Exhibit 99.10b
EXECUTION COPY
AMENDED AND RESTATED REGULATION AB COMPLIANCE ADDENDUM
TO SELLER'S PURCHASE, WARRANTIES AND SERVICING AGREEMENT
(Servicing-retained)
This Amended and Restated Regulation AB Compliance Addendum (this "Reg AB
Addendum"), dated as of April 17, 2006, by and between Xxxxxx Xxxxxxx Mortgage
Capital Inc. (the "Purchaser") and Wachovia Mortgage Corporation (the
"Company"), to that certain Seller's Purchase, Warranties and Servicing
Agreement, dated as of September 1, 2004, by and between the Company and the
Purchaser (as amended, modified or supplemented, the "Agreement").
WITNESSETH
WHEREAS, the Company and the Purchaser have previously agreed to adopt an
addendum to the Agreement (the "Original Reg AB Addendum") to reflect the
intention of the parties to comply with Regulation AB;
WHEREAS, the Company and the Purchaser have agreed to amend and restate
the terms of the Original Reg AB Addendum.
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 any Securitization Transaction, the
"master servicer," if any, identified in the related transaction documents.
Qualified Correspondent: Any Person from which the Company purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Company and
such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale to
the Company, in accordance with underwriting guidelines designated by the
Company ("Designated Guidelines") or guidelines that do not vary materially from
such Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten
as described in clause (i) above and were acquired by the Company within 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.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a sale or
other transfer of some or all of the Mortgage Loans directly or indirectly by
the Purchaser to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or (2)
an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Servicer: As defined in Section 2.03(c).
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB for which the Company is responsible in its capacity as Servicer
as identified on Exhibit B hereto, provided that such Exhibit B 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
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securities market) of Mortgage Loans but performs one or more discrete functions
identified in Item l122(d) of Regulation AB with respect to Mortgage Loans under
the direction or authority of the Company or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of the
Company or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion of
the material servicing functions identified in Item 1122(d) of Regulation AB
that are required to be performed by the Company under this Agreement or any
Reconstitution Agreement.
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.
ARTICLE II
COMPLIANCE WITH REGULATION AB
Section 2.01. Intent of the Parties; Reasonableness.
The Purchaser and the Company acknowledge and agree that the purpose of
Article II of this Reg AB Addendum is to facilitate compliance by the Purchaser
and any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission and that the provisions of this Reg AB Addendum
shall be applicable to all Mortgage Loans included in a Securitization
Transaction closing on or after January 1, 2006, regardless whether the Mortgage
Loans were purchased by the Purchaser from the Company prior to the date hereof.
Although Regulation AB is applicable by its terms only to offerings of
asset-backed securities that are registered under the Securities Act, the
Company acknowledges that investors in privately offered securities may require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private offerings.
Neither the Purchaser nor any Depositor shall exercise its right to
request delivery of information or other performance under these provisions
other than in good faith, or for purposes other than compliance with the
Securities Act, the Exchange Act and the rules and regulations of the Commission
thereunder (or the provision in a private offering of disclosure comparable to
that required under the Securities Act). The Company acknowledges that
interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agrees to comply with reasonable requests made by the
Purchaser 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
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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 prior to, 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.
The Purchaser shall cooperate with the Company by providing timely notice
of requests for information under these provisions and by reasonably limiting
such requests to information necessary, in the Purchaser's reasonable judgment,
to comply with Regulation AB.
Section 2.02. Additional Representations and Warranties 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
preceding the related Securitization Transaction; (v) there are no aspects of
the Company's financial condition that are reasonably expected to have a
material adverse effect on the performance by the Company of its servicing
obligations under this Agreement or any Reconstitution Agreement; (vi) there are
no material legal or governmental proceedings pending (or known to be
contemplated) against the Company, any Subservicer or any Third-Party
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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.
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
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faith judgment of the Purchaser or any Depositor, to an analysis of the
performance of the Mortgage Loans, including the originators'
credit-granting or underwriting criteria for mortgage loans of similar
type(s) as the Mortgage Loans and such other information as the Purchaser
or any Depositor may reasonably request for the purpose of compliance with
Item 1110(b)(2) of Regulation AB;
(C) a description of any legal or governmental proceedings 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 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) vintage origination year 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. The
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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 calendar months commencing
January 1, 2006, as the Purchaser or such Depositor shall reasonably request.
Such 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
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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;
(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;
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(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 its 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 notify the Purchaser, any Master Servicer and any Depositor in writing
of (A) any litigation or governmental proceedings pending against the Company,
any Subservicer or any Third-Party Originator that would be material to
securityholders, (B) any affiliations or relationships that develop following
the closing date of a Securitization Transaction between the Company, any
Subservicer or any Third-Party Originator and any of the parties specified in
clause (D) of paragraph (a) of this Section (and any other parties identified in
writing by the requesting party) with respect to such Securitization
Transaction, but only to the extent that such affiliations or relationships do
not include the Purchaser, Depositor or any of their respective affiliates as a
party, (C) any Event of Default under the terms of the Agreement or any
Reconstitution Agreement, and (D) any merger, consolidation or sale of
substantially all of the assets of the Company and (E) the Company's entry into
an agreement with a Subservicer to perform or assist the Company with the
performance of any of the Company's obligations under the Agreement or any
Reconstitution Agreement, and (ii) provide to the Purchaser and any Depositor a
description of such events, 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 to the Purchaser and any Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, all information
reasonably requested 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 the 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
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such Subservicer has knowledge, provide to the party responsible for filing such
report (including, if applicable, the Master Servicer) notice of the occurrence
of any of the following events along with all information, data, and materials
related thereto as may be required to be included in the related distribution
report on Form 10-D (as specified in the provisions of Regulation AB referenced
below):
(i) any material modifications, extensions or waivers of pool asset
terms, fees, penalties or payments during the distribution period or that
have cumulatively become material over time (Item 1121(a)(11) of
Regulation AB);
(ii) material breaches of pool asset representations or warranties
or transaction covenants (Item 1121(a)(12) of Regulation AB); and
(iii) information regarding any pool asset changes (such as
additions, substitutions or repurchases), and any material changes in
origination, underwriting or other criteria for acquisition or selection
of pool assets (Item 1121(a)(14) of Regulation AB).
(g) The Company shall provide to the Purchaser, any Master Servicer and
any Depositor, evidence of the authorization of the Person signing any
certification or statement, copies or other evidence of Fidelity Bond Insurance
and Errors and Omission Insurance policy, financial information and reports, and
such other information related to the Company or any Subservicer or the Company
or such Subservicer's performance hereunder as may be reasonably requested by
the Purchaser, any Master Servicer or any Depositor.
(h) Any written notice to be provided pursuant to Sections 2.03(d), (e) or
(g) hereof shall be in the form of the Additional Disclosure Notification
attached hereto as Exhibit C.
Section 2.04. Servicer Compliance Statement.
On or before March 1, but in no event later than March 15, of each
calendar year, commencing in 2007, the Company shall deliver to the Purchaser
and any Depositor a statement of compliance addressed to the Purchaser 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 1, but in no event later than March 15, of each
calendar year, commencing in 2007, the Company shall:
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(i) deliver to the Purchaser and any Depositor a report (in form and
substance reasonably satisfactory to the Purchaser 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 a certification
substantially in the form of Exhibit B hereto delivered to the Purchaser
concurrently with the execution of this Reg AB Addendum;
(ii) deliver to the Purchaser and any Depositor a report of a
registered public accounting firm reasonably acceptable to the Purchaser
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, to
deliver to the Purchaser and any Depositor an assessment of compliance and
accountants' attestation as and when provided in paragraphs (a) and (b) of
this Section; and
(iv) deliver, and cause each Subservicer and Subcontractor described
in clause (iii) above to deliver, to the Purchaser, the 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. 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.
The Company acknowledges that the parties identified in clause (a)(iv) above may
rely on the certification provided by the Company pursuant to such clause in
signing a Sarbanes Certification and filing such with the Commission. Neither
the Purchaser nor any Depositor will request delivery of a certification under
clause (a)(iv) above unless a Depositor is required under the Exchange Act to
file an annual report on Form 10-K with respect to an issuing entity whose asset
pool includes Mortgage Loans.
(b) Each assessment of compliance provided by a Subservicer pursuant to
Section 2.05(a)(iii) shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit B hereto delivered to the
Purchaser concurrently with the execution of this Reg AB Addendum or, in the
case of a Subservicer subsequently appointed as such, on or prior to the date of
such appointment. An assessment of compliance provided by a Subcontractor
pursuant to Section 2.05(a)(iii) need not address any elements of the Servicing
Criteria other than those specified by the Company pursuant to Section 2.06.
11
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) The Company shall not hire or otherwise utilize the services of any
Subservicer with respect to the Mortgage Loans without giving the Purchaser or
its designee fifteen (15) calendar days' advance written notice of the effective
date of such hiring or utilization of a Subservicer, followed by written
confirmation of such hiring or utilization of a Subservicer on the effective
date of such engagement and indicating the circumstances surrounding such hiring
or utilization. Any notices required by this Subsection 2.06(a) shall be sent
via telecopier or certified or registered mail to the addresses set forth below:
Xxxx X. Xxxxxxxx, Servicer Oversight Group, 0000 X-Xxx Xxxxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxx 00000, Telecopy: 000-000-0000, and emailed to:
xxxxx_xxxxxxxx_xxxxxx@xxxxxxxxxxxxx.xxx, with a copy to Xxxxxxx Xxxxxx,
Cadwalader, Xxxxxxxxxx & Xxxx, LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, Telecopy: 000-000-0000, Email: xxxxxxx.xxxxxx@xxx.xxx (or such
other address as such Person may otherwise specify to Company). 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 Subsections 2.02, 2.03(c), (e), (f) and (g), 2.04, 2.05,
2.06(a) and 2.07 of this Reg AB Addendum to the same extent as if such
Subservicer were the Company, and to provide the information required with
respect to such Subservicer under Subsection 2.03(d) of this Reg AB Addendum.
The Company shall be responsible for obtaining from each Subservicer and
delivering to the Purchaser and any Depositor any servicer compliance statement
required to be delivered by such Subservicer under Subsection 2.04, any
assessment of compliance and attestation required to be delivered by such
Subservicer under Subsection 2.05 and any certification required to be delivered
to the Person that will be responsible for signing the Sarbanes Certification
under Subsection 2.05 as and when required to be delivered.
(b) It shall not be necessary for the Company to seek the consent of the
Purchaser or any Depositor to the utilization of any Subcontractor. The Company
shall promptly upon written request provide to the Purchaser and any Depositor
(or any designee of the Depositor, such as a master servicer or administrator) a
written description (in form and substance reasonably satisfactory to the
Purchaser and such Depositor) of the role and function of each Subcontractor
utilized by the Company or any Subservicer, specifying (i) the identity of each
such Subcontractor that is "participating in the servicing function" within the
meaning of Item 1122 of Regulation AB as determined by the Company and (ii)
which elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause (i) 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
12
cause any such Subcontractor used by the Company (or by any Subservicer) for the
benefit of the Purchaser and any Depositor to comply with the provisions of
Sections 2.05 and 2.07 of this Reg AB Addendum to the same extent as if such
Subcontractor were the Company. The Company shall be responsible for obtaining
from each Subcontractor and delivering to the Purchaser and any Depositor any
assessment of compliance and attestation required to be delivered by such
Subcontractor under Section 2.05, in each case as and when required to be
delivered.
Section 2.07. Indemnification; Remedies.
(a) The Company shall indemnify the Purchaser, each affiliate of the
Purchaser, and each of the following parties participating in a Securitization
Transaction: each Sponsor; each Person 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 and agents of each of the foregoing and of the
Depositor, and shall hold each of them harmless from and against any 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 in written or electronic form 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;
(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
13
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 losses, damages, penalties, fines, forfeitures, legal fees and expenses
and related costs, judgments and any other costs, fees and expenses 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, any
Subservicer, any Subcontractor or any Third-Party Originator on the other.
In the case of any failure of performance described in clause (a)(ii) of
this Section, the Company shall promptly reimburse the Purchaser, any Depositor,
as applicable, and each Person responsible for the preparation, execution or
filing of any report required to be filed with the Commission with respect to
such Securitization Transaction, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such party
in order to obtain the information, report, certification, accountants' letter
or other material not delivered as required by the Company, any Subservicer, any
Subcontractor or any Third-Party Originator.
This indemnification shall survive the termination of this Agreement or
the termination of any party to this Agreement.
(b) (i) Any failure by the Company, any Subservicer, any Subcontractor or
any Third-Party Originator to deliver any information, report, certification,
accountants' letter or other material when and as required under this Article
II, or any breach by the Company of a representation or warranty set forth in
Section 2.02(a) or in a writing furnished pursuant to Section 2.02(b) and made
as of a date prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by such closing date,
or any breach by the Company of a representation or warranty in a writing
furnished pursuant to Section 2.02(b) to the extent made as of a date subsequent
to such closing date, shall, except as provided in clause (ii) of this
paragraph, immediately and automatically, without notice or grace period,
constitute an Event of Default with respect to the Company under the Agreement
and any applicable Reconstitution Agreement, and shall entitle the Purchaser or
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.
14
(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 (except as provided below) any
failure by the Company to identify pursuant to Section 2.06(b) any Subcontractor
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, which continues unremedied for ten calendar days after the date
on which such information, report, certification or accountants' letter was
required to be delivered shall constitute an Event of Default with respect to
the Company under the Agreement and any applicable Reconstitution Agreement, and
shall entitle the Purchaser 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 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 (b)(ii) 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.
15
IN WITNESS WHEREOF, the Purchaser and the Company have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.,
as Purchaser
By:_____________________________________
Name:___________________________________
Title:__________________________________
WACHOVIA MORTGAGE CORPORATION,
as Company
By:_____________________________________
Name:___________________________________
Title:__________________________________
[Signature Page to Amended and Restated Regulation AB Compliance Addendum
(servicing-retained)]
EXHIBIT A
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the "Agreement"), among
[IDENTIFY PARTIES]
I, ________________________________, the _____________________ of Wachovia
Mortgage Corporation, certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their officers, with
the knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB and
identified as the responsibility of the Company on Exhibit B to the
Regulation AB Compliance Addendum to the Agreement (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Item
1122 of Regulation AB (the "Servicing Assessment"), the registered public
accounting firm's attestation report provided in accordance with Rules
13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of Regulation
AB (the "Attestation Report"), and all servicing reports, officer's
certificates and other information relating to the servicing of the
Mortgage Loans by the Company during 200[ ] that were delivered by the
Company to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee] pursuant to the Agreement (collectively, the "Company Servicing
Information");
(2) Based on my knowledge, the Company Servicing Information, taken
as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in
the light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Company
Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee];
(4) I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Company has fulfilled its obligations under
the Agreement in all material respects; and
(5) The Compliance Statement required to be delivered by the Company
pursuant to the Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the Company and by any Subservicer or
Subcontractor pursuant to the Agreement, have been provided to the
[Depositor] [Master Servicer]. Any material
A-1
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:__________________________________
A-2
EXHIBIT B
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria";
--------------------------- --------------------------------------------------------------------------- ---------------------------
Applicable
Servicing Criteria Servicing Criteria
--------------------------- --------------------------------------------------------------------------- ---------------------------
Reference Criteria
--------------------------- --------------------------------------------------------------------------- ---------------------------
General Servicing Considerations
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or X
other triggers and events of default in accordance with the transaction
agreements.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, X
policies and procedures are instituted to monitor the third party's
performance and compliance with such servicing activities.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up
servicer for the mortgage loans are maintained.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party X
participating in the servicing function throughout the reporting period
in the amount of coverage required by and otherwise in accordance with
the terms of the transaction agreements.
--------------------------- --------------------------------------------------------------------------- ---------------------------
Cash Collection and Administration
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial X
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.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor X
or to an investor are made only by authorized personnel.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or X
distributions, and any interest or other fees charged for such advances,
are made, reviewed and approved as specified in the transaction
agreements.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts X
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.
--------------------------- --------------------------------------------------------------------------- ---------------------------
B-1
--------------------------- --------------------------------------------------------------------------- ---------------------------
Applicable
Servicing Criteria Servicing Criteria
--------------------------- --------------------------------------------------------------------------- ---------------------------
Reference Criteria
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository X
institution as set forth in the transaction agreements. For purposes of
this criterion, "federally insured depository institution" with respect
to a foreign financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange Act.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. X
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed X
securities related bank accounts, including custodial accounts and
related bank clearing accounts. These reconciliations are (A)
mathematically accurate; (B) prepared within 30 calendar days after the
bank statement cutoff date, or such other number of days specified in the
transaction agreements; (C) reviewed and approved by someone other than
the person who prepared the reconciliation; and (D) contain explanations
for reconciling items. These reconciling items are resolved within 90
calendar days of their original identification, or such other number of
days specified in the transaction agreements.
--------------------------- --------------------------------------------------------------------------- ---------------------------
Investor Remittances and Reporting
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, X
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.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with X
timeframes, distribution priority and other terms set forth in the
transaction agreements.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to X
the Servicer's investor records, or such other number of days specified
in the transaction agreements.
--------------------------- --------------------------------------------------------------------------- ---------------------------
B-2
--------------------------- --------------------------------------------------------------------------- ---------------------------
Applicable
Servicing Criteria Servicing Criteria
--------------------------- --------------------------------------------------------------------------- ---------------------------
Reference Criteria
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with X
cancelled checks, or other form of payment, or custodial bank statements.
--------------------------- --------------------------------------------------------------------------- ---------------------------
Pool Asset Administration
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the X
transaction agreements or related mortgage loan documents.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the X
transaction agreements
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, X
reviewed and approved in accordance with any conditions or requirements
in the transaction agreements.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance X
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.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the X
Servicer's records with respect to an obligor's unpaid principal balance.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage X
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.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, X
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.
--------------------------- --------------------------------------------------------------------------- ---------------------------
B-3
--------------------------- --------------------------------------------------------------------------- ---------------------------
Applicable
Servicing Criteria Servicing Criteria
--------------------------- --------------------------------------------------------------------------- ---------------------------
Reference Criteria
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a X
mortgage loan is delinquent in accordance with the transaction
agreements. Such records are maintained on at least a monthly basis, or
such other period specified in the transaction agreements, and describe
the entity's activities in monitoring delinquent mortgage loans
including, for example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary (e.g., illness or
unemployment).
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with X
variable rates are computed based on the related mortgage loan documents.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow X
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.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) X
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.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on X
behalf of an obligor are paid from the servicer's funds and not charged
to the obligor, unless the late payment was due to the obligor's error or
omission.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business X
days to the obligor's records maintained by the servicer, or such other
number of days specified in the transaction agreements.
--------------------------- --------------------------------------------------------------------------- ---------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and X
recorded in accordance with the transaction agreements.
--------------------------- --------------------------------------------------------------------------- ---------------------------
B-4
--------------------------- --------------------------------------------------------------------------- ---------------------------
Applicable
Servicing Criteria Servicing Criteria
--------------------------- --------------------------------------------------------------------------- ---------------------------
Reference Criteria
--------------------------- --------------------------------------------------------------------------- ---------------------------
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.
--------------------------- --------------------------------------------------------------------------- ---------------------------
B-5
[WACHOVIA MORTGAGE CORPORATION]
[NAME OF SUBSERVICER]
Date:
By:________________________________
Name:
Title:
B-6
EXHIBIT C
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 2006-5AR - 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 the Regulation
AB Compliance Addendum, dated as of November 22, 2005, as amended by the
Assignment, Assumption and Recognition Agreement dated as of March 1, 2006 among
Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Wachovia Mortgage Corporation,
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:
C-1
