loans by the Assignor to the Assignee and the termination of the
Purchase, Sale and Servicing Agreement.
16. This Assignment may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute and be one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
19
IN WITNESS WHEREOF, the parties have caused this Assignment, Assumption and
Recognition Agreement to be executed by their duly authorized officers as of the
date first above written.
XXXXXXX XXXXX MORTGAGE
LENDING, INC.
THE ASSIGNOR
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXXXXX XXXXX MORTGAGE
INVESTORS, INC.,
THE ASSIGNEE
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
PHH MORTGAGE CORPORATION,
THE SERVICER
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
ACKNOWLEDGED AND AGREED
XXXXX FARGO BANK, N.A.
THE MASTER SERVICER
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
20
EXHIBIT A
Mortgage Loan Schedule
(Provided Upon Request)
21
EXHIBIT B
Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated as of March 27,
2001.
22
EXHIBIT C
Data must be submitted to Xxxxx Fargo Bank in an EXCEL spreadsheet format with
fixed field names and data type. The EXCEL spreadsheet should be used as a
template consistently every month when submitting data.
STANDARD FILE LAYOUT - MASTER SERVICING
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT MAX SIZE
----------- ------------------------------------ ------- ------------------------------ --------
SER_INVESTOR_NBR A value assigned by the Servicer to Text up to 10 digits 20
define a group of loans.
LOAN_NBR A unique identifier assigned to each Text up to 10 digits 10
loan by the investor.
SERVICER_LOAN_NBR A unique number assigned to a loan Text up to 10 digits 10
by the Servicer. This may be
different than the LOAN_NBR.
BORROWER_NAME The borrower name as received in the Maximum length of 30 (Last, 30
file. It is not separated by first First)
and last name.
SCHED_PAY_AMT Scheduled monthly principal and 2 No commas(,) or dollar signs 11
scheduled interest payment that a ($)
borrower is expected to pay, P&I
constant.
NOTE_INT_RATE The loan interest rate as reported 4 Max length of 6 6
by the Servicer.
NET_INT_RATE The loan gross interest rate less 4 Max length of 6 6
the service fee rate as reported by
the Servicer.
SERV_FEE_RATE The servicer's fee rate for a loan 4 Max length of 6 6
as reported by the Servicer.
SERV_FEE_AMT The servicer's fee amount for a loan 2 No commas(,) or dollar signs 11
as reported by the Servicer. ($)
NEW_PAY_AMT The new loan payment amount as 2 No commas(,) or dollar signs 11
reported by the Servicer. ($)
NEW_LOAN_RATE The new loan rate as reported by the 4 Max length of 6 6
Servicer.
ARM_INDEX_RATE The index the Servicer is using to 4 Max length of 6 6
calculate a forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar signs 11
balance at the beginning of the ($)
processing cycle.
ACTL_END_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar signs 11
balance at the end of the processing ($)
cycle.
BORR_NEXT_PAY_DUE_DATE The date at the end of processing MM/DD/YYYY 10
cycle that the borrower's next
payment is due to the Servicer, as
reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount to be 2 No commas(,) or dollar signs 11
applied. ($)
SERV_CURT_DATE_1 The curtailment date associated with MM/DD/YYYY 10
the first curtailment amount.
CURT_ADJ_ AMT_1 The curtailment interest on the 2 No commas(,) or dollar signs 11
first curtailment amount, if ($)
applicable.
SERV_CURT_AMT_2 The second curtailment amount to be 2 No commas(,) or dollar signs 11
applied. ($)
23
SERV_CURT_DATE_2 The curtailment date associated with MM/DD/YYYY 10
the second curtailment amount.
CURT_ADJ_ AMT_2 The curtailment interest on the 2 No commas(,) or dollar signs 11
second curtailment amount, if ($)
applicable.
SERV_CURT_AMT_3 The third curtailment amount to be 2 No commas(,) or dollar signs 11
applied. ($)
SERV_CURT_DATE_3 The curtailment date associated with MM/DD/YYYY 10
the third curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on the 2 No commas(,) or dollar signs 11
third curtailment amount, if ($)
applicable.
PIF_AMT The loan "paid in full" amount as 2 No commas(,) or dollar signs 11
reported by the Servicer. ($)
PIF_DATE The paid in full date as reported by MM/DD/YYYY 10
the Servicer.
ACTION_CODE The standard FNMA numeric code used Action Code Key: 2
to indicate the default/delinquent 15=Bankruptcy, 30=Foreclosure,
status of a particular loan. , 60=PIF, 63=Substitution,
65=Repurchase,70=REO
INT_ADJ_AMT The amount of the interest 2 No commas(,) or dollar signs 11
adjustment as reported by the ($)
Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment 2 No commas(,) or dollar signs 11
amount, if applicable. ($)
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if 2 No commas(,) or dollar signs 11
applicable. ($)
LOAN_LOSS_AMT The amount the Servicer is passing 2 No commas(,) or dollar signs 11
as a loss, if applicable. ($)
SCHED_BEG_PRIN_ The scheduled outstanding principal 2 No commas(,) or dollar signs 11
BAL amount due at the beginning of the ($)
cycle date to be passed through to
investors.
SCHED_END_PRIN_ The scheduled principal balance due 2 No commas(,) or dollar signs 11
BAL to investors at the end of a ($)
processing cycle.
SCHED_PRIN_AMT The scheduled principal amount as 2 No commas(,) or dollar signs 11
reported by the Servicer for the ($)
current cycle -- only applicable for
Scheduled/Scheduled Loans.
SCHED_NET_INT The scheduled gross interest amount 2 No commas(,) or dollar signs 11
less the service fee amount for the ($)
current cycle as reported by the
Servicer -- only applicable for
Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount 2 No commas(,) or dollar signs 11
collected by the Servicer for the ($)
current reporting cycle -- only
applicable for Actual/Actual Loans.
ACTL_NET_INT The actual gross interest amount 2 No commas(,) or dollar signs 11
less the service fee amount for the ($)
current reporting cycle as reported
by the Servicer -- only applicable
for Actual/Actual Loans.
PREPAY_PENALTY_ AMT The penalty amount received when a 2 No commas(,) or dollar signs 11
borrower prepays on his loan as ($)
reported by the Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for 2 No commas(,) or dollar signs 11
the loan waived by the servicer. ($)
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
MOD_TYPE The Modification Type. Varchar - value can be alpha 30
or numeric
DELINQ_P&I_ADVANCE_AMT The current outstanding principal 2 No commas(,) or dollar signs 11
and interest advances made by ($)
Servicer.
24
EXHIBIT D
EXHIBIT D: 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.
(a)
(b) 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.
25
13. The total of lines 1 through 12.
(c) 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.
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 ( ).
26
EXHIBIT E
EXHIBIT E: STANDARD FILE LAYOUT - DELINQUENCY REPORTING
FORMAT
COLUMN/HEADER NAME DESCRIPTION DECIMAL 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 MM/DD/YYYY
payment is due to the 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 MM/DD/YYYY
was filed.
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 MM/DD/YYYY
has been approved by the courts
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From MM/DD/YYYY
Bankruptcy. Either by Dismissal,
Discharged and/or a Motion For Relief
Was Granted.
27
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was MM/DD/YYYY
Approved By The Servicer
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 MM/DD/YYYY
Scheduled To End/Close
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually MM/DD/YYYY
Completed
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the MM/DD/YYYY
servicer with instructions to begin
foreclosure proceedings.
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to MM/DD/YYYY
Pursue Foreclosure
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney MM/DD/YYYY
in a Foreclosure Action
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is MM/DD/YYYY
expected to occur.
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
FRCLSR_SALE_AMT The amount a property sold for at the 2 No commas(,) or
foreclosure sale. dollar signs ($)
EVICTION_START_DATE The date the servicer initiates eviction MM/DD/YYYY
of the borrower.
EVICTION_COMPLETED_DATE The date the court revokes legal MM/DD/YYYY
possession of the property from the
borrower.
LIST_PRICE The price at which an REO property is 2 No commas(,) or
marketed. dollar signs ($)
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
OFFER_AMT The dollar value of an offer for an REO 2 No commas(,) or
property. dollar signs ($)
OFFER_DATE_TIME The date an offer is received by DA MM/DD/YYYY
Admin or by the Servicer.
REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
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
28
property.
PROP_INSPECTION_DATE The date a property inspection is MM/DD/YYYY
performed.
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
CURR_PROP_VAL The current "as is" value of the 2
property based on brokers price opinion
or appraisal.
REPAIRED_PROP_VAL The amount the property would be worth 2
if repairs are completed 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 MM/DD/YYYY
With Mortgage Insurance Company.
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or
dollar signs ($)
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company MM/DD/YYYY
Disbursed Claim Payment
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid 2 No commas(,) or
On Claim dollar signs ($)
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance MM/DD/YYYY
Company
POOL_CLAIM_AMT Amount of Claim Filed With Pool 2 No commas(,) or
Insurance Company dollar signs ($)
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was MM/DD/YYYY
Issued By The Pool Insurer
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance 2 No commas(,) or
Company dollar signs ($)
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 ($)
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or
dollar signs ($)
29
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 MM/DD/YYYY
Veterans Admin
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim MM/DD/YYYY
Payment
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or
dollar signs ($)
EXHIBIT E: STANDARD FILE CODES - DELINQUENCY REPORTING
The LOSS MIT TYPE field should show the approved Loss Mitigation Code as
follows:
- ASUM- Approved Assumption
- BAP- Borrower Assistance Program
- CO- Charge Off
- DIL- Deed-in-Lieu
- FFA- Formal Forbearance Agreement
- MOD- Loan Modification
- PRE- Pre-Sale
- SS- Short Sale
- 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:
- Mortgagor
30
- Tenant
- Unknown
- Vacant
The PROPERTY CONDITION field should show the last reported condition of the
property as follows:
- Damaged
- Excellent
- Fair
- Gone
- Good
- Poor
- Special Hazard
- Unknown
EXHIBIT E: STANDARD FILE CODES - DELINQUENCY REPORTING, CONTINUED
The FNMA DELINQUENT REASON CODE field should show the Reason for Delinquency as
follows:
DELINQUENCY CODE DELINQUENCY DESCRIPTION
---------------- -----------------------
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
31
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
EXHIBIT E: 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
32
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
33
EXHIBIT X
FORM OF ASSESSMENT OF COMPLIANCE
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx Mortgage Investors Trust Series 2006-AF1
HSBC Bank USA, National
Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Loan Agency - Xxxxxxx Xxxxx Mortgage Investors
Trust Series 2006-AF1
Re: Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated as of
March 27, 2001 (the "Agreement"), among Xxxxxx'x Gate Residential
Mortgage Trust, as seller, Xxxxxxx Xxxxx Mortgage Capital, Inc., as
purchaser and PHH Mortgage Corporation, as servicer (the "Servicer"),
in connection with the Servicer's responsibilities [under] the Pooling
and Servicing Agreement, dated September 1, 2006, among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor, HSBC Bank USA, National
Association, as trustee, and Xxxxx Fargo Bank, N.A., as master
servicer and securities administrator, relating to Xxxxxxx Xxxxx
Mortgage Investors Trust, Series MLMI 2006-AF1 (the "Issuing Entity")
For the calendar year ending December 31, [2006] or portion thereof, [PHH
Mortgage Corporation, as a Servicer] [Xxxxx Fargo Bank, N.A., as [Master
Servicer] [Securities Administrator]] for the Issuing Entity has complied in all
material respects with the Relevant Servicing Criteria in Exhibit Y of the
Agreement.
All capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Agreement.
Date:
-------------------------------
[PHH MORTGAGE CORPORATION] [XXXXX
FARGO BANK, NATIONAL ASSOCIATION]
By:
------------------------------------
Name:
----------------------------------
34
Title:
---------------------------------
ACKNOWLEDGED AND AGREED:
[XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer]
[HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXXXXX XXXXX MORTGAGE INVESTORS,
INC., as Depositor
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
35
EXHIBIT Y
RELEVANT SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by PHH Mortgage Corporation
[Name of Subservicer] shall address, at a minimum, the criteria identified as
below as "Applicable Servicing Criteria":
SERVICING CRITERIA APPLICABLE
------------------------------------------------------------------------------------------------ SERVICING
REFERENCE CRITERIA CRITERIA
---------------- ----------------------------------------------------------------------------- ----------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other X
triggers and events of default in accordance with the transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, X
policies and procedures are instituted to monitor the third party's
performance and compliance with such servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up
servicer for the mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party X
participating in the servicing function throughout the reporting period in
the amount of coverage required by and otherwise in accordance with the terms
of the transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank X
accounts and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the transaction
agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an X
investor are made only by authorized personnel.
36
SERVICING CRITERIA APPLICABLE
------------------------------------------------------------------------------------------------ SERVICING
REFERENCE CRITERIA CRITERIA
---------------- ----------------------------------------------------------------------------- ----------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or X
distributions, and any interest or other fees charged for such advances, are
made, reviewed and approved as specified in the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or X
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.
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository X
institution as set forth in the transaction agreements. For purposes of this
criterion, "federally insured depository institution" with respect to a
foreign financial institution means a foreign financial institution that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. X
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed X
securities related bank accounts, including custodial accounts and related
bank clearing accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than the person who
prepared the reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar days of their
original identification, or such other number of days specified in the
transaction agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are X
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.
37
SERVICING CRITERIA APPLICABLE
------------------------------------------------------------------------------------------------ SERVICING
REFERENCE CRITERIA CRITERIA
---------------- ----------------------------------------------------------------------------- ----------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with X
timeframes, distribution priority and other terms set forth in the
transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the X
Servicer's investor records, or such other number of days specified in the
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled X
checks, or other form of payment, or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the X
transaction agreements or related mortgage loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the X
transaction agreements.
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed X
and approved in accordance with any conditions or requirements in the
transaction agreements.
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with X
the related mortgage loan documents are posted to the Servicer's obligor
records maintained no more than two business days after receipt, or such
other number of days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in accordance with the
related mortgage loan documents.
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's X
records with respect to an obligor's unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans X
(e.g., loan modifications or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the transaction agreements and
38
SERVICING CRITERIA APPLICABLE
------------------------------------------------------------------------------------------------ SERVICING
REFERENCE CRITERIA CRITERIA
---------------- ----------------------------------------------------------------------------- ----------
related pool asset documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications X
and deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the transaction agreements.
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a X
mortgage loan is delinquent in accordance with the transaction agreements.
Such records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with X
variable rates are computed based on the related mortgage loan documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): X
(A) such funds are analyzed, in accordance with the obligor's mortgage loan
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state
laws; and (C) such funds are returned to the obligor within 30 calendar days
of full repayment of the related mortgage loans, or such other number of days
specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are X
made on or before the related penalty or expiration dates, as indicated on
the appropriate bills or notices for such payments, provided that such
support has been received by the servicer at least 30 calendar days prior to
these dates, or such other number of days specified in the transaction
agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on X
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.
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business X
days to the obligor's records maintained by the servicer, or such other
number
39
SERVICING CRITERIA APPLICABLE
------------------------------------------------------------------------------------------------ SERVICING
REFERENCE CRITERIA CRITERIA
---------------- ----------------------------------------------------------------------------- ----------
of days specified in the transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and X
recorded in accordance with the transaction agreements.
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.
40
EXHIBIT Z
FORM OF BACK-UP CERTIFICATION
Re: The [_________________] agreement dated as of [_______], 200[_] (the
"Agreement"), among [IDENTIFY PARTIES]
I, ________________________________, the _______________________ of [NAME OF
COMPANY], certify to [the Purchaser], [the Depositor], and the Master Servicer
[,Trustee], and their officers, with the knowledge and intent that they will
rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the "Compliance Statement"), the
report on assessment of the Company's compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the "Servicing Criteria"), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934,
as amended (the "Exchange Act") and Item 1122 of Regulation AB (the "Servicing
Assessment"), the registered public accounting firm's attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act and
Section 1122(b) of Regulation AB (the "Attestation Report"), and all 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 [Xxxxx Fargo] 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 [Xxxxx
Fargo];
(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
41
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 [Xxxxx Fargo]. Any material instances of
noncompliance described in such reports have been disclosed to [Xxxxx Fargo].
Any material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Date:
----------------
By:
---------------------------------
Name:
-------------------------------
42
EXHIBIT Z-1
FORM OF ITEM 1123 CERTIFICATION OF SERVICER
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: Mortgage Loan Flow Purchase, Sale and Servicing Agreement, dated as of
March 27, 2001 (the "Agreement"), among Xxxxxx'x Gate Residential Mortgage
Trust, as seller, Xxxxxxx Xxxxx Mortgage Capital, Inc., as purchaser and
PHH Mortgage Corporation, as servicer (the "Servicer")
I, [identify name of certifying individual], [title of certifying individual] of
[[name of servicing company] (the "Servicer")], hereby certify that:
(1) A review of the activities of the Servicer during the preceding calendar
year and of the performance of the Servicer under the pooling and servicing
agreement (the "Agreement"), dated as of September 1, 2006, among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as depositor, HSBC Bank USA, National Association, as
trustee, Xxxxx Fargo Bank, N.A., as master servicer and securities administrator
has been made under my supervision; and
(2) To the best of my knowledge, based on such review, the Servicer has
fulfilled all its obligations [under] the Agreement in all material respects
throughout such year or a portion thereof[, or, if there has been a failure to
fulfill any such obligation in any material respect, I have specified below each
such failure known to me and the nature and status thereof].
Date:
----------------
[Servicer]
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
43
EXHIBIT 99.18
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (the "MLMC AAR") is
dated as of September 1, 2006, by and among Xxxxxxx Xxxxx Mortgage Capital,
Inc., 4 World Financial Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Assignor"), Xxxxxxx Xxxxx Mortgage Lending, Inc., having an address at 4 World
Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Assignee") and PHH
Mortgage Corporation, formerly known as Cendant Mortgage Corporation (the
"Servicer").
WHEREAS, the Servicer, Xxxxxx'x Gate Residential Mortgage Trust ("Xxxxxx'x
Gate") and the Assignor, as Purchaser entered into that certain Mortgage Loan
Flow Purchase, Sale and Servicing Agreement, dated as of March 27, 2001 (as
amended and in effect on the date hereof, the "Purchase, Sale and Servicing
Agreement"); and
WHEREAS, the Assignor wishes to assign to the Assignee all of its right,
title and interest with respect to those certain mortgage loans set out on
Exhibit A to the Assignment, Assumption and Recognition Agreement (the "PHH
AAR"), dated as of September 1, 2006, among the Assignee, Xxxxxxx Xxxxx Mortgage
Investors, Inc. ("MLMI") and the Servicer (the "Mortgage Loans") under the
Purchase, Sale and Servicing Agreement, with respect to the Mortgage Loans, and
Assignee wishes to assume all of Assignor's right, title and interest in and to
such Mortgage Loans as provided in the Purchase, Sale and Servicing Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, and of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
1. Definitions. Defined terms used in this Assignment and not otherwise
defined herein shall have the meaning set forth in the Purchase, Sale and
Servicing Agreement.
2. Assignment. The Assignor hereby assigns all of its right, title and
interest with respect to the Mortgage Loans, under the Purchase, Sale and
Servicing Agreement, to the Assignee.
3. Assumption. The Assignee hereby accepts such assignment and assumes all
of the rights, title and interest of the Assignor with respect to the Mortgage
Loans under the Purchase, Sale and Servicing Agreement.
4. Recognition. From and after the date hereof, the Servicer, as servicer
shall recognize the Assignee as the owner of the Mortgage Loans, and the
Servicer will service the Mortgage Loans in accordance with the servicing
provisions contained in the Purchase, Sale and Servicing Agreement for the
benefit of the Assignee, and shall look solely to the Assignee for performance
of the obligations of Assignor under the Purchase, Sale and Servicing Agreement
with respect to the Mortgage Loans. From and after the date hereof, the Assignee
shall recognize
the Servicer as the servicer of the Mortgage Loans, and shall look solely to the
Servicer for performance of the obligations of the Servicer under the Purchase,
Sale and Servicing Agreement with respect to the Mortgage Loans.
The Servicer is aware and understands that the Assignee will be further
assigning its right, title and interest to the Mortgage Loans under the
Purchase, Sale and Servicing Agreement to MLMI on the date hereof pursuant to
the PHH AAR.
5. Governing Law. This Assignment shall be construed in accordance with the
substantive laws of the State of New York (without regard to conflict of laws
principles) and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws, except to the extent preempted
by federal law.
6. Successors. This Assignment shall inure to the benefit of the successors
and assigns of the parties hereto. Any entity into which the Servicer, the
Assignor or the Assignee may be merged or consolidated shall, without the
requirement for any further writing, be deemed the Servicer, the Assignor or the
Assignee, respectively, hereunder.
7. No Waiver. No term or provision of this Assignment may be waived or
modified unless such waiver or modification is in writing and signed by the
parties hereto, including the aknowledgment parties.
8. Survival. This Assignment shall survive the conveyance of the Mortgage
Loans and the assignment of the Purchase, Sale and Servicing Agreement to the
extent of the Mortgage Loans by the Assignor to the Assignee and the termination
of the Purchase, Sale and Servicing Agreement.
9. Counterparts. This Assignment may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and such counterparts shall constitute and be one and the same
instrument.
[SIGNATURES ON FOLLOWING PAGE]
