ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Exhibit
99.17a
EXECUTION
VERSION
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated April 1, 2007,
(“Agreement”) among Xxxxxx Xxxxxxx Mortgage Capital Inc.
(“Assignor”), Xxxxxx Xxxxxxx Capital I Inc. (“Assignee”) and HSBC
Mortgage Corporation (USA) as seller (in such capacity, the “Seller”) and
servicer (in such capacity, the “Servicer”, and together with the Seller,
the “Company”) and acknowledged by LaSalle Bank National Association
(“LaSalle”), as trustee (the “Trustee”) of Xxxxxx Xxxxxxx Mortgage Loan
Trust 2007-7AX (the “Trust”) and Xxxxx Fargo Bank, National Association,
as master servicer (or any successor master servicer, the “Master
Servicer”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other 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:
Assignment
and Conveyance
1. (a) The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
all of the right, title and interest of the Assignor, as purchaser, in, to
and
under (a) those certain Mortgage Loans listed on the schedule (the “Mortgage
Loan Schedule”) attached hereto as Exhibit I (the “Mortgage Loans”)
and (b) except as described below, all of its rights and obligations under
that
certain Mortgage Loan Sale And Servicing Agreement (the “Sale and Servicing
Agreement”), dated as of August 1, 2005, between the Assignor, as purchaser
(the “Purchaser”), and the Company, as seller and servicer, solely
insofar as the Sale and Servicing Agreement relates to the Mortgage Loans (the
“First Assignment and Assumption”).
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations of the
Assignor with respect to (a) Subsection 7.04 of the Sale and Servicing
Agreement or (b) any mortgage loans subject to the Sale and Servicing Agreement
which are not the Mortgage Loans set forth on the Mortgage Loan Schedule and
are
not the subject of this Agreement.
(b) On
and of the date hereof, immediately after giving effect to the First Assignment
and Assumption, the Assignee hereby sells, assigns and transfers to the Trustee,
on behalf of the Trust, all of its right, title and interest in the Specified
Mortgage Loans and all rights and obligations related thereto as provided under
the Sale and Servicing Agreement to the extent relating to the Specified
Mortgage Loans, and the Trustee, on behalf of the Trust, hereby accepts such
assignment from the Assignee (the “Second Assignment and Assumption”),
and the Company hereby acknowledges the Second Assignment and
Assumption.
Recognition
of the Company
2. The
Company hereby acknowledges and agrees that from and after the date hereof
(i)
the Trust under the Pooling and Servicing Agreement dated as of April 1, 2007
(the “Pooling and Servicing Agreement”) among the Assignor, Xxxxx Fargo
Bank, National Association, as master servicer (the “Master Servicer”) and
securities administrator and the Trustee, will be the owner of the Mortgage
Loans, (ii) notwithstanding anything stated to the contrary herein, the Company
shall look solely to the Trust for performance of any obligations of the
Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Mortgage Loans, provided that
it is
understood and agreed that the Company shall look to Assignor for performance
of
any obligations of the Assignor that have not
been
assigned to Assignee and its successors as set forth herein, (iii) the Trust
(including the Trustee and, with respect to the servicing of the Mortgage Loans,
the Master Servicer acting on the Trust’s behalf) shall have all the rights and
remedies available to the Assignor, insofar as they relate to the Mortgage
Loans, under the Sale and Servicing Agreement, including, without limitation,
the enforcement of the document delivery requirements set forth in Section
6 of
the Sale and Servicing Agreement, and shall be entitled to enforce all of the
obligations of the Company thereunder insofar as they relate to the Mortgage
Loans, and (iv) all references to the Purchaser (insofar as they relate to
the
rights, title and interest and, with respect to obligations of the Purchaser,
only insofar as they relate to the enforcement of the representations,
warranties and covenants of the Company) under the Sale and Servicing Agreement
insofar as they relate to the Mortgage Loans, shall be deemed to refer to the
Trust (including the Trustee and the Master Servicer acting on the Trust’s
behalf). Neither the Company nor the Assignor shall amend or agree to
amend, modify, waiver, or otherwise alter any of the terms or provisions of
the
Sale and Servicing Agreement which amendment, modification, waiver or other
alteration would in any way affect the Mortgage Loans or the Company’s
performance under the Sale and Servicing Agreement with respect to the Mortgage
Loans without the prior written consent of the Master Servicer.
Representations
and Warranties of the Company
3. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
a. The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation;
b. The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Sale and Servicing Agreement. The execution by
the Company of this Agreement is in the ordinary course of the Company’s
business and will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of the Company’s charter or bylaws or any legal
restriction, or any material agreement or instrument to which the Company 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 Company or its property
is
subject. The execution, delivery and performance by the Company of
this Agreement have been duly authorized by all necessary corporate action
on
part of the Company. This Agreement has been duly executed and
delivered by the Company, and, upon the due authorization, execution and
delivery by the Assignor and the Assignee, will constitute the valid and legally
binding obligation of the Company, enforceable against the Company in accordance
with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or hereafter
in
effect relating to creditors’ rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding in
equity or at law;
c. No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
the Company in connection with the execution, delivery or performance by the
Company of this Agreement;
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d. There
is no action, suit, proceeding or investigation pending or threatened against
the Company, before any court, administrative agency or other tribunal, which
would draw into question the validity of this Agreement or the Sale and
Servicing Agreement, or which, either in any one instance or in the aggregate,
would result in any material adverse change in the ability of the Company to
perform its obligations under this Agreement or the Sale and Servicing
Agreement, and the Company is solvent.
4. The
Servicer hereby acknowledges that Xxxxx Fargo Bank, National Association has
been appointed as the Master Servicer of the Mortgage Loans pursuant to the
Pooling and Servicing Agreement and, therefore, has the right to enforce all
obligations of the Servicer under the Agreement. Such rights will include,
without limitation, the right to terminate the Servicer under the Agreement
upon
the occurrence of an event of default thereunder, the right to receive all
remittances required to be made by the Servicer under the Agreement, the right
to receive all monthly reports and other data required to be delivered by the
Servicer under the Agreement, the right to examine the books and records of
the
Servicer, indemnification rights and the right to exercise certain rights of
consent and approval relating to actions taken by MSMCI. The Servicer shall
make
all distributions under the Agreement to the Master Servicer by wire transfer
of
immediately available funds to:
Xxxxx
Fargo Bank, National Association
ABA
Number: 000-000-000
Account
Name: Corporate Trust Clearing
Account
number: 0000000000
For
further credit to: 53144700, MSM
2007-7AX
The
Servicer shall deliver all reports required to be delivered to the Purchaser
under the Agreement to the Master Servicer at the following
address:
Xxxxx
Fargo Bank, National Association
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Manager, MSM 2007-7AX
Office
Number: (000) 000-0000
Telecopier:
(000) 000-0000
5. Pursuant
to Section 14 of the Sale and Servicing Agreement, the Company hereby represents
and warrants, for the benefit of the Assignor, the Assignee and the Trust,
that
the representations and warranties set forth in Subsections 7.01 and 7.02 of
the
Sale and Servicing Agreement are true and correct as of the date hereof as
if
such representations and warranties were made on the date hereof unless
otherwise specifically stated in such representations and
warranties.
6. Remedies
for Breach of Representations and Warranties.
a. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trustee and the Master
Servicer acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3
and 4
hereof
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shall
be
as set forth in Subsection 7.03 of the Sale and Servicing Agreement as if they
were set forth herein (including without limitation the repurchase and indemnity
obligations set forth therein).
b. It
is expressly understood and agreed by the parties hereto that (i) this Agreement
is executed and delivered by LaSalle, not individually or personally but solely
on behalf of the Trust, as the assignee, in the exercise of the powers and
authority conferred and vested in it, as Trustee, pursuant to the Pooling and
Servicing Agreement, (ii) each of the representations, undertakings and
agreements herein made on the part of assignee is made and intended not as
personal representations, undertakings and agreements by LaSalle but
is made and intended for the purpose of binding only the Trust, (iii) nothing
herein contained shall be construed as creating any liability for LaSalle,
individually or personally, to perform any covenant (either express or implied)
contained herein and (iv) under no circumstances shall LaSalle be
personally liable for the payment of any indebtedness or expenses of the Trust,
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Agreement and
(v) all recourse for any payment liability or other obligation of the assignee
shall be had solely to the assets of the Trust.
7. Representations
and Warranties of Other Parties
a. The
Assignee represents and warrants that it is a sophisticated investor able to
evaluate the risks and merits of the transactions contemplated hereby, and
that
it has not relied in connection therewith upon any statements or representations
of the Assignor or the Company other than those contained in the Sale and
Servicing Agreement or this Agreement.
b. Each
of the parties hereto (other than the Company) represents and warrants that
it
is duly and legally authorized to enter into this Agreement.
c. Each
of the Assignor and Assignee represents and warrants that this Agreement has
been duly authorized, executed and delivered by it and (assuming due
authorization, execution and delivery thereof by each of the other parties
hereto) constitutes its legal, valid and binding obligation, enforceable against
it in accordance with its terms, except as such enforcement may be limited
by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
8. Amendments
to the Sale and Servicing Agreement
The
parties to this Agreement hereby agree to amend the Sale and Servicing Agreement
with respect to the Specified Mortgage Loans, as follows:
(a) The
definition of “Business Day” in Section 1 is hereby amended and restated in its
entirety as follows:
“Business
Day: Any day other than (i) a Saturday or a Sunday or (ii) a day on which
banking institutions in New York, New York or, if other than New York, the
city
in which the Corporate Trust Office of the Trustee is located, or the
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States
of
Maryland or Minnesota, are authorized or obligated by law or executive order
to
be closed.”
(b) The
definition of “Eligible Investments” in Section 1 is hereby amended and restated
in its entirety as follows:
“Eligible
Investments: At any time, any one or more of the following
obligations and securities:
(i) obligations
of the United States or any agency thereof, provided that such obligations
are
backed by the full faith and credit of the United States;
(ii) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt rating of each
Rating Agency, or such lower rating as shall not result in the downgrading
or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating
Agency;
(iii) commercial
or finance company paper which is then receiving the highest commercial or
finance company paper rating of each Rating Agency rating such paper, or such
lower rating as shall not result in the downgrading or withdrawal of the ratings
then assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and examination
by federal and/or state banking authorities, provided that the commercial paper
and/or long-term unsecured debt obligations of such depository institution
or
trust company (or in the case of the principal depository institution in a
holding company system, the commercial paper or long-term unsecured debt
obligations of such holding company, but only if Xxxxx’x is not the applicable
Rating Agency) are then rated one of the two highest long-term and the highest
short-term ratings of each Rating Agency for such securities, or such lower
ratings as shall not result in the downgrading or withdrawal of the ratings
then
assigned to the Certificates by the Rating Agencies, as evidenced by a signed
writing delivered by each Rating Agency;
(v) demand
or time deposits or certificates of deposit issued by any bank or trust company
or savings institution to the extent that such deposits are fully insured by
the
FDIC;
(vi) guaranteed
reinvestment agreements issued by any bank, insurance company or other
corporation acceptable to the Rating Agencies at the time of the issuance of
such agreements, as evidenced by a signed writing delivered by each Rating
Agency;
(vii) repurchase
obligations with respect to any security described in clauses (i) and (ii)
above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (iv) above;
(viii) securities
(other than stripped bonds, stripped coupons or instruments sold at a purchase
price in excess of 115% of the face amount thereof) bearing interest or sold
at
a discount issued by any corporation incorporated under the laws of the United
States or any state thereof which, at the time of such
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investment,
have one of the two highest ratings of each Rating Agency (except if the Rating
Agency is Moody’s, such rating shall be the highest commercial paper rating of
Moody’s for any such series), or such lower rating as shall not result in the
downgrading or withdrawal of the ratings then assigned to the Certificates
by
the Rating Agencies, as evidenced by a signed writing delivered by each Rating
Agency;
(ix) interests
in any money market fund which at the date of acquisition of the interests
in
such fund and throughout the time such interests are held in such fund has
the
highest applicable rating by each Rating Agency rating such fund or such lower
rating as shall not result in a change in the rating then assigned to the
Certificates by each Rating Agency, as evidenced by a signed writing delivered
by each Rating Agency, including funds for which the Trustee, the Master
Servicer, the Securities Administrator or any of its Affiliates is investment
manager or adviser;
(x) short-term
investment funds sponsored by any trust company or national banking association
incorporated under the laws of the United States or any state thereof which
on
the date of acquisition has been rated by each applicable Rating Agency in
their
respective highest applicable rating category or such lower rating as shall
not
result in a change in the rating then specified stated maturity and bearing
interest or sold at a discount acceptable to each Rating Agency as shall not
result in the downgrading or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies, as evidenced by a signed writing delivered
by each Rating Agency; and
(xi) such
other investments having a specified stated maturity and bearing interest or
sold at a discount acceptable to the Rating Agencies as shall not result in
the
downgrading or withdrawal of the ratings then assigned to the Certificates
by
the Rating Agencies, as evidenced by a signed writing delivered by each Rating
Agency;
provided,
that no such instrument shall be a Permitted Investment if (i) such instrument
evidences the right to receive interest only payments with respect to the
obligations underlying such instrument or (ii) such instrument would require
the
Depositor to register as an investment company under the Investment Company
Act
of 1940, as amended.”
(c) The
definition of “Remittance Date” in Section 1 is hereby amended and restated in
its entirety as follows:
“Remittance
Date: The 18th day of each month (or, if such 18th day is not a
Business Day, the prior Business Day).”
(d) The
second sentence of the definition of “Servicing Fee” in Section 1 is hereby
amended and restated in its entirety as follows:
“Such
fee
shall be payable monthly, computed on the basis of the same principal amount
and
period respecting which any related interest payment on a Mortgage Loan is
computed.”
(e) The
definition of “Servicing Fee Rate” in Section 1 is hereby amended and restated
in its entirety as follows:
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“Servicing
Fee Rate: The Servicing Fee rate for the Serviced Loans shall be equal to 0.375%
per annum , for any Serviced Loan with a three-year interest-only
term. For all other serviced loans, the Servicing Fee is
0.250%.”
(f) The
first sentence of the second paragraph of Subsection 11.01 of the Sale and
Servicing Agreement is hereby amended and restated in its entirety as
follows:
“Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary any
term of any Mortgage Loan or consent to the postponement of strict compliance
with any such term or in any manner grant indulgence to any Mortgagor;
provided, however, that (unless the Mortgagor is in default with
respect to the Mortgage Loan, or such default is, in the judgment of the
Servicer, imminent, and the Servicer has the consent of the Purchaser) the
Servicer shall not permit any modification with respect to any Mortgage Loan
which materially and adversely affects the Mortgage Loan, including without
limitation, any modification that would defer or forgive the payment of any
principal or interest or any penalty or premium on the prepayment of principal,
change the outstanding principal amount (except for actual payments of
principal), make any future advances, extend the final maturity date or change
the Mortgage Interest Rate, as the case may be, with respect to such Mortgage
Loan.”
(g) The
last paragraph of Subsection 11.01 of the Sale and Servicing Agreement is hereby
deleted in its entirety.
(h) With
respect to the Specified Mortgage Loans, the first sentence of Subsection 11.04
the Sale and Servicing Agreement is amended and restated as
follows:
The
Servicer shall segregate and hold all funds collected and received pursuant
to
each Specified Mortgage Loan separate and apart from any of its own funds and
general assets and shall establish and maintain one or more Custodial Accounts
(collectively, the “Custodial Account”), titled “HSBC Mortgage Corporation
(USA), in trust for Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-7AX.”
(i) Subsection
11.11 of the Sale and Servicing Agreement is hereby amended by adding the
following at the end thereof:
Upon
the
request of the Master Servicer, or the Purchaser or its designee, the Company
shall cause to be delivered to such Master Servicer, Purchaser or its designee
a
certificate of insurance for such Fidelity Bond and Errors and Omissions
Insurance Policy and a statement from the surety and the insurer that such
Fidelity Bond and Errors and Omissions Insurance Policy shall in no event be
terminated or materially modified without 30 days’ prior written notice to such
Master Servicer, Purchaser, or its designee.
(j) The
fifth paragraph of Subsection 11.12 of the Sale and Servicing Agreement is
hereby amended and restated in its entirety as follows:
“With
respect to any REO Property, the deed or certificate of sale shall be taken
in
the name of the Purchaser, or its designee. The Trustee’s name shall
be placed on the title to such REO Property solely as the Trustee hereunder
and
not in its individual capacity. The Servicer shall ensure that the
title to such REO Property references the Agreement and the Purchaser’s (or its
designee's) capacity thereunder. Pursuant to its efforts to sell such
REO Property, the
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Servicer
shall either itself or through an agent selected by the Servicer protect and
conserve such REO Property in the same manner and to such extent as is customary
in the locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Purchaser, or its designee,
rent the same, or any part thereof, as the Servicer deems to be in the best
interest of the Purchaser, or its designee, for the period prior to the sale
of
such REO Property. The Servicer shall prepare for and deliver to the
Purchaser, or its designee, a statement with respect to each REO Property that
has been rented showing the aggregate rental income received and all expenses
incurred in connection with the maintenance of such REO Property at such times
as is necessary to enable the Purchaser, or its designee, to comply with the
reporting requirements of the REMIC Provisions. The net monthly
rental income, if any, from such REO Property shall be deposited in the
Certificate Account no later than the close of business on each Determination
Date. The Servicer shall perform the tax reporting and withholding
required by Sections 1445 and 6050J of the Code with respect to foreclosures
and
abandonments, the tax reporting required by Section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and any tax
reporting required by Section 6050P of the Code with respect to the cancellation
of indebtedness by certain financial entities, by preparing such tax and
information returns as may be required, in the form required, and delivering
the
same to the Purchaser, or its designee, for filing.
In
the
event that the Purchaser, or its designee, acquires any Mortgaged Property
as
aforesaid or otherwise in connection with a default or imminent default on
a
Mortgage Loan, the Servicer shall dispose of such Mortgaged Property as soon
as
practicable in a manner that maximizes the Liquidation Proceeds thereof, but
in
no event later than three years after its acquisition by the Purchaser, or
its
designee, unless (x) the Servicer obtains an extension of REMIC status from
the
Internal Revenue Service or (y) the Purchaser, or its designee, shall have
been
supplied with an Opinion of Counsel to the effect that the holding by the
Purchaser, or its designee, of such Mortgaged Property subsequent to a
three-year period, if applicable, will not result in the imposition of taxes
on
“prohibited transactions” of any REMIC as defined in section 860F of the Code or
cause any REMIC to fail to qualify as a REMIC at any time, the Purchaser, or
its
designee, may continue to hold such Mortgaged Property (subject to any
conditions contained in such Opinion of Counsel) after the expiration of such
three-year period. Notwithstanding any other provision of this
Agreement, no Mortgaged Property acquired by the Purchaser, or its designee,
shall be rented (or allowed to continue to be rented) or otherwise used for
the
production of income by or on behalf of the Purchaser, or its designee, in
such
a manner or pursuant to any terms that would (i) cause such Mortgaged Property
to fail to qualify as “foreclosure property” within the meaning of section
860G(a)(8) of the Code or (ii) subject any REMIC to the imposition of any
federal, state or local income taxes on the income earned from such Mortgaged
Property under Section 860G(c) of the Code or otherwise, unless the Servicer
has
agreed to indemnify and hold harmless the Purchaser, or its designee, with
respect to the imposition of any such taxes.”
(k) The
first two paragraphs, (i), (ii) and (iii) of Subsection 11.15 of the Sale and
Servicing Agreement are hereby deleted in their entirety and replaced with
the
following:
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“Statements
to the Master Servicer. Not later than the
tenth
calendar day of each month (or, if such 10th day is not a Business Day, the
following Business Day) the Servicer shall furnish to the Master Servicer in
electronic format a statement providing loan level accounting data for the
period ending on the last Business Day of the preceding month in the format
mutually agreed to between the Servicer and the Master Servicer. The information
required shall consist of that which is substantially in the form of Exhibit
II
hereto or such other form as may be mutually agreed upon by the Servicer and
the
Master Servicer, taking into consideration the status of the subject loans
and
the availability of the requested information.
(l) Subsection
11.25 of the Sale and Servicing Agreement is hereby deleted.
(m) Subsection
12.01(b) of the Sale and Servicing Agreement is hereby amended and restated
in
its entirety as follows:
“failure
by the Servicer to duly observe or perform, in any material respect, any other
covenants, obligations or agreements of the Servicer as set forth in this
Agreement which failure continues unremedied for a period of sixty (60)
days;
(n) The
word “or” is deleted from the end of Subsection 12.01(d), the word “or” is added
at the end of Subsection 12.01(e) and the following paragraph is hereby
incorporated into the Sale and Servicing Agreement as new Subsection
12.01(f):
“(f) failure
by the Servicer to duly perform, within the required time period, its
obligations under Sections 2.04 and 2.05 of the Regulation AB Addendum which
failure continues unremedied after the date on which written notice of such
failure requiring the same to be remedied, shall have been given to the Servicer
by any party to this Agreement or by any master servicer responsible for master
servicing the Mortgage Loans pursuant to a securitization of such Mortgage
Loans;”
(o) The
first sentence of Subsection 13.01 of the Sale and Servicing Agreement is hereby
amended and restated in its entirety as follows:
“Termination. The
respective obligations and responsibilities of the Servicer, as servicer, shall
terminate upon (a) the distribution to the Purchaser of the final payment
or liquidation with respect to the last Mortgage Loan (or advances of same
by
the Servicer); or (b) the disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure with respect to the last Mortgage
Loan and the remittance of all funds due hereunder.
(p) Subsection
13.02 of the Sale and Servicing Agreement is hereby amended and restated in
its
entirety as follows:
“[Reserved].”
(q) The
fourth paragraph of Section 14 of the Sale and Servicing Agreement is hereby
deleted in its entirety.
(r) The
first sentence of Subsection 16.01 is hereby amended by adding the words “,
including any Master Servicer” after the words “employees and agents”
therein.
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(s) The
following paragraph is hereby incorporated into the Sale and Servicing Agreement
as new Section 36:
“Third
Party Beneficiary. For purposes of this Agreement, including but
not limited the Regulation AB Addendum, 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.”
(t) Exhibit
6 to the Sale and Servicing Agreement is hereby replaced in its entirety with
Exhibit II attached hereto.
(u) Exhibit
8 to the Sale and Servicing Agreement is hereby deleted in its
entirety.
(v) Subsections
11.19 and 11.20 to the Sale
and Servicing Agreement are hereby deleted in their entirety and replaced with
Sections 2.04 and 2.05 of the Regulation AB Addendum attached
hereto.
(w) The
terms and provisions contained in the Regulation AB Addendum attached to this
Agreement as Exhibit III are hereby incorporated into the Sale and Servicing
Agreement.
Miscellaneous
9. Any
notices or other communications permitted or required under the Agreement to
be
made to the Assignor, Assignee, the Company, and the Trustee shall be made
in
accordance with the terms of the Sale and Servicing Agreement and shall be
sent
as follows:
In
the
case of the Assignee:
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-7AX
In
the
case of the Trustee:
LaSalle
Bank National Association
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Global Securities and Trust Services MSM 2007-7AX
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In
the
case of the Company:
HSBC
Mortgage Corporation (USA)
0000
Xxxxxx Xxx
Xxxxx,
XX
00000
Attention: Xxxx
X. Xxxxxx
10. This
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of law principles (except for Section 5-1401
of the General Obligations Law), and the obligations, rights and remedies of
the
parties hereunder shall be determined in accordance with such laws.
11. No
term or provision of this Agreement may be waived or modified unless such waiver
or modification is in writing and signed by the party against whom such waiver
or modification is sought to be enforced.
12. This
Agreement shall inure to the benefit of (i) the successors and assigns of the
parties hereto and (ii) the Trust (including the Trustee acting on the Trust’s
behalf). Any entity into which Assignor, Assignee or Company may be merged
or
consolidated shall, without the requirement for any further writing, be deemed
Assignor, Assignee or Company, respectively, hereunder.
13. Each
of this Agreement and the Sale and Servicing Agreement shall survive the
conveyance of the Mortgage Loans and the assignment of the Sale and Servicing
Agreement (solely with respect to the Mortgage Loans) by Assignor to Assignee
and by Assignee to the Trust and nothing contained herein shall supersede or
amend the terms of the Sale and Servicing Agreement.
14. This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
15. In
the event that any provision of this Agreement conflicts with any provision
of
the Sale and Servicing Agreement with respect to the Mortgage Loans, the terms
of this Agreement shall control.
16. Capitalized
terms used in this Agreement (including the exhibits hereto) but not
defined in this Agreement shall have the meanings given to such terms in the
Sale and Servicing Agreement.
17. The
Assignee will hold information in confidence as set forth in Section 32 of
the
Sale and Servicing Agreement, provided such information may be disclosed to
regulatory or administrative authorities or attorneys, auditors or agents in
the
performance of the Pooling and Servicing Agreement.
11
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
XXXXXX
XXXXXXX MORTGAGE
CAPITAL
INC.
By:
/s/ Xxxxxxx Xxx
Name: Xxxxxxx
Xxx
Title: Vice
President
XXXXXX
XXXXXXX CAPITAL I INC.
By:
/s/ Xxxxxxx Xxx
Name: Xxxxxxx
Xxx
Title: Vice
President
HSBC
MORTGAGE CORPORATION
(USA)
By:
/s/ Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Vice
President
|
Acknowledged
and Agreed:
XXXXX
FARGO BANK, NATIONAL
ASSOCIATION,
as Master Servicer
By:
/s/ Xxxxx X. Xxxxxx
Name: Xxxxx
X. Xxxxxx
Title: Vice
President
LASALLE
BANK NATIONAL ASSOCIATION,
as
Trustee of Xxxxxx Xxxxxxx
Mortgage
Loan Trust 2007-7AX
By:
/s/ Xxxx Xxxxx
Name: Xxxx
Xxxxx
Title: Vice
President
EXHIBIT
I
Mortgage
Loan Schedule
[see
Schedule A to Pooling and Servicing Agreement]
Exhibit
IIA: Standard
File
Layout – Delinquency Reporting
*The
column/header names in bold are the minimum
fields Xxxxx Fargo must receive from every Servicer
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be
different than the LOAN_NBR
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
|
CLIENT_NBR
|
Servicer
Client Number
|
||
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify a
group of
loans in their system.
|
|
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
||
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
||
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|
PROP_STATE
|
The
state where the property located.
|
|
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer at the
end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
||
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions to
begin
foreclosure proceedings.
|
MM/DD/YYYY
|
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from the
borrower.
|
MM/DD/YYYY
|
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
MM/DD/YYYY
|
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
|
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
MM/DD/YYYY
|
|
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
|
CURR_PROP_VAL
|
The
current "as is" value of the property based on brokers price opinion
or
appraisal.
|
2
|
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
If
applicable:
|
|
|
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
||
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a
loan. Code indicates the reason why the loan is in
default for this cycle.
|
||
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
MM/DD/YYYY
|
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
MM/DD/YYYY
|
|
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
MM/DD/YYYY
|
|
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
FHA_PART_B_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part B Claim Payment
|
MM/DD/YYYY
|
|
FHA_PART_B_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part B Claim
|
2
|
No
commas(,) or dollar signs ($)
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
MOTION_FOR_RELIEF_DATE
|
The
date the Motion for Relief was filed
|
10
|
MM/DD/YYYY
|
FRCLSR_BID_AMT
|
The
foreclosure sale bid amount
|
11
|
No
commas(,) or dollar signs ($)
|
FRCLSR_SALE_TYPE
|
The
foreclosure sales results: REO, Third Party, Conveyance to
HUD/VA
|
|
|
REO_PROCEEDS
|
The
net proceeds from the sale of the REO property.
|
|
No
commas(,) or dollar signs ($)
|
BPO_DATE
|
The
date the BPO was done.
|
|
|
CURRENT_FICO
|
The
current FICO score
|
|
|
2
HAZARD_CLAIM_FILED_DATE
|
The
date the Hazard Claim was filed with the Hazard Insurance
Company.
|
10
|
MM/DD/YYYY
|
HAZARD_CLAIM_AMT
|
The
amount of the Hazard Insurance Claim filed.
|
11
|
No
commas(,) or dollar signs ($)
|
HAZARD_CLAIM_PAID_DATE
|
The
date the Hazard Insurance Company disbursed the claim
payment.
|
10
|
MM/DD/YYYY
|
HAZARD_CLAIM_PAID_AMT
|
The
amount the Hazard Insurance Company paid on the claim.
|
11
|
No
commas(,) or dollar signs ($)
|
ACTION_CODE
|
Indicates
loan status
|
Number
|
|
NOD_DATE
|
|
|
MM/DD/YYYY
|
NOI_DATE
|
|
|
MM/DD/YYYY
|
ACTUAL_PAYMENT_PLAN_START_DATE
|
|
|
MM/DD/YYYY
|
ACTUAL_PAYMENT_
PLAN_END_DATE
|
|
|
|
ACTUAL_REO_START_DATE
|
|
|
MM/DD/YYYY
|
REO_SALES_PRICE
|
|
|
Number
|
REALIZED_LOSS/GAIN
|
As
defined in the Servicing Agreement
|
|
Number
|
Exhibit
2: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
|
·
|
Tenant
|
·
|
Unknown
|
·
|
Vacant
|
The
Property Condition field should show the last reported
condition of the property as follows:
·
|
Damaged
|
·
|
Excellent
|
·
|
Fair
|
3
·
|
Gone
|
·
|
Good
|
·
|
Poor
|
·
|
Special
Hazard
|
·
|
Unknown
|
4
Exhibit
2: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
|
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
|
5
Exhibit
2:Standard
File Codes –
Delinquency Reporting, Continued
The
FNMA Delinquent Status Code field should show the Status
of Default as follows:
Status
Code
|
Status
Description
|
09
|
Forbearance
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
24
|
Government
Seizure
|
26
|
Refinance
|
27
|
Assumption
|
28
|
Modification
|
29
|
Charge-Off
|
30
|
Third
Party Sale
|
31
|
Probate
|
32
|
Military
Indulgence
|
43
|
Foreclosure
Started
|
44
|
Deed-in-Lieu
Started
|
49
|
Assignment
Completed
|
61
|
Second
Lien Considerations
|
62
|
Veteran’s
Affairs-No Bid
|
63
|
Veteran’s
Affairs-Refund
|
64
|
Veteran’s
Affairs-Buydown
|
65
|
Chapter
7 Bankruptcy
|
66
|
Chapter
11 Bankruptcy
|
67
|
Chapter
13 Bankruptcy
|
6
Exhibit
IIC:Standard
File Layout – Master
Servicing
Standard
Loan Level File Layout –
Master
Servicing
|
|
|
|
|
|
|
|
||
|
|
|
||
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
Each
file requires the following fields:
|
|
|
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 20 digits
|
20
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
|
Text
up to 10 digits
|
10
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be
different than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported by
the
Servicer.
|
4
|
Max
length of 6
|
6
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the
Servicer.
|
4
|
Max
length of 6
|
6
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
|
MM/DD/YYYY
|
10
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
2
Exhibit
1:Continued
|
Standard
Loan Level File Layout
|
|
|
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|
Action
Code Key: 15=Bankruptcy, 00xXxxxxxxxxxx, , 00xXXX, 63=Substitution,
65=Repurchase,70=REO
|
2
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
Plus
the following applicable fields:
|
|
|
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of the
cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
3
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as reported
by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
4
Exhibit
1: Continued
|
Standard
Loan Level File Layout
|
|
|
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
BREACH_FLAG
|
Flag
to indicate if the repurchase of a loan is due to a breach of
Representations and Warranties
|
Y=Breach
N=NO
Breach
Let
blank if N/A
|
1
|
5
6
7
Exhibit
IID
: 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.
The
numbers on the 332 form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
|
1.
|
The
Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is
required.
|
|
2.
|
The
Total Interest Due less the aggregate amount of servicing fee that
would
have been earned if all delinquent payments had been made as agreed.
For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is
required.
|
|
3.
|
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage
Loan as calculated on a monthly basis. For documentation, an Amortization
Schedule from date of default through liquidation breaking out the
net
interest and servicing fees advanced is
required.
|
4-12.
|
Complete
as applicable. Required
documentation:
|
* For
taxes and insurance advances – see page 2 of 332 form - breakdown required
showing period of coverage, base tax, interest, penalty. Advances
prior to default require evidence of servicer efforts to recover
advances.
* For
escrow advances - complete payment history
(to
calculate advances from last positive escrow balance forward)
* Other
expenses - copies of corporate advance history showing all
payments
* REO
repairs> $1500 require explanation
* REO
repairs>$3000 require evidence of at least 2 bids.
* Short
Sale or Charge Off require P&L supporting the decision and WFB’s approved Officer
Certificate
* Unusual
or extraordinary items may require further documentation.
|
13.
|
The
total of lines 1 through 12.
|
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
( ).
|
8
Exhibit
IIE: Calculation
of
Realized Loss/Gain Form 332
Prepared
by: __________________ Date: _______________
Phone: ______________________ Email
Address:_____________________
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
XXXXX
FARGO BANK, N.A. Loan No._____________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
Liquidation
Type: REO
Sale
3rd Party
Sale Short
Sale Charge
Off
Was
this loan granted a Bankruptcy deficiency or cramdown Yes No
If
“Yes”,
provide deficiency or cramdown amount
_______________________________
Liquidation
and Acquisition Expenses:
|
|||
(1)
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
$
______________
|
(1)
|
(2)
|
Interest
accrued at Net Rate
|
________________
|
(2)
|
(3)
|
Accrued
Servicing Fees
|
________________
|
(3)
|
(4)
|
Attorney's
Fees
|
________________
|
(4)
|
(5)
|
Taxes
(see page 2)
|
________________
|
(5)
|
(6)
|
Property
Maintenance
|
________________
|
(6)
|
(7)
|
MI/Hazard
Insurance Premiums (see page 2)
|
________________
|
(7)
|
(8)
|
Utility
Expenses
|
________________
|
(8)
|
(9)
|
Appraisal/BPO
|
________________
|
(9)
|
(10)
|
Property
Inspections
|
________________
|
(10)
|
(11)
|
FC
Costs/Other Legal Expenses
|
________________
|
(11)
|
(12)
|
Other
(itemize)
|
________________
|
(12)
|
Cash
for Keys__________________________
|
________________
|
(12)
|
|
HOA/Condo
Fees_______________________
|
________________
|
(12)
|
|
______________________________________
|
________________
|
(12)
|
|
Total
Expenses
|
$
_______________
|
(13)
|
|
Credits:
|
|||
(14)
|
Escrow
Balance
|
$
_______________
|
(14)
|
(15)
|
HIP
Refund
|
________________
|
(15)
|
(16)
|
Rental
Receipts
|
________________
|
(16)
|
(17)
|
Hazard
Loss Proceeds
|
________________
|
(17)
|
(18)
|
Primary
Mortgage Insurance / Gov’t Insurance
|
________________
|
(18a)
|
HUD
Part A
|
|||
________________
|
(18b)
|
||
HUD
Part B
|
|||
(19)
|
Pool
Insurance Proceeds
|
________________
|
(19)
|
(20)
|
Proceeds
from Sale of Acquired Property
|
________________
|
(20)
|
(21)
|
Other
(itemize)
|
________________
|
(21)
|
_________________________________________
|
________________
|
(21)
|
|
Total
Credits
|
$________________
|
(22)
|
|
Total
Realized Loss (or Amount of Gain)
|
$________________
|
(23)
|
9
Escrow
Disbursement Detail
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of
Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
10
EXHIBIT
III
REGULATION
AB COMPLIANCE ADDENDUM
TO
SELLER’S PURCHASE, WARRANTIES AND SERVICING AGREEMENT
WITNESSETH
WHEREAS,
the Company and the Purchaser have agreed to adopt an addendum to the Mortgage
Loan Sale and Servicing Agreement dated as of August 1, 2005, to reflect the
intention of the parties to comply with Regulation AB.
NOW,
THEREFORE, in consideration of the mutual promises and mutual obligations set
forth herein, the Company and the Purchaser hereby agree as
follows:
ARTICLE
I
DEFINED
TERMS
Capitalized
terms used but not defined herein shall have the meanings assigned to such
terms
in the Agreement. The following terms shall have the meanings set
forth below, unless the context clearly indicates otherwise:
Commission: The
United States Securities and Exchange Commission.
Company
Information: As defined in Section 2.07(a).
Depositor: With
respect to any Securitization Transaction, the Person identified in writing
to
the Company by the Purchaser as depositor for such Securitization
Transaction.
Exchange
Act: The Securities Exchange Act of 1934, as
amended.
Indemnified
Party: each Party described in the first sentence of Section
2.07(a) hereof.
Master
Servicer: With respect to a Securitization Transaction, the
“master servicer,” if any, defined in the related transaction
documents.
Qualified
Correspondent: Any Person from which the Company purchased
Mortgage Loans, provided that the following conditions are
satisfied: (i) such Mortgage Loans were originated pursuant to an
agreement between the Company and such Person that contemplated that such Person
would underwrite mortgage loans from time to time, for sale to the Company,
in
accordance with underwriting guidelines designated by the Company
(“Designated Guidelines”) or guidelines that do not vary materially from
such Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten
as described in clause (i) above and were acquired by the Company within 270
days after origination; (iii) either (x) the Designated Guidelines were, at
the
time such Mortgage Loans were originated, used by the Company in origination
of
mortgage loans of the same type as the Mortgage Loans for the Company’s own
account or (y) the Designated Guidelines were, at the time such Mortgage Loans
were underwritten, designated by the Company on a consistent basis for use
by
lenders in originating mortgage loans to be purchased by the Company; and (iv)
the Company employed, at the time such Mortgage Loans were acquired by the
Company, pre-purchase or post-purchase quality assurance procedures (which
may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed to
ensure that Persons from which it purchased mortgage loans properly applied
the
underwriting criteria designated by the Company.
Reconstitution: Any
Securitization Transaction or Whole Loan Transfer.
11
Reconstitution
Agreement: An agreement or agreements entered into by the Company
and the Purchaser and/or certain third parties in connection with a
Reconstitution with respect to any or all of the Mortgage Loans.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have been provided
by the Commission in the adopting release (Asset-Backed Securities, Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
Securities
Act: The Securities Act of 1933, as amended.
Securitization
Transaction: Any transaction involving either (1) a sale or other
transfer of some or all of the Mortgage Loans directly or indirectly by the
Purchaser to an issuing entity (as defined in Regulation AB) in connection
with
an issuance of publicly offered, rated or unrated mortgage-backed securities
or
(2) an issuance of publicly offered, rated or unrated securities, the payments
on which are determined primarily by reference to one or more portfolios of
residential mortgage loans consisting, in whole or in part, of some or all
of
the Mortgage Loans.
Servicer: As
defined in Section 2.03(c).
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d) of
Regulation AB for which the Company is responsible in its capacity as Servicer
as identified on Exhibit B-1 hereto, provided that such Exhibit B-1 may be
amended from time to time to reflect changes in Regulation AB.
Sponsor: With
respect to any Securitization Transaction, the Person identified in writing
to
the Company by the Purchaser as sponsor for such Securitization
Transaction.
Static
Pool Information: Static pool information as described in Item
1l05(a)(l)-(3) and 1105(c) of Regulation AB.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans pursuant to a
Reconstitution Agreement but performs one or more discrete functions identified
in Item 1122(d) of Regulation AB with respect to Mortgage Loans (serviced by
the
Company under a Reconstitution Agreement) under the direction or authority
of
the Company or a Subservicer.
Subservicer: Any
Person that services Mortgage Loans on behalf of the Company (as
servicer under a Reconstitution Agreement) or any Subservicer and is responsible
for the performance (whether directly or through Subservicers or Subcontractors)
of a substantial portion of the material servicing functions required to be
performed by the Company under this Agreement or any Reconstitution Agreement
that are identified in Item 1122(d) of Regulation AB.
Third-Party
Originator: Each Person, other than a Qualified Correspondent,
that originated Mortgage Loans acquired by the Company.
Whole
Loan Transfer: Any sale or transfer by the Purchaser of some or
all of the Mortgage Loans, other than a Securitization Transaction.
12
ARTICLE
II
COMPLIANCE
WITH REGULATION AB
Section
2.01. Intent of the
Parties; Reasonableness.
The
Purchaser and the Company acknowledge and agree that the purpose of Article
II
of this Reg AB Addendum is to facilitate compliance by the Purchaser and any
Depositor with the provisions of Regulation AB and related rules and regulations
of the Commission, regardless whether the Mortgage Loans were purchased by
the
Purchaser from the Company prior to the date hereof. Neither the
Purchaser nor any Depositor shall exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission
thereunder. The Company acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with reasonable requests made by the Purchaser or any Depositor
in good faith for delivery of information under these provisions on the basis
of
evolving interpretations of Regulation AB. In connection with any
Securitization Transaction, the Company shall cooperate with the Purchaser
to
deliver to the Purchaser (including any of its assignees or designees) and
any
Depositor, any and all statements, reports, certifications, records and any
other information necessary in the good faith determination of the Purchaser
or
any Depositor to permit the Purchaser or such Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Company, any Subservicer, any Third-Party Originator and the Mortgage Loans,
or
the servicing of the Mortgage Loans, reasonably believed by the Purchaser or
any
Depositor to be necessary in order to effect such compliance.
The
Purchaser and the Company also acknowledge and agree Section 2.02(a)(i)-(v),
Section 2.03(c), (e) and (f), Section 2.04, Section 2.05 and Section 2.06 of
this Reg AB Addendum shall only be applicable with respect to any Mortgage
Loan
if the Company (or Subservicer, if any) services such Mortgage Loan following
the closing date of a related Securitization Transaction. The
Purchaser and the Company also acknowledge and agree that this Reg AB Addendum
is intended to supplement the terms of the Agreement and, to the extent
inconsistent, the rights and obligations under the Agreement shall continue
to
apply with respect to any Reconstitution (as defined in the
Agreement) that is not covered by the definition of “Securitization
Transaction” in this Reg AB Addendum; provided, however, that the requirement to
provide an accountants’ report pursuant to Section 6.05 of the Agreement shall
be deemed satisfied with respect to any Reconstitution that occurs on or
following the date hereof by providing an accountants’ attestation that
satisfies the requirements of Section 2.05(a)(ii) of this Reg AB
Addendum.
For
purposes of this Reg AB Addendum, the term “Purchaser” shall refer to Xxxxxx
Xxxxxxx Mortgage Capital Inc. and its successors in interest and
assigns. In addition, any notice or request that must be “in
writing” or “written” may be made by electronic mail.
For
the
purposes of clarification, the covenants of this Regulation AB Compliance
Addendum are applicable only with respect to the Specified Mortgage
Loans.
Section
2.02. Additional
Representations, Warranties and Covenants of the Company.
(a) The
Company shall be deemed to represent to the Purchaser and to any Depositor,
as
of the date on which information is first provided to the Purchaser or any
Depositor under Section 2.03 that, except as disclosed in writing to the
Purchaser or such Depositor prior to such date: (i) the Company is not
aware and has not received notice that any default, early amortization or other
performance triggering event with respect to the Company has occurred as to
any
other securitization due to any act or failure to act of the Company; (ii)
the
Company has not been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; (iii) no material noncompliance with
the
applicable Servicing Criteria with respect to other securitizations of
residential mortgage loans involving the Company as servicer has been disclosed
or reported by the Company; (iv) no material changes to the Company’s policies
or procedures with respect to the servicing function it will perform under
this
Agreement and any Reconstitution Agreement for mortgage loans of a type similar
to the Mortgage Loans have occurred during the three-year period immediately
13
preceding
the related Securitization Transaction; (v) there are no aspects of the
Company’s financial condition that are reasonably expected to have a material
adverse effect on the performance by the Company of its servicing obligations
under this Agreement or any Reconstitution Agreement; (vi) there are no material
legal or governmental proceedings of a type identified in Item 1117 of
Regulation AB pending (or known to be contemplated) against the Company, any
Subservicer or any Third-Party Originator; and (vii) there are no affiliations,
relationships or transactions relating to the Company, any Subservicer or any
Third-Party Originator with respect to any Securitization Transaction and any
party thereto identified in writing to the Company by the related Depositor
of a
type described in Item 1119 of Regulation AB.
The
Company hereby represents and warrants that it is unable without unreasonable
effort or expense to provide (i) Static Pool Information with respect to
mortgage loans that the Company has sold on a servicing-released basis, other
than such information as relates to “original characteristics” as described in
Item 1105(a)(3)(iii) of Regulation AB and (ii) Static Pool Information regarding
cumulative losses with respect to any mortgage loans originated prior to January
1, 2006.
(b) If
so requested in writing by the Purchaser or any Depositor on any date following
the date on which information is first provided to the Purchaser or
any Depositor under Section 2.03, the Company shall use its reasonable best
efforts to within five (5) Business Days, but in no event later than ten (10)
Business Days, following such request confirm in writing the accuracy of the
representations and warranties set forth in paragraph (a) of this Section or,
if
any such representation and warranty is not accurate as of the date of such
request, provide reasonably adequate disclosure of the pertinent facts, in
writing, to the requesting party.
(c) The
Company hereby agrees that, for so long as the Trust is reporting under the
Exchange Act, its obligations under Section 2.04 and Section of this Agreement
shall survive the termination and removal of the Company as servicer of the
Specified Mortgage Loans in the Trust and continue to apply for each calendar
year during which the Company services the Specified Mortgage
Loans.
Section
2.03. Information to Be
Provided by the Company.
In
connection with any Securitization Transaction, the Company shall use its
reasonable best efforts to (i) within five (5) Business Days, but in no event
later than ten (10) Business Days, following written request by the Purchaser
or
any Depositor, provide to the Purchaser and such Depositor (or, as applicable,
cause each Third-Party Originator and each Subservicer to provide), in writing
and in form and substance reasonably satisfactory to the Purchaser and such
Depositor, the information and materials specified in paragraphs (a), (b),
(c)
and (f) of this Section, and (ii) as promptly as practicable following notice
to
or discovery by the Company, provide to the Purchaser and any Depositor (in
writing and in form and substance reasonably satisfactory to the Purchaser
and
such Depositor) the information specified in paragraph (d) of this
Section.
(a) If
so requested in writing by the Purchaser or any Depositor, the Company shall
provide such information regarding (i) the Company, as originator of the
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (ii) each Third-Party Originator, and (iii) as applicable,
each Subservicer, as is reasonably requested for the purpose of compliance
with
Items 1103(a)(l), 1105, 1110, 1117 and 1119 of Regulation AB. Such
information shall include, at a minimum (so long as required by Regulation
AB):
(A) the
originator’s form of organization;
(B) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
or
any Depositor, to an analysis of the performance of the Mortgage Loans,
including the originators’ credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other information as
the
Purchaser or any Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
14
(C) a
description of any legal or governmental proceedings of a type described in
Item
1117 of Regulation AB pending (or known to be contemplated) against the Company,
each Third-Party Originator and each Subservicer that would be material to
securityholders; and
(D) a
description of any affiliation or relationship of a type described in Item
1119
of Regulation AB between the Company, each Third-Party Originator, each
Subservicer and any of the following parties to a Securitization Transaction,
as
such parties are identified to the Company by the Purchaser or any Depositor
in
writing in advance of such Securitization Transaction:
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other material transaction party.
(b) If
so requested in writing by the Purchaser or any Depositor, the Company shall
provide (or, as applicable, cause each Third-Party Originator to provide) Static
Pool Information with respect to mortgage loans of a similar type as the
Mortgage Loans (as reasonably identified by the Purchaser as provided below)
originated by (i) the Company, if the Company is an originator of Mortgage
Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), and/or (ii) each Third-Party Originator, but in each case only
to the extent that (x) such mortgage loans were originated after July 2004
and
(y) (A) the Company has not sold such mortgage loans on a servicing-released
basis or (B) such information relates to “original characteristics” as described
in Item 1105(a)(3)(iii) of Regulation AB. Notwithstanding the
preceding sentence, the Company shall not be required to provide Static Pool
Information regarding cumulative losses with respect to any mortgage loans
originated prior to January 1, 2006. Such Static Pool Information
shall be prepared by the Company (or Third-Party Originator) on the basis of
its
reasonable, good faith interpretation of the requirements of Item 1105(a)(2)-(3)
of Regulation AB. To the extent that there is reasonably available to
the Company (or Third-Party Originator) Static Pool Information with respect
to
more than one mortgage loan type, the Purchaser or any Depositor shall be
entitled to specify whether some or all of such information shall be provided
pursuant to this paragraph. The content of such Static Pool
Information may be in the form customarily provided by the Company, and need
not
be customized for the Purchaser or any Depositor, except for such changes as
the
Purchaser shall reasonably request to the extent necessary to comply with
Regulation AB. Such Static Pool Information for each vintage
origination year shall be presented in increments no less frequently than
quarterly over the life of the mortgage loans included in the vintage
origination year or prior securitized pool. The most recent periodic
increment must be as of a date no later than 135 days prior to the date of
the
prospectus or other offering document in which the Static Pool Information
is to
be included or incorporated by reference. The Static Pool Information
shall be provided in an electronic format that provides a permanent record
of
the information provided, such as a portable document format (pdf) file, or
other such electronic format reasonably required by the Purchaser or the
Depositor, as applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Company shall provide corrected Static Pool Information to
the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the Company, subject
to such time limits as mutually agreed to by the Company and the Purchaser
or
the Depositor, as applicable.
If
so
requested in writing by the Purchaser or any Depositor, the Company shall
provide (or, as applicable, cause each Third-Party Originator to provide),
at
the expense of the requesting party (to the extent of any additional incremental
expense associated with delivery pursuant to this Reg AB Addendum), such
statements and agreed-upon procedures letters of certified public accountants
reasonably acceptable to the Purchaser or Depositor, as applicable, pertaining
to Static Pool Information relating to prior securitized pools for
securitizations closed on or after January 1, 2006 or, in the case of Static
Pool Information with respect to the Company’s or Third Party Originator’s
15
originations
or purchases, to calendar months commencing January 1, 2006, as the Purchaser
or
such Depositor shall reasonably request. Such statements and letters
shall be addressed to and be for the benefit of such parties as the Purchaser
or
such Depositor shall designate, which may include, by way of example, any
Sponsor, any Depositor and any broker dealer acting as underwriter, placement
agent or initial purchaser with respect to a Securitization
Transaction. Any such statement or letter may take the form of a
standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(c) If
so requested in writing by the Purchaser or any Depositor with respect to any
Securitization Transaction for which 20% or more of the pool assets (measured
by
cut-off date principal balance) are serviced by the Company and any Subservicer,
the Company shall provide such information regarding the Company, as servicer
of
the Mortgage Loans, and each Subservicer (each of the Company and each
Subservicer, for purposes of this paragraph, a “Servicer”), as is
reasonably requested for the purpose of compliance with Item 1108 of Regulation
AB. Such information shall include, at a minimum (so long as required
by Regulation AB):
(A) the
Servicer’s form of organization;
(B) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under the Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of residential mortgage loans of a type
similar to the Mortgage Loans and information on factors related to the Servicer
that may be material, in the good faith judgment of the Purchaser or any
Depositor, to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
(1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
(2) the
extent of outsourcing the Servicer utilizes;
(3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(4) whether
the Servicer has been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such
other information as the Purchaser or any Depositor may reasonably request
for
the purpose of compliance with Item 1108(b)(2) of Regulation AB;
(C) a
description of any material changes during the three-year period immediately
preceding the related Securitization Transaction to the Servicer’s policies or
procedures with respect to the servicing function it will perform under the
Agreement and any Reconstitution Agreements for mortgage loans of a type similar
to the Mortgage Loans;
(D) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Company
of its servicing obligations under the Agreement or any Reconstitution
Agreement;
16
(E) information
regarding advances made by the Servicer on the Mortgage Loans and the Servicer’s
overall servicing portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization Transaction, which
may
be limited to a statement by an authorized officer of the Servicer to the effect
that the Servicer has made all advances required to be made on residential
mortgage loans serviced by it during such period, or, if such statement would
not be accurate, information regarding the percentage and type of advances
not
made as required, and the reasons for such failure to advance;
(F) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(G) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(H) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience.
(d) For
the purpose of satisfying the reporting obligation under the Exchange Act with
respect to any class of asset-backed securities, the Company shall (or shall
cause each Subservicer and Third-Party Originator to) (i) promptly provide
written notice substantially in the form of Exhibit C-1 to the Purchaser and
any
Depositor of (A) any material litigation or governmental proceedings of a type
described in Item 1117 of Regulation AB pending against the Company, any
Subservicer or any Third-Party Originator, (B) any affiliations or relationships
of a type described in Item 1119 of Regulation AB that develop following the
closing date of a Securitization Transaction between the Company, any
Subservicer or any Third-Party Originator and any of the parties specified
in
clause (D) of paragraph (a) of this Section (and any other parties identified
in
writing by the requesting party) with respect to such Securitization
Transaction, (C) any Event of Default under the terms of this Agreement or
any
Reconstitution Agreement, (D) any merger, consolidation or sale of substantially
all of the assets of the Company and (E) the Company’s entry into an agreement
with a Subcontractor to perform or assist the Company with the performance
of
any of the Company’s obligations under this Agreement or any Reconstitution
Agreement and (ii) provide to the Purchaser and any Depositor a description
of
such proceedings, affiliations or relationships.
(e) As
a condition to the succession to the Company or any Subservicer as servicer
or
subservicer under the Agreement or any Reconstitution Agreement by any Person
(i) into which the Company or such Subservicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Company
or
any Subservicer, the Company shall provide to the Purchaser and any Depositor,
at least 15 calendar days prior to the effective date of such succession or
appointment, (x) written notice substantially in the form of Exhibit C-1 to
the
Purchaser, any Master Servicer and any Depositor of such succession or
appointment and (y) in writing and in form and substance reasonably satisfactory
to the Purchaser and such Depositor, all information reasonably requested in
writing by the Purchaser or any Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
(f) In
addition to such information as the Company, as servicer, is obligated to
provide pursuant to other provisions of this Agreement, not later than ten
(10)
days prior to the deadline for the filing of any distribution report on Form
10-D in respect of any Securitization Transaction that includes any of the
Mortgage Loans serviced by the Company or any Subservicer, the Company or such
Subservicer, as applicable, shall, to the extent the Company or such Subservicer
has knowledge, provide to the party responsible for filing such report
(including, if applicable, the Master Servicer) notice substantially in the
form
of Exhibit C-1 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 any terms, fees, penalties
or
payments during the distribution period or that have cumulatively become
material over time with respect to the Specified Mortgage Loans (Item
1121(a)(11) of Regulation AB);
17
(ii) material
breaches of pool asset representations or warranties or transaction covenants
with respect to the Specified Mortgage Loans (Item 1121(a)(12) of Regulation
AB); and
(iii) information
regarding changes to any Mortgage Loans serviced by the Company or its
Subservicers (such as, additions, substitutions or repurchases), and any
material changes in origination, underwriting or other criteria for acquisition
or selection of pool assets as it relates to a substitution (Item 1121(a)(14)
of
Regulation AB).
(g) The
Company shall provide to the Purchaser, any Master Servicer and any Depositor,
evidence of the authorization of the person signing any certification and,
no
more than once a year, copies or other evidence of Fidelity Bond Insurance
and
Errors and Omission Insurance Policy, financial information and reports, and
such other information related to the Company or any Subservicer or the Company
or such Subservicer's performance hereunder as may be reasonably requested
by
the Purchaser, any Master Servicer or any Depositor, which items may be accepted
in the forms acceptable to the Company's and Subservicer's regulators or the
agencies.
Section
2.04. Servicer
Compliance Statement.
On
or
before March 15 of each calendar year, commencing in 2008, the Company shall
deliver to the Purchaser, any Master Servicer and any Depositor a statement
of
compliance addressed to the Purchaser, such Master Servicer and such Depositor
and signed by an authorized officer of the Company, to the effect that (i)
a
review of the Company’s activities during the immediately preceding calendar
year (or applicable portion thereof) and of its performance under the Agreement
and any applicable Reconstitution Agreement during such period has been made
under such officer’s supervision, and (ii) to the best of such officers’
knowledge, based on such review, the Company has fulfilled all of its
obligations under the Agreement and any applicable Reconstitution Agreement
in
all material respects throughout such calendar year (or applicable portion
thereof) or, if there has been a failure to fulfill any such obligation in
any
material respect, specifically identifying each such failure known to such
officer and the nature and the status thereof.
Section
2.05. Report on
Assessment of Compliance and Attestation.
(a) On
or before March 15 of each calendar year, commencing in 2008, the Company
shall:
(i) deliver
to the Purchaser, any Master Servicer and any Depositor a report (in form and
substance reasonably satisfactory to the Purchaser, such Master Servicer and
such Depositor; provided, however, that such report may be in the form
customarily provided by the Company, and need not be customized for the
Purchaser or such Depositor) regarding the Company’s assessment of compliance
with the Servicing Criteria during the immediately preceding calendar year,
as
required under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB. Such report shall be addressed to the Purchaser and
such Depositor and signed by an authorized officer of the Company, and shall
address each of the Servicing Criteria specified on Exhibit B-1 hereto delivered
to the Purchaser concurrently with the execution of this Reg AB
Addendum;
(ii) deliver
to the Purchaser, any Master Servicer and any Depositor a report of a registered
public accounting firm reasonably acceptable to the Purchaser, such Master
Servicer and such Depositor that attests to, and reports on, the assessment
of
compliance made by the Company and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act;
(iii) cause
each Subservicer, and each Subcontractor determined by the Company pursuant
to
Section 2.06(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, (each, a “Participating Entity”) to
deliver to the Purchaser, any Master Servicer and any Depositor an assessment
of
compliance and accountants’ attestation as and when provided in paragraphs (a)
and (b) of this Section; and
18
(iv) deliver,
and cause each Subservicer and Subcontractor described in clause (iii) above,
to
deliver to the Purchaser, any Master Servicer, any Depositor and any other
Person that will be responsible for signing the certification (a “Sarbanes
Certification”) required by Rules 13a-14(d) and 15d-14(d) under the Exchange
Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of
an
asset-backed issuer with respect to a Securitization Transaction a
certification, signed by an appropriate officer of the Company, in the form
attached hereto as Exhibit A-1
The
Company acknowledges that the parties identified in clause (a)(iv) above may
rely on the certification provided by the Company pursuant to such clause in
signing a Sarbanes Certification and filing such with the
Commission. In addition to providing the Sarbanes Certification, the
Servicer shall also cooperate with the Depositor and provide such additional
information as the Depositor may reasonably request with respect
thereto.
(b) Each
assessment of compliance provided by a Subservicer pursuant to Section
2.05(a)(iii) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit B-1 hereto delivered to
the
Purchaser concurrently with the execution of this Reg AB Addendum or, in the
case of a Subservicer subsequently appointed as such, on or prior to the date
of
such appointment. An assessment of compliance provided by a
Subcontractor pursuant to Section 2.05(a)(iii) need not address any elements
of
the Servicing Criteria other than those specified by the Company pursuant to
Section 2.06.
Section
2.06. Use of
Subservicers and Subcontractors.
The
Company shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Company as servicer under the Agreement
or
any Reconstitution Agreement unless the Company complies with the provisions
of
paragraph (a) of this Section. The Company shall not hire or
otherwise utilize the services of any Subcontractor, and shall not authorize
any
Subservicer to hire or otherwise utilize the services of any Subcontractor,
to
fulfill any of the obligations of the Company as servicer under the Agreement
or
any Reconstitution Agreement unless the Company complies with the provisions
of
paragraph (b) of this Section.
(a) It
shall not be necessary for the Company to seek the consent of the Purchaser,
any
Master Servicer or any Depositor to the utilization of any
Subservicer. The Company shall cause any Subservicer used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of this Section and with Sections 2.02,
2.03(c), (e), (f) and (g), 2.04, 2.05 and 2.07 of this Agreement to the same
extent as if such Subservicer were the Company, and to provide the information
required with respect to such Subservicer under Section 2.03(d) of this
Agreement. The Company shall be responsible for obtaining from each
Subservicer and delivering to the Purchaser and any Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
2.04, any assessment of compliance and attestation required to be delivered
by
such Subservicer under Section 2.05 and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 2.05 as and when required to be
delivered. For the purposes of clarification, the covenants of this
clause (i) are applicable only with respect to those Mortgage Loans being
securitized in a Securitization Transaction pursuant to which the Company has
entered into a Reconstitution Agreement..
(b) It
shall not be necessary for the Company to seek the consent of the Purchaser,
any
Master Servicer or any Depositor to the utilization of any
Subcontractor. The Company shall within five (5) days of a request
therefor provide to the Purchaser, any Master Servicer and any Depositor (or
any
designee of the Depositor, such as a master servicer or administrator) a written
description (in form and substance satisfactory to the Purchaser, such Master
Servicer and such Depositor) of the role and function of each Subcontractor
utilized by the Company or any Subservicer, specifying (A) the identity of
each
such Subcontractor, (B) which (if any) of such Subcontractors are “participating
in the servicing function” within the meaning of Item 1122 of Regulation AB and
(C) which elements of the Servicing Criteria will be addressed in assessments
of
compliance provided by each Subcontractor identified pursuant to clause (B)
of
this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 2.05 and 2.07 of this
Reg AB Addendum to the same extent as if such Subcontractor were the
19
Company. The
Company shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and any Depositor any assessment of compliance
and
attestation and the other certifications required to be delivered by such
Subservicer and Subcontractor under Section 2.05, in each case as and when
required to be delivered. For the purposes of clarification, the
covenants of this clause (b) are applicable only with respect to those Mortgage
Loans being securitized in a Securitization Transaction pursuant to which the
Company has entered into a Reconstitution Agreement.
Section
2.07. Indemnification;
Remedies.
(a) The
Company shall indemnify the Purchaser, each affiliate of the Purchaser, and
each
of the following parties participating in a Securitization Transaction: each
sponsor and issuing entity; each Person (including but not limited to any Master
Servicer) responsible for the preparation, execution or filing of any report
required to be filed with the Commission with respect to such Securitization
Transaction, or for execution of a certification pursuant to Rule 13a-14(d)
or
Rule 15d-14(d) under the Exchange Act with respect to such Securitization
Transaction; each broker dealer acting as underwriter, placement agent or
initial purchaser, each Person who controls any of such parties or the Depositor
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act); and the respective present and former directors, officers,
employees, agents and affiliates of each of the foregoing and of the Depositor
(each, an “Indemnified Party”), and shall hold each of them harmless from and
against any claims, losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon:
(i) (A)
any untrue statement of a material fact contained or alleged to be contained
in
any information, report, certification, accountants’ letter or other material
provided under this Article II by or on behalf of the Company, or provided
under
this Article II by or on behalf of any Subservicer, Subcontractor or Third-Party
Originator (collectively, the “Company Information”), or (B) the omission
or alleged omission to state in the Company Information a material fact required
to be stated in the Company Information or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, by way of clarification, that clause (B) of
this
paragraph shall be construed solely by reference to the Company Information
and
not to any other information communicated in connection with a sale or purchase
of securities, without regard to whether the Company Information or any portion
thereof is presented together with or separately from such other
information;
(ii) any
breach by the Company under this Article II, including particularly any failure
by the Company, any Subservicer, any Subcontractor or any Third-Party Originator
to deliver any information, report, certification, accountants’ letter or other
material when and as required under this Article II, including any failure
by
the Company to identify pursuant to Section 2.06(b) any Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB; or
(iii) any
breach by the Company of a representation or warranty set forth in Section
2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of
a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Company of a representation or warranty in a writing furnished pursuant to
Section 2.02(b) to the extent made as of a date subsequent to such closing
date;
or
(iv) negligence,
bad faith or willful misconduct of the Company in connection with its
performance under this Article II.
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Company agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Company on the other
20
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
the Company shall promptly reimburse the Purchaser, any Depositor, as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Company, any Subservicer,
any
Subcontractor or any Third-Party Originator.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
(b) (i) Any
failure by the Company, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Article II, or any
breach by the Company of a representation or warranty set forth in Section
2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made as of
a
date prior to the closing date of the related Securitization Transaction, to
the
extent that such breach is not cured by such closing date, or any breach by
the
Company of a representation or warranty in a writing furnished pursuant to
Section 2.02(b) to the extent made as of a date subsequent to such closing
date,
shall, except as provided in clause (ii) of this paragraph, immediately and
automatically, without notice or grace period, constitute an Event of Default
with respect to the Company under the Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or Depositor, as
applicable, in its sole discretion to terminate the rights and obligations
of
the Company as servicer under the Agreement and/or any applicable Reconstitution
Agreement without payment (notwithstanding anything in this Agreement or any
applicable Reconstitution Agreement to the contrary) of any compensation to
the
Company (and if the Company is servicing any of the Mortgage Loans in a
Securitization Transaction, appoint a successor servicer reasonably acceptable
to the Master Servicer for such Securitization Transaction); provided that
to
the extent that any provision of the Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain rights
or obligations following termination of the Company as servicer, such provision
shall be given effect.
(ii) Any
failure by the Company, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Section 2.04 or 2.05, including any failure by the Company to identify
pursuant to Section 2.06(b) any Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB shall constitute an
Event of Default with respect to the Company under the Agreement and any
applicable Reconstitution Agreement, and shall entitle the Purchaser, any Master
Servicer or the Depositor, as applicable, in its sole discretion to terminate
the rights and obligations of the Company as servicer under the Agreement and/or
any applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement to the contrary) of any compensation to the Company;
provided that to the extent that any provision of the Agreement and/or any
applicable Reconstitution Agreement expressly provides for the survival of
certain rights or obligations following termination of the Company as servicer,
such provision shall be given effect.
Neither
the Purchaser nor any Depositor shall be entitled to terminate the rights and
obligations of the Company pursuant to this subparagraph (ii)(B) if a failure
of
the Company to identify a Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB was attributable
solely to the role or functions of such Subcontractor with respect to mortgage
loans other than the Mortgage Loans
(iii) The
Company shall promptly reimburse the Purchaser (or any designee of the
Purchaser, such as a master servicer) and any Depositor, as applicable, for
all
reasonable expenses incurred by the Purchaser (or such designee) or such
Depositor, as such are incurred, in connection with the termination of the
Company as servicer and the transfer of servicing of the Mortgage Loans to
a
successor servicer. The provisions of this paragraph shall not limit
whatever rights the Purchaser or any Depositor may have under other provisions
of the Agreement and/or any applicable Reconstitution Agreement or otherwise,
whether in equity or at law, such as an action for damages, specific performance
or injunctive relief.
Section
2.08: Additional
Provisions
21
(a) References
in this Exhibit Reg AB to “this Agreement” or words of similar import (including
indirect references to the Agreement) shall be deemed to be references to the
Existing Agreement as amended by this Exhibit Reg AB. Except as
expressly amended and modified by this Exhibit Reg AB, the Agreement shall
continue to be, and shall remain, in full force and effect in accordance with
its terms. In the event of a conflict between this Exhibit Reg AB and
any other document or agreement, including without limitation the Existing
Agreement, this Exhibit Reg AB shall control.
(b) This
Exhibit Reg AB shall be construed in accordance with the laws of the State
of
New York without regard to any conflicts of law provisions and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with the laws of the State of New York, except to the extent preempted by
Federal law.
(c) This
Exhibit Reg AB shall bind and inure to the benefit of and be enforceable by
the
Company and the Purchaser and the respective successors and assigns of the
Company and the Purchaser.
22
EXHIBIT
A-1
FORM
OF
ANNUAL CERTIFICATION
Re:
|
The
[ ] agreement dated as of [ ], 200[ ] (the
“Agreement”), among
[IDENTIFY
PARTIES]
|
I,
________________________________, the _____________________ of HSBC Mortgage
Corporation (USA), certify to [the Purchaser], [the Depositor], and the [Master
Servicer] [Securities Administrator] [Trustee], and their officers, with the
knowledge and intent that they will rely upon this certification,
that:
(1) I
have reviewed the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”),
the report on assessment of the Company’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB and identified as the responsibility
of the Company on Exhibit B-1 to the Regulation AB Compliance Addendum to the
Agreement (the “Servicing Criteria”), provided in accordance with Rules
13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended (the
“Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Company during 200[ ] that were delivered
by the Company to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee] pursuant to the Agreement (collectively, the “Company Servicing
Information”);
(2) Based
on my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on my knowledge, all of the Company Servicing Information required to be
provided by the Company under the Agreement has been provided to the [Depositor]
[Master Servicer] [Securities Administrator] [Trustee];
(4) I
am responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement in all material
respects; and
(5) The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer and Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master
Servicer]. Any material instances of noncompliance described in such
reports have been disclosed to the [Depositor] [Master Servicer]. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Date: _________________________________________
By: ___________________________________________
Name:
Title:
|
23
EXHIBIT
B-1
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”;
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
Reference
|
Criteria
|
|
General
Servicing Considerations
|
||
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(i)
|
||
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
Cash
Collection and Administration
|
||
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
24
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
||
Reference
|
Criteria
|
||
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For
purposes of this criterion, “federally insured depository institution”
with respect to a foreign financial institution means a foreign financial
institution
that
meets the requirements of Rule 13k-1 (b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after the bank statement
cutoff date, or such other number of days specified in the
transaction
agreements;
(C) reviewed and approved by someone other than the person who prepared
the reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar
days of their original identification, or such other number
of
days
specified in the transaction agreements.
|
X
|
|
Investor
Remittances and Reporting
|
|||
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A)
are prepared in accordance with timeframes and other terms
set
forth in the transaction agreements; (B) provide information calculated
in
accordance with the terms specified in the transaction agreements;
(C) are
filed with the Commission as required by its rules and regulations;
and
(D) agree with investors’ or the trustee’s records as
to
the total unpaid principal balance and number of mortgage loans serviced
by the Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
25
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
||
Reference
|
Criteria
|
||
Pool
Asset Administration
|
|||
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow)
in
accordance
with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and
concluded
in accordance with the timeframes or other requirements established
by the
transaction agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction
agreements. Such records are maintained on at least a monthly
basis, or such other period specified in the transaction agreements,
and
describe
the entity’s activities in monitoring delinquent mortgage loans including,
for example, phone calls, letters and payment rescheduling plans
in cases
where delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(
d)( 4 )(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
26
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
||
Reference
|
Criteria
|
||
1122(
d)( 4 )(x)
|
Regarding
any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the
obligor’s mortgage loan documents, on at least an annual basis, or such
other period specified in the transaction agreements; (B) interest
on
such
funds is paid, or credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such funds are returned
to
the obligor within 30 calendar days of full repayment of the related
mortgage loans, or such other number of days specified
in
the transaction agreements.
|
X
|
|
1122(
d)( 4 )(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30
calendar
days prior to these dates, or such other number of days specified
in the
transaction agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
27
[HSBC
MORTGAGE CORPORATION (USA)] [NAME OF
SUBSERVICER]
Date: _________________________________________
By: ___________________________________________
Name:
Title:
|
28
EXHIBIT
C-1
Additional
Disclosure Notification
Xxxxx
Fargo Bank, N.A. as [Securities Administrator and Master Servicer]
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn: Corporate
Trust Services – MSM 2007-7AX - SEC REPORT PROCESSING
RE: **Additional
Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section [2.03(d)][2.03(e)][2.03(f)] of Schedule III, Article
II
of the Assignment, Assumption and Recognition Agreement, dated as of April
1,
2007, among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, HSBC Mortgage
Corporation (USA), Xxxxx Fargo Bank, National Association, as Master Servicer,
and LaSalle Bank National Association as Trustee. The Undersigned
hereby notifies you that certain events have come to our attention that
[will][may] need to be disclosed on Form [ ].
Description
of Additional Form [ ] Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any
inquiries related to this notification should be directed to
[ ], phone number: [ ]; email
address: [ ].
[NAME
OF PARTY]
as
[role]
By:
__________________
Name:
Title:
|
29